Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 25189/94

Ivan Prelo?ník

against

the Slovak Republic

REPORT OF THE COMMISSION

(adopted on 3 December 1997)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-5) 1

II. ESTABLISHMENT OF THE FACTS

(paras. 6-18) 2

III. OPINION OF THE COMMISSION

(paras. 19-33) 4

A. Complaint declared admissible

(para. 19) 4

B. Point at issue

(para. 20) 4

C. As regards Article 6 para. 1 of the Convention

(paras. 21-33) 4

CONCLUSION

(para. 33) 5

DISSENTING OPINION OF Mr F. MARTINEZ 6

APPENDIX : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION 7

I. INTRODUCTION

1. The present Report concerns Application No. 25189/94 introduced on 20

April 1994 against the Slovak Republic and registered on 19 September 1994.

The applicant is a Slovak citizen, born in 1956 and resident in

Bratislava.

The respondent Government are represented by their Agent, Mr. Robert Fico.

2. The application was communicated to the Government on 29 November 1995.

Following an exchange of written observations, the complaint relating to the

length of proceedings (Article 6 para. 1 of the Convention) was declared

admissible on 15 January 1997. The decision on admissibility is appended to

this Report.

3. Having noted that there is no basis upon which a friendly settlement

within the meaning of Article 28 para. 1(b) of the Convention can be secured,

the Commission (Second Chamber), after deliberating, adopted this Report on 3

December 1997 in accordance with Article 31 para. 1 of the Convention, the

following members being present:

Mrs. G.H. THUNE, President

MM. G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. ŠVÁBY

P. LORENZEN

E. BIELI?NAS

E.A. ALKEMA

A. ARABADJIEV

4. In this Report the Commission states its opinion as to whether the facts

found disclose a violation of the Convention by the Slovak Republic.

5. The text of this Report is now transmitted to the Committee of Ministers

of the Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

II. ESTABLISHMENT OF THE FACTS

6. On 16 June 1991 the applicant bought a business at a public auction. At

the same time he acquired the right to a five year lease of the premises. On 23

August 1991 the applicant was informed that the building where his business was

situated would undergo reconstruction. For this reason the grant of the lease

was delayed. Since the lease comprised a break clause, he could not run his

business properly.

7. On 22 May 1992 the applicant lodged a claim for damages with the

Bratislava 1 District Court (Obvodný súd). On 23 July 1992, at the court's

request, he quantified the damage he had suffered. The applicant also asked the

Bratislava City Court (Mestský súd) to waive court fees on the ground of his

indigence.

8. On 8 September 1992 the Bratislava 1 District Court informed the applicant

that under the rules in force the President of the Bratislava City Court could

only waive or reduce court fees if they did not exceed 20,000 Czechoslovak

crowns, whereas the fees in the applicant's case amounted to 54,544 crowns. The

applicant was further informed that he could request a waiver of court fees

under Section 138 para. 1 of the Code of Civil Procedure. The court asked him

either to pay the fees within 15 days or to lodge, within the same time limit, a

completed request for waiver including documents proving his indigence.

9. On 19 October 1992 the Bratislava 1 District Court stayed the proceedings

as the applicant had failed either to pay the fees or to lodge, within the time

limit, an appropriate request for their waiver.

10. On 16 November 1992 the applicant appealed against the aforesaid decision

to the Bratislava 1 District Court. He claimed that he could not pay the fees

because of his indigence, and that he had not applied for a waiver since he had

been informed by the first instance court that fees could only be waived if they

did not exceed 20,000 crowns.

11. On 21 June 1993 the applicant complained of the length of the proceedings

concerning his case with the Ministry of Justice. On 20 January 1994 the Vice-

President of the Bratislava 1 District Court, to whom the complaint had been

transmitted, dismissed it on the ground that the decision of 19 October 1992 had

become final on 23 November 1992 as the applicant had failed to lodge an appeal

against it.

12. The applicant then lodged a complaint with the President of the Bratislava

City Court. On 23 May 1994 the latter found that the applicant was justified in

his complaint. She apologised to the applicant, and the fees for the complaint

were paid back to him. The applicant was also informed that the President of

the Bratislava 1 District Court would be requested to arrange for submitting the

case to the appellate court. On 24 June 1994 the Vice-President of the District

Court transferred the case to the Bratislava City Court.

13. On 12 September 1994 the Bratislava City Court dealing with the

applicant's appeal quashed the decision of the Bratislava 1 District Court and

ordered the District Court to deal with the case again. On 23 September 1994

the Bratislava 1 District Court received this ruling. On 31 October and 7

November 1994 the applicant was served in persona and by mail with the ruling.

14. On 21 December 1994 the applicant requested the Bratislava 1 District

Court to amend the defendant to the proceedings. Upon this request, the Vice-

President of the Court summoned the applicant for a meeting on 22 March 1995.

On 10 March 1995 the applicant received the summons.

15. On 22 March 1995 the applicant appeared and the meeting in question was

held.

16. On 7 June 1995 the applicant asked the Bratislava 1 District Court to add

a further defendant to the proceedings and to amend the amount of interest on

the late payments. He also informed the Court that he wished to withdraw his

request for waiver of the court fees.

17. On 9 February 1996 the Bratislava 1 District Court dismissed the

applicant's request to add a further defendant and stayed the proceedings as the

original defendant did not have legal status. On 25 April 1996 the Bratislava

City Court confirmed the Bratislava 1 District Court's decision.

18. On 16 May 1996 the Constitutional Court (Ústavný súd) declared

inadmissible the applicant's "podnet" introduced on 12 March 1996 as he was not

represented by a lawyer.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

19. The Commission has declared admissible the applicant's complaint that his

case has not been heard within a reasonable time and that he has suffered

further damage by the inactivity of the courts.

B. Point at issue

20. The only point at issue is whether the length of the proceedings

complained of has exceeded the "reasonable time" requirement referred to in

Article 6 para. 1 (Art. 6-1) of the Convention.

C. As regards Article 6 para. 1 (Art. 6-1) of the Convention

21. The relevant part of Article 6 para. 1 (Art. 6-1) of the Convention

provides as follows:

"In the determination of his civil rights and obligations ..., everyone is

entitled to a hearing within a reasonable time by [a] tribunal ..."

22. The Commission would first note that the applicant's claim that he

suffered damage by reason of the inactivity of the courts is a matter relating

to the damages suffered as a result of the length of the proceedings. It will

therefore fall to be considered, if at all, in the context of Article 50 (Art.

50) or Article 32 para. 2 (Art. 32-2) of the Convention.

23. The proceedings in question concerned the applicant's claim for damages he

had incurred in connection with the fact that it was impossible to run his

business properly on the premises he had leased but which were to be

reconstructed. The purpose of the proceedings was to obtain a decision in a

dispute over "civil rights and obligations", and they accordingly fall within

the scope of Article 6 para. 1 (Art. 6-1) of the Convention.

24. The proceedings, which started on 22 May 1992 and ended on 25 April 1996

by the stay of proceedings, lasted three years and eleven months.

25. The Commission recalls that the reasonableness of the length of

proceedings must be assessed in the light of the particular circumstances of

the case and with the help of the following criteria: the complexity of the

case, the conduct of the parties and the conduct of the authorities dealing with

the case (see Eur. Court HR, Vernillo v. France judgment of 20 February 1991,

Series A no. 198, p. 12, para. 30).

26. The applicant submits that the overall length of the proceedings exceeds

any notion of reasonableness.

27. The respondent Government do not give any explanation to justify the

reasonableness of the length of the proceedings in question.

28. In the present case the courts concerned were called upon to decide on the

applicant's claim for damages. In the Commission's opinion the case was not,

therefore, particularly complex, notwithstanding the fact that no decision was

ever taken on the merits.

29. The Commission finds that the applicant contributed to the length of the

proceedings by his requests for change of the defendant and for the addition of

a further defendant, submitted to the Bratislava I District Court on 21 December

1994 and 7 June 1995, respectively. However, in the Commission's view, the

applicant's conduct alone cannot explain the overall length of the proceedings.

30. In respect to the conduct of the Slovak courts, the Commission notes that

the applicant's appeal introduced on 16 November 1992 against the decision of 19

October 1992, by which the Bratislava I District Court stayed the proceedings,

was dealt with by the Bratislava City Court on 12 September 1994 (i.e. with a

lapse of more than one year and nine months). The Commission further notes a

period of inactivity between 7 June 1995 and 9 February 1996, i.e. eight months,

which occurred between the applicant's request for addition of a further

defendant and the decision of the Bratislava I District Court. In view of these

circumstances the Commission considers that it cannot be said that the courts

were diligent in the conduct of the case. They are therefore mainly responsible

for the overall length of the proceedings.

31. The Commission reaffirms that it is for Contracting States to organise

their legal system in such a way that their courts can guarantee the right of

everyone to obtain a final decision on disputes relating to civil rights and

obligations within a reasonable time (see Eur. Court HR, Vocaturo v. Italy

judgment of 24 May 1991, Series A no. 206-C, p. 32, para. 17).

32. In the light of the criteria established by the case-law and having regard

to the circumstances of the present case, the Commission considers that the

length of the proceedings was excessive and failed to meet the "reasonable time"

requirement.

CONCLUSION

33. The Commission concludes, by 12 votes to 2, that in the present case there

has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

(Or. French)

DISSENTING OPINION OF Mr F. MARTINEZ

J'estime, pour ma part, que la Commission n'est pas compétente pour

examiner le bien-fondé de cette affaire. En effet, l'article 26 de la Convention

stipule clairement que "la Commission ne peut être saisie qu'après l'épuisement

des voies de recours internes". Or, faute pour le requérant d'avoir fait usage

des voies de droit mises à sa disposition en droit interne, la Commission ne

saurait statuer sur le fond de la requête.

A maintes reprises, la Commission a affirmé que, lorsqu'une voie de droit

interne est irrecevable pour vice de forme imputable au requérant, l'épuisement

des voies de recours internes au sens de l'article 26 de la Convention ne se

trouve pas réalisé.

Dans le cas d'espèce, la Cour constitutionnelle de l'Etat défendeur a

déclaré irrecevable le "podnet" introduit par le requérant sans le concours d'un

avocat. Donc, selon la jurisprudence constante de la Commission, les voies de

recours internes n'ont pas été épuisées.

APPENDIX

DECISION OF THE COMMISSION

AS TO THE ADMISSIBILITY OF

Application No. 25189/94

by Ivan Prelo?ník

against the Slovak Republic

__________

The European Commission of Human Rights (Second Chamber) sitting in

private on 15 January 1997, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. ŠVÁBY

P. LORENZEN

E. BIELI?NAS

E.A. ALKEMA

Mrs. M-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection of Human

Rights and Fundamental Freedoms;

Having regard to the application introduced on 20 April 1994 by Ivan

PRELO?NÍK against the Slovak Republic and registered on 19 September 1994 under

file No. 25189/94;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of the

Commission;

- the observations submitted by the respondent Government on 14 February

1996 and the observations in reply submitted by the applicant on 14 March 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Slovak citizen born in 1956. He is a businessman and

resides in Bratislava.

The facts of the case, as submitted by the parties, may be summarised as

follows.

A. The particular circumstances of the case:

On 16 June 1991 the applicant bought a business at a public auction. At

the same time he acquired the right to a five year lease of the premises.

On 23 August 1991 the applicant was informed that the building where his

business was situated would undergo reconstruction. For this reason the grant

of the lease was delayed. Since the lease comprised a break clause, the

applicant could not run his business properly.

On 22 May 1992 the applicant lodged a claim for damages with the

Bratislava 1 District Court (Obvodný súd). On 23 July 1992, at the court's

request, he quantified the damage he had suffered. The applicant also asked the

Bratislava City Court (Mestský súd) to waive court fees on the ground of his

indigence.

On 8 September 1992 the Bratislava 1 District Court informed the applicant

that under the rules in force the President of the Bratislava City Court could

only waive or reduce court fees if they did not exceed 20,000 Czechoslovak

crowns, whereas the fees in the applicant's case amounted to 54,544 crowns.

The applicant was further informed that he could request a waiver of court

fees under Section 138 para. 1 of the Code of Civil Procedure. The court asked

him either to pay the fees within 15 days or to lodge, within the same time

limit, a completed request for waiver including documents proving his indigence.

On 19 October 1992 the Bratislava 1 District Court stayed the proceedings

as the applicant had failed either to pay the fees or to lodge, within the time

limit, an appropriate request for their waiver.

On 16 November 1992 the applicant appealed against the aforesaid decision

to the Bratislava 1 District Court. He claimed that he could not pay the fees

because of his indigence, and that he had not applied for a waiver since he had

been informed by the first instance court that fees could only be waived if they

did not exceed 20,000 crowns.

On 21 June 1993 the applicant complained of the length of the proceedings

concerning his case with the Ministry of Justice. On 20 January 1994 the Vice-

President of the Bratislava 1 District Court, to whom the complaint had been

transmitted, dismissed it on the ground that the decision of 19 October 1992 had

become final on 23 November 1992 as the applicant had failed to lodge an appeal

against it.

The applicant then lodged a complaint with the President of the Bratislava

City Court. On 23 May 1994 the latter found that the applicant was justified in

his complaint. She apologised to the applicant, and the fees for the complaint

were paid back to him. The applicant was also informed that the President of

the Bratislava 1 District Court would be requested to arrange for submitting the

case to the Appellate Court.

On 24 June 1994 the Vice-President of the Bratislava 1 District

Court transferred the case to the Bratislava City Court.

On 12 September 1994 the Bratislava City Court dealing with the

applicant's appeal quashed the decision of the Bratislava 1 District Court and

ordered the District Court to deal with the case again. On 23 September 1994

the Bratislava 1 District Court received this ruling. On 31 October and 7

November 1994 the applicant was served in persona and by mail with the ruling.

On 21 December 1994 the applicant requested the Bratislava 1 District

Court to change the defendant. Upon this request, the Vice-President of the

Court summoned the applicant for a meeting on 22 March 1995. On 10 March 1995

the applicant received the summons.

On 22 March 1995 the applicant appeared and the meeting in question was

held.

On 7 June 1995 the applicant asked the Bratislava 1 District Court to add

another defendant to the proceedings, to amend the amount of interest of the

late payments and to disclaim the waiver of court fees.

On 9 February 1996 the Bratislava 1 District Court dismissed the

applicant's request to add a further defendant and stayed the proceedings as the

original defendant did not have legal status.

From the applicant's most recent submissions it appears that he appealed

to the Bratislava City Court, which on 25 April 1996 confirmed the Bratislava 1

District Court's decision.

On 16 May 1996 the Constitutional Court (Ústavný súd) declared

inadmissible the applicant's "podnet" introduced in March 1996 as he was not

represented by a lawyer.

B. Relevant domestic law and case-law:

Article 48 para. 2 of the Constitution provides:

"Every person has the right to have his or her case tried publicly without

unreasonable delay ..."

Pursuant to Section 6 of the Code of Civil Procedure, when examining cases

the courts are to proceed in cooperation with all participants so that, inter

alia, the protection of rights is expeditious and effective.

Under Section 6 of the Courts and Judges Act (Zákon o súdoch a sudcoch)

complaint about delays in court proceedings may be put to the authorities

responsible for the State administration of courts.

According to Section 17 para. 1 of the State Administration of Courts Act

(Zákon o sídlach a obvodoch súdov Slovenskej republiky, štátnej správe súdov,

vybavovaní s?a?ností a o vo?bách prísediacich) No. 80/1992, any natural person

or corporation can turn to State authorities responsible for the administration

of courts (the Ministry of Justice, the President and Vice-President of the

Supreme Court and the Presidents and Vice-Presidents of Regional and District

Courts) with complaints only in cases of delayed proceedings or misconduct

caused by improper performance of and/or undignified interference with the

proceedings by officers of the court. According to Sections 24 - 27 of the Act

the responsible authority is required to establish all relevant facts and, if

necessary, hear the persons concerned. Examination of the complaint is to be

terminated within two months, and the applicant is to be informed in writing of

the conclusion. When the complaint has been dealt with by the President of a

District Court, an applicant is entitled to request a review of the conclusion

by the President of the appropriate Regional Court.

According to Article 130 para. 3 of the Constitution, the Constitutional

Court can commence proceedings upon the "podnet" presented by any individual or

a corporation claiming that their rights have been violated.

In a judgment of 25 October 1995, the Constitutional Court found a

violation of the petitioner's right to have his case tried without unreasonable

delay guaranteed by Article 48 para. 2 of the Constitution.

Pursuant to Section 18 of Act No. 58/1969 on Liability for Damage Caused

by a State Organ's Decision or by an Erroneous Official Act ("the State

Liability Act"), as amended, the State is responsible for the damage caused by

erroneous official acts committed by persons who carry out tasks vested in State

organs.

COMPLAINTS

The applicant complains of the length of the proceedings concerning his

claim for damages. He alleges that by inactivity of the courts he has suffered

further damage, and claims compensation. He invokes Article 6 para. 1 of the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 20 April 1994 and registered on 19

September 1994.

On 29 November 1995 the Commission decided to communicate the application

to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of

Procedure.

The Government's written observations were submitted on 14 February 1996.

The applicant's observations in reply were submitted on 14 March 1996.

THE LAW

The applicant complains, under Article 6 para. 1 of the Convention, about

the length of the proceedings concerning his claim for damages. He alleges that

by the inactivity of the courts he has suffered further damage, and claims

compensation.

Article 6 para. 1 of the Convention provides, as far as relevant:

"In the determination of his civil rights and obligations ..., everyone is

entitled to ... a ... hearing within a reasonable time ..."

The Government submit that the applicant has not exhausted the domestic

remedies which were at his disposal, and that the application should be declared

inadmissible on this ground. The applicant has failed to file either a

complaint under Section 17 para. 1 of the State Administration of Courts Act No.

80/1992 and/or a "podnet" as provided by Section 130 para. 3 of the

Constitution. In support of their argument the Government invoke the

Constitutional Court's judgment of 25 October 1995. They add that a

Constitutional Court's finding of a violation of a fundamental right or freedom

entitles the person concerned to claim damages pursuant to Act No. 58/1969.

The applicant has expressed doubts about effectiveness of these remedies.

The Commission observes that when the applicant lodged the present

application the proceedings were pending before the first instance court. Thus,

it is necessary to consider the effectiveness of the domestic remedies in

question in the light of this fact.

The Commission recalls the Convention organs' case-law, according to which

the decisive question in assessing the effectiveness of a remedy concerning a

complaint about the length of proceedings is whether the applicant can raise

this complaint before domestic courts by claiming specific redress; in other

words, whether a remedy exists that could answer his complaints by providing a

direct and speedy, and not merely indirect, protection of the rights guaranteed

in Article 6 para. 1 of the Convention (cf. Eur. Court HR, Deweer v. Belgium

judgment of 27 February 1980, Series A no. 35, p. 16, para. 29). It is

incumbent on the Government claiming non-exhaustion of domestic remedies to show

that the remedy was an effective one available in theory and in practice at the

relevant time, that is to say, that it was accessible, was one which was capable

of providing redress in respect of the applicant's complaints and offered

reasonable prospects of success (cf. Eur. Court HR, Akdivar and Others v. Turkey

judgment of 16 September 1996, Reports of Judgments and Decisions for 1996-IV,

p. ..., para. 68).

As regards the administrative remedy referred to by the Government, i.e.

the complaint under Section 17 para. 1 of the State Administration of Courts Act

No. 80/1992, the Commission observes that the applicant pursued this remedy in

substance. The Commission is not required to determine whether the complaint is

an effective remedy, as the Government's objection is based on an incorrect

factual premise.

As regards the "podnet", the Commission observes that the applicant, in

his observations in reply, informed the Commission that in February/March 1996

he had lodged a "podnet" before the Constitutional Court and that on 16 May 1996

it was rejected as he was not represented by a lawyer.

It is true that the "podnet" can give rise to a declaration of excessive

length of proceedings and, according to the Government, to an award of damages

in respect of the length. However, where proceedings are still pending at first

instance, the Commission considers that a remedy must be capable of accelerating

the proceedings if it is to be effective. It has not been suggested that the

Constitutional Court in "podnet" proceedings, is capable of interfering with

pending proceedings in any way. The Constitutional Court had held on several

occasions that it could not interfere with the decisions of the general courts,

nor could it act as an appellate court in matters which are within the

jurisdiction of the general courts (cf. No. 26384/95, Dec. 26.6.96).

In these circumstances, the Commission finds that it has not been

established that the applicant had or has any effective remedy at his disposal

which could remedy his complaints under Article 6 para. 1 of the Convention.

Accordingly, the application cannot be declared inadmissible for non-exhaustion

of domestic remedies.

As regards the merits of the application, the Government submit that they

cannot consider the length of the proceedings as the applicant's claim for

damages is still pending. Nevertheless, they are of the opinion that in the

present case the proceedings have not been unreasonably slow.

The applicant submits that the overall length of the proceedings exceeds

any notion of reasonableness.

The Commission considers, in the light of the criteria established by the

case-law of the Convention organs on the question of "reasonable time", and

having regard to all the information in its possession, that an examination of

the merits of the complaint is required.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the

case.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

Menu

PRELOZNIK v. THE SLOVAK REPUBLIC

PRELOZNIK v. THE SLOVAK REPUBLIC

LEXI