Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 29024/95

by P. S.

against the Slovak Republic

The European Commission of Human Rights (Second Chamber) sitting

in private on 16 April 1998, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms 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 25 April 1995 by

P. S. against the Slovak Republic and registered on 31 October 1995

under file No. 29024/95;

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

25 July 1997 and the observations in reply submitted by the

applicant on 9 September 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Slovak citizen born in 1950. He is an artist

and resides in Bratislava.

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

summarised as follows.

a) A former partner of the applicant did not pay the applicant for

publication of drawings in which the latter has copyright.

On 20 December 1990 the applicant lodged a civil action against

the partner with the Bratislava 1 District Court (Obvodny súd).

On 24 January 1991 and 16 May 1991 the applicant requested

provisional measures against which the defendant appealed. The first

hearing in the case was to take place on 24 September 1991 but was

adjourned to 15 October 1991 due to the defendant's illness. From

15 October 1991 to 17 March 1992 five hearings were held (of which one

was adjourned due to the absence of witnesses) during which certain

witnesses and the parties were heard.

Hearings were held on 24 April, 11 August and 16 October 1992,

of which one was adjourned due to new judges being assigned. From

16 October 1992 to 12 October 1993 no hearings were held, during which

time the applicant extended his claim but refused to pay the additional

filing fee. On 30 December 1992 the Bratislava City Court (Mestsky súd)

confirmed, on appeal, the applicant`s obligation to pay a filing fee.

From 12 October 1993 to 22 September 1994 six hearings were

scheduled and adjourned due to failure to attend by a witness, the

defendant or both parties or in order to obtain further documents.

The applicant considered that the proceedings were lasting

unreasonably long and repeatedly complained, inter alia, to the

President of the court concerned, to the President of the Bratislava

City Court and to the Ministry of Justice.

On 7 February and 30 May 1994 the President of the Bratislava 1

District Court admitted that there had been delays in the proceedings

and apologised to the applicant.

The Bratislava 1 District Court dismissed the action on

27 September 1994.

The applicant appealed on 21 November 1994. On 2 February 1995

the President of the Bratislava 1 District Court informed the applicant

that his appeal had been sent to the defendant on 10 January 1995 and

that the first instance court was overburdened with cases.

On 28 April 1995 the Bratislava City Court quashed the judgment

of 27 September 1994 and sent the case back to the Bratislava 1

District Court.

On 10 April 1995 the applicant complained of delays in the

proceedings to the Constitutional Court (Ústavny súd) by way of a

complaint ("podnet") under Article 130 para. 3 of the Constitution.

The Constitutional Court declared the applicant's petition admissible

on 17 August 1995. The applicant was requested to appoint a lawyer as

required by Section 22 of the Constitutional Court Act. On 28 August

and 11 September 1995 the applicant requested that, for financial

reasons, the hearing in his case should be held in Bratislava and not

at the seat of the Constitutional Court in Kosice.

On 25 October 1995 the Constitutional Court discontinued the

proceedings as the applicant had failed to appoint a lawyer within the

extended time limit. The Constitutional Court further pointed out that

under Slovak law the applicant was not entitled to request that the

hearing should be held in Bratislava. The file was returned to the

Bratislava 1 District Court on 2 October 1995.

On 24 November and 11 December 1995 the applicant complained of

further delays in the proceedings to the Vice-President and President

of the Bratislava 1 District Court respectively.

Between 15 February 1996 and 21 January 1997 eleven hearings were

held and adjourned for various reasons, three times because of the

absence of the judge and only once for reasons on the part of the

applicant. On 27 June 1996 the judge imposed a fine of SK 3,000.00 to

the defendant and her lawyer.

On 3 March 1997 the applicant received the Bratislava 1 District

Court's (Okresny súd) judgment of 21 January 1997, by which the court

ordered the defendant to pay 193,400.00 SK and rejected the remainder

of the action. On 11 March and 26 March 1997 the applicant appealed

against the judgment. On 12 March 1997 the defendant also appealed

against the judgment.

