AS TO THE ADMISSIBILITY OF

                      Application No. 29031/95

                      by M.S.

                      against the Slovak Republic

     The European Commission of Human Rights (Second Chamber) sitting

in private on 22 October 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. 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 28 March and

8 August 1995 by M.S. against the Slovak Republic and registered on

31 October 1995 under file No. 29031/95;

     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

     4 October 1996 and the observations in reply submitted by the

     applicant on 22 December 1996;

     Having deliberated;

     Decides as follows:

     THE FACTS

     The applicant is a Slovak citizen born in 1945.  He is a doctor

and resides in Cífer.  The facts of the case, as submitted by the

applicant, may be summarised as follows.

A.   Particular circumstances of the case

1.   Proceedings concerning the dismissal from the hospital in Modra

     On 4 November 1991 the applicant started attending a practical

course in endocrinology notwithstanding that he had not obtained his

employer's permission.  On 25 November 1991, after he had been twice

requested to resume his work, the applicant was dismissed from the

hospital in Modra.

     On 21 April 1992 the Bratislava - vidiek District Court (Okresny

súd) refused to quash the decision to dismiss the applicant as the

latter had acted negligently in that he had stopped working in order

to attend the practical course.  On 22 July 1992 the Bratislava

Regional Court (Krajsky súd) dismissed the applicant's appeal.  It held

that the first instance court should have rejected the claim because

it had been lodged out of time.

     On 26 February 1993 the Supreme Court (Najvyssí súd) rejected the

applicant's appeal on points of law as this remedy was not available

in the applicant's case.  The applicant then sought redress with the

Constitutional Court (Ústavny súd).  He alleged a violation of his

right to education.

     On 4 October 1994 the Constitutional Court rejected the petition

for lack of jurisdiction.  It recalled that it could only examine

alleged violations of fundamental rights and freedoms which occurred

after 15 February 1993, whereas the final decision in the applicant's

case had been taken by the Bratislava Regional Court on 22 July 1992.

The Constitutional Court further noted that the applicant could have

sought redress with the Constitutional Court of the former Czech and

Slovak Federal Republic but had failed to do so.

2.   Proceedings concerning the dismissal from the Railways Hospital

     On 12 May 1993 the applicant was dismissed from the Railways

Hospital in Bratislava.  On 8 October 1993 he challenged the lawfulness

of the dismissal before the Bratislava 3 District Court.  On 24 June

1994 the action was dismissed as it had been lodged after the expiry

of the two months' time-limit prescribed by law.

     The applicant appealed to the Bratislava City Court (Mestsky súd)

and claimed that the first instance court had misinterpreted his

action.  On 29 November 1994 he requested the City Court to consider

his action as a claim for protection of his honour and reputation.  The

appeal was dismissed on 30 November 1994.

     The City Court found it evident from the applicant's submissions

that he had challenged the lawfulness of his dismissal.  In the court's

view, the action could not be transformed into an action for protection

of honour and reputation as requested by the applicant.  The court

noted that the applicant was free to lodge a separate action if he

considered that his right to honour and reputation had been violated.

     The applicant lodged a petition (podnet) with the Constitutional

Court.  He complained, inter alia, that he had been dismissed

unlawfully and that the general courts had misinterpreted his action

and refused to examine it as an action for protection of his honour and

reputation.

     The petition was dismissed on 14 June 1995.  The Constitutional

Court held that it lacked jurisdiction to examine labour disputes.  It

further found that the mere fact that the applicant had been

unsuccessful in his claim could not be considered as a violation of his

fundamental rights.

3.   Proceedings concerning the sickness benefits

     The applicant concluded, as from 1 January 1989, a contract of

employment with the Institute for Tuberculosis and Respiratory Diseases

("the Institute").  The Institute has its main seat in Nitra and the

applicant worked in the Institute's tuberculosis sanatorium located in

Horné Lefantovce ("the sanatorium").  On 17 January 1989 he was

granted, at his own request, unpaid leave until 31 January 1989.  At

the latter date the applicant's contract of employment was terminated.

     The applicant contracted an infectious inflammation of an eye and

was unable to work from 20 January to 19 February 1989.  On 1 March

1989 he claimed sickness benefits from the Institute and submitted

medical certificates delivered by the doctors who had treated him.

     Part II of certificate No. H 934140 was entitled "Notification

of termination of incapacity to work" and stated that it served as the

last certificate for payment of sickness benefits.  The reverse side

of the certificate comprised a chart reserved for both the health

insurance commission (i.e. the trade-union organ competent to decide

on claims for sickness benefits) and the employer of the claimant.  The

former had to confirm in the chart that it agreed with the payment of

the benefits and the latter had to certify that the formal requirements

for payment of the sum due were met.  The aforesaid chart was stamped

by the sanatorium's insurance commission and signed by its

representative on 5 March 1989.

     The diagnosis set out in the medical certificates submitted by

the applicant implied that the applicant had suffered an injury.  On

7 April 1989 an accountant of the Institute's department of personnel

and salaries in Nitra therefore requested the applicant to specify, by

completing a form, how he had suffered the injury.  The letter stated

that the requested information was necessary in order to determine

whether or not sickness benefits could be paid to the applicant.

     On 27 May 1989 the applicant returned the form to the Institute.

In the form the applicant pointed out that he had suffered no injury

and in the accompanying letter he explained that the diagnosis set out

in the medical certificates was incorrect.

     On 31 May 1989 the director of the Institute informed the

applicant that he had requested the Institute's doctor and the

department of personnel and salaries to examine the applicant's case

because the medical certificates implied that the applicant had

suffered an injury.  The letter further stated that the applicant would

be notified of any further information thus obtained.

     As he had received no further information from the Institute and

the benefits had not been paid to him, the applicant lodged his claim,

on 11 February 1992, with the Nitra District Court.  An accountant of

the Institute stated before the court that the benefits had not been

paid as the applicant had failed to duly complete the form which had

been sent to him on 7 April 1989.  The accountant further stated that

the medical certificates concerning the applicant's disease implied

that the applicant had suffered an injury, and that in such cases the

supervisory authorities required that such a form be completed.

      On 17 December 1993 the District Court dismissed the applicant's

action, mainly on the ground that during his illness the applicant had

not been examined by his employer's doctor as required by the

regulations.

     The applicant appealed to the Bratislava Regional Court.  The

latter established that the applicant claimed, inter alia, sickness

benefits for the period of his illness and compensation for lost

earnings and personal suffering.

     On 27 April 1994 the Regional Court quashed the first instance

decision and discontinued the proceedings as regards the claim for

sickness benefits.  It held that the general courts lacked jurisdiction

to decide on such claims.  The Regional Court upheld the first instance

decision to dismiss the claim for compensation for lost earnings as it

had been lodged out of time.

     On 31 May 1995 the applicant lodged a petition with the

Constitutional Court.  He complained, inter alia, that the way in which

the general courts had dealt with his case was unlawful and violated

his fundamental rights.

     On 14 June 1995 the Constitutional Court rejected the petition

for lack of jurisdiction.  In the reasons for its decision the

Constitutional Court pointed out that the applicant's right to have his

claim examined by an independent and impartial tribunal in procedures

established by law as guaranteed by Article 46 para. 1 of the

Constitution was respected in the proceedings before the general

courts.

     The Constitutional Court further held:

[Original]

     "Ústavny súd nemá právomoc preskúmavat zákonnost rozhodnutí

     vseobecnych súdov, a preto ani v prípadnom zistení nezákonnosti

     nemôze tieto zrusit alebo napravit."

[Translation]

     "The Constitutional Court lacks jurisdiction to examine whether

     decisions of general courts are lawful and, therefore, even if

     unlawfulness of such decisions is established, they cannot be

     quashed or modified by the Constitutional Court."

B.   Relevant domestic law and practice

1.   Article 46 para. 1 of the Constitution provides as follows:

[Translation]

     "Any person is entitled to claim his or her rights by procedures

     established by law before an independent and impartial court of

     law or other public authority ... in cases specified by law."

2.   Legislation concerning health insurance

a)   Health Insurance Act

     Until 30 June 1990 the health insurance was administered,

pursuant to Section 54 of Act No. 54/1956 of 30 November 1956 on Health

Insurance of Employees (the Health Insurance Act), by the Central

Trade-Union Council.

     Pursuant to Section 44 para. 4 of the aforesaid Act, a right to

sickness benefits became statute-barred a year after the claim for such

benefits had been granted.

     Section 58 of the Health Insurance Act provided that decisions

delivered by the competent trade-union organs on issues relating to

sickness benefits were enforceable if no remedy against them was

available.

     The Health Insurance Act was amended, as from 1 July 1990, by Act

No. 180/1990 in that, inter alia, the administration of health

insurance was transferred to organs subordinated to the Ministry of

Labour and Social Affairs, and the limitation period for claims

concerning sickness benefits was extended to three years.  However,

pursuant to Section IX para. 2 of Act No. 180/1990, the running of

periods which had not expired by 1 July 1990 remained unchanged.

b)   Regulation No. 91/1958

     During the relevant period, the organisation and implementation

of the health insurance scheme was governed by a document elaborated

by the Central Trade-Union Council and published as the Prime

Minister's Regulation No. 91 of 22 December 1958.  The below mentioned

provisions of this Regulation are relevant in the present case.

     Section 7 vested the powers relating to the implementation of the

health insurance scheme at the level of individual enterprises and

institutions in trade-union councils existing within them.  In order

to carry out this function, the trade-union councils established their

insurance commissions.

     Pursuant to Section 12, the heads of enterprises or institutions

were personally responsible for the exercise of administrative

functions relating to the implementation of the health insurance scheme

including payments of sickness benefits.

     Para. 1 of Section 16  provided for due and timely payment, by

the administration of enterprises and institutions, of benefits granted

by the trade-union organs.

     Pursuant to para. 2 of Section 16, the head of the enterprise or

institution was entitled to suspend the payment of a benefit if it had

been granted in violation of the law or if the amount granted was

incorrect.  In such cases, the head of the enterprise or institution

was under the obligation to submit the case for decision to the trade-

union council.  If the trade-union council refused to accept the

opinion of the head of the enterprise or institution, the latter was

to submit the case to the District Trade-Union Council.  Its decision

was binding.

     In accordance with Sections 36 and 37, a claim for sickness

benefits was to be submitted to the officer appointed by the employer,

usually the accountant.  The claims for sickness benefits were to be

decided upon by the trade-union organ established within the

organisation in which the claimant was employed.

     Pursuant to Section 38 para. 1, if the trade-union organ granted

the benefit, it was payable and no decision was communicated to the

claimant.  No appeal was available in such a case.

     Para. 2 of Section 38 provided that if the claim was refused, the

claimant was to be informed accordingly by a member of the trade-union

organ which had decided upon it.  Such a decision could be appealed

against before the competent trade-union organs.

     Section 38 para. 5 entitled the District Health Insurance

Administration to decide in lieu of the competent trade-union organ in

an enterprise or institution if such an organ refused to start the

proceedings or failed to decide on a claim for sickness benefits within

the time-limit set by the District Health Insurance Administration.

     Section 46 provided that decisions of the trade-union organs in

matters relating to health insurance became final if no remedy was

available against them.  Decisions by which a claim for sickness

benefits was granted were enforceable as soon as they became final.

3.   Code of Civil Procedure

     Act No. 519/1991 amended the Code of Civil Procedure in that,

inter alia, the decisions of administrative organs became reviewable

by courts unless the law provided otherwise.  It entered into force as

from 1 January 1992.  Pursuant to Section III para. 4 (a) of the

aforesaid Act, actions against decisions of administrative authorities

could be examined by courts only in cases when the available remedies

had been exhausted and the decisions complained of became final after

the entry into force of Act No. 519/1991, i.e. not prior to 1 January

1992.     Appendix A to the Code of Civil Procedure provides, in accordance

with Section 248 para. 3 of the Code, for cases in which judicial

review of administrative organs' decisions is excluded.  Until

1 December 1995 the aforesaid Appendix comprised also decisions

concerning claims for sickness benefits.

COMPLAINTS

       The applicant complains that in the proceedings which concerned

his dismissal from the hospital in Modra the courts refused to examine

his claims and decided arbitrarily.  He alleges a violation of

Article 6 of the Convention and of Article 2 of Protocol No. 1.

     The applicant further alleges a violation of Article 6 of the

Convention in that he had been arbitrarily dismissed from the Railways

Hospital, and that the courts had misinterpreted his action and refused

to examine it as an action for protection of his honour and reputation.

     Finally, the applicant complains under Article 6 of the

Convention that his fundamental rights were violated in that the

Bratislava Regional Court discontinued the proceedings concerning his

claim for sickness benefits and that he could not obtain redress before

the Constitutional Court.

PROCEEDINGS BEFORE THE COMMISSION

     The part of the application which concerns the applicant's

dismissal from the hospital in Modra was introduced on 28 March 1995.

The remainder of the application was introduced on 8 August 1995.  The

application was registered on 31 October 1995.

     On 26 June 1996 the Commission decided to communicate the

application to the respondent Government.

     The Government's written observations were submitted on

4 October 1996.  The applicant replied on 22 December 1996.

THE LAW

1.   a) The applicant alleges a violation of his rights under

Article 6 (Art. 6) of the Convention and under Article 2 of Protocol

No. 1 (P1-2) in the proceedings concerning his dismissal from the

hospital in Modra.

     The Commission notes that the final relevant decision in the

applicant's case was taken by the Bratislava Regional Court on

22 July 1992.  Since this part of the application was introduced before

the Commission on 28 March 1995, the applicant has failed to respect

the six months' time-limit laid down in Article 26 (Art. 26) of the

Convention.

     It is true that the applicant sought redress also before the

Supreme Court and the Constitutional Court.  However, those remedies

were incapable of remedying the situation complained of as the courts

concerned lacked jurisdiction to deal with the applicant's claims.  For

this reason, these remedies cannot be regarded as effective and the

decisions of the aforesaid courts cannot be regarded as final within

the meaning of Article 26 (Art. 26) of the Convention (see, mutatis

mutandis, No. 9863/82 and No. 10924/84, Dec. 6.12.84, D.R. 39, pp. 93,

116).

b)   The applicant alleges a violation of his rights under Article 6

(Art. 6) of the Convention in that the courts misinterpreted his action

relating to his dismissal from the Railways Hospital in Bratislava.

     The Commission recalls that this part of the application was

introduced on 8 August 1995 whereas the final decision on this claim

was taken by the Bratislava City Court on 30 November 1994.  The

applicant has, therefore, failed to respect the six months' time-limit

laid down in Article 26 (Art. 26) of the Convention.

     The Commission notes that the Constitutional Court lacked

jurisdiction to deal with the applicant's petition.  For this reason,

its decision of 14 June 1995 cannot be considered as final within the

meaning of Article 26 (Art. 26) of the Convention.

c)   The applicant further alleges a violation of Article 6 (Art. 6)

of the Convention in that the courts refused to quash the decision

concerning his dismissal from the Railways Hospital in Bratislava.

     The Commission recalls that the courts could not examine the

lawfulness of the dismissal because of the applicant's procedural

mistake, namely the failure to lodge his action within the time-limit

laid down in Slovak law.  The applicant has not, therefore, complied

with the requirement as to the exhaustion of domestic remedies laid

down in Article 26 (Art. 26) of the Convention (see No. 10107/82, Dec.

12.7.84, D.R. 38, p. 90).

     It follows that this part of the application has to be rejected

pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.

2.   Finally, the applicant alleges a violation of Article 6 (Art. 6)

of the Convention in the proceedings concerning his claim for health

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

insofar as relevant, provides as follows:

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

     everyone is entitled to a fair and public hearing ... by an

     independent and impartial tribunal established by law..."

     The Commission notes that in its decision of 14 June 1995 the

Constitutional Court, despite its conclusion that it lacks jurisdiction

to deal with the applicant's case, made a finding on the merits of the

applicant's complaint.  The Commission does not consider it necessary

to determine whether in these circumstances the Constitutional Court's

decision of 14 June 1995 can be regarded as final within the meaning

of Article 26 (Art. 26) of the Convention as, in any event, this part

of the application is inadmissible for the reasons set out below.

     The Government submit that the record from the meeting of the

sanatorium's insurance commission at which the applicant's claim had

been examined  was eliminated after the expiry of the time-limit set

for its keeping in the archives.

     They contend that the medical certificates concerning the

applicant's incapacity to work were stamped by the sanatorium's

insurance commission and signed by its representative on 5 March 1989,

and that the applicant has never been informed that the insurance

commission or any other body competent to decide on his claim rejected

it.  The Government conclude, with reference to Section 38 para. 1 of

Regulation No. 91/1958, that the insurance commission granted the

applicant's claim on the aforesaid date.

      The Government further contend that, during the one year

limitation period set out in Section 44 para. 4 of the Health Insurance

Act, the applicant neither lodged a request for judicial enforcement

of the insurance commission's decision, nor did he request, after the

employer had not paid the benefits to him, that the competent trade-

union organs decide on his claim anew.  The Government therefore

consider that the applicant's right to the benefits became statute-

barred on 5 March 1990.

     The applicant agrees with the Government that his claim for

sickness benefits was granted by the insurance commission.  He

considers, however, that the insurance commission decided on his claim

only after he had explained, by his letter addressed to the director

of the Institute on 27 May 1989, that he had suffered no injury.

     The applicant further submits that contrary to the promise

contained in the letter of 31 May 1989, the director of the Institute

did not inform him about any further developments in his case.  The

applicant points out that it is not possible to identify the date when

the insurance commission decided on his claim.  He therefore considers

irrelevant the Government's