On 23 January 1998 the Bratislava Regional Court (Krajsky súd)

quashed the judgment of 21 January 1997 and sent the case back to the

Bratislava 1 District Court.

b) On 27 May 1993 the applicant lodged a separate civil action (for

the compensation for the damage caused) with the Bratislava 1 District

Court. He sued two banks which had allowed his former partner to use

money which also belonged to the applicant. On 10 May 1994 the action

was transmitted to the Bratislava City Court as the Bratislava 1

District Court on 25 March 1994 ruled that it had no jurisdiction

(following a new Commercial Code in force as of 1 January 1992) and

that the matter was to be considered a commercial dispute.

On 21 June 1994 the applicant filed a petition to be exempted

from payment of the filing fee which was refused on 12 September 1994.

The applicant appealed and the Supreme Court (Najvyssí súd) granted

exemption in full to the applicant on 15 December 1994.

On 27 November 1995 a judge of the Bratislava City Court informed

the applicant that at that moment the court was examining cases which

had been introduced in 1992.

The applicant`s claim was heard (on 13 December 1996 and

29 January 1997) and refused by the Bratislava City Court on 30 January

1997. On 17 February 1997 the applicant appealed and the case was

referred to the Supreme Court to decide on the appeal on 29 May 1997.

COMPLAINTS

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

that his cases were not examined within a reasonable time.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 25 April 1995 and registered

on 31 October 1995.

On 21 May 1997 the Commission decided to communicate the

applicant's complaint concerning the length of both sets of civil

proceedings to the respondent Government and to declare the remainder

of the application inadmissible.

The Government's written observations were submitted on

25 July 1997. The applicant replied on 9 September 1997.

THE LAW

The applicant complains, under Article 6 para. 1 (Art. 6-1) of

the Convention, about the length of the two sets of civil proceedings.

Article 6 para. 1 (Art. 6-1) 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 ..."

a) The Government submit that the proceedings against the

applicant`s former partner were affected by various circumstances. The

applicant had, after filing his claims, amended and modified it on

several occasions, sought to be exempted from payment of court fees

several times, and appealed against refusals of his requests so that

the matter of court fees finally had to be submitted to the appeal

court. The Government claim that the matter was further complicated by

the absence of a written agreement between the applicant and his former

partner defining the applicant`s rights properly.

The applicant replies that the need to amend his original claim

was caused by actions taken by the other party impairing his position

before the court, by frequent legislative changes in the Slovak

Republic and by changes in the exchange rate of the crown (SK). The

applicant also argues that the Government "fabricated" a long list of

procedural acts, so that the proceedings would appear to be continuous.

He submits that the seven year length of proceedings cannot be

justified by the increase of caseload of the courts.

The Commission first notes that the relevant period did not begin

with the institution of the proceedings in December 1990, but only as

from 18 March 1992, when the former Czech and Slovak Federal Republic

ratified the Convention and recognised the right of individual

petition. However, in assessing the reasonableness of time that elapsed

after 18 March 1992, account must be taken of the then state of the

proceedings (Eur. Court HR, Baggetta v. Italy judgment of 25 June 1978,

Series A, no. 119, p. 32, para. 20).

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.

b) The Government submit that in the applicant`s proceedings against

the banks the appropriate court of jurisdiction first had to be

established and the case had to be referred to the Bratislava City

Court. The Government claim that delay occurred partly also due to the

applicant`s attempts to be exempted from payment of the court fees and

due to the enormous load of commercial matters to be dealt with by the

Slovak courts since the entry into force of the new Commercial Code in

1992. The applicant states that the Government`s observations do not

always give an accurate account of the real situation and stresses in

particular that during two long periods no action at all was taken in

this case by the courts.

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, in

this case too, required.

For these reasons, the Commission, unanimously,

DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE, without

prejudging the merits of the case.

M.-T. SCHOEPFER J.-C. GEUS

Secretary President

to the Second Chamber of the Second Chamber

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P.S. v. THE SLOVAK REPUBLIC

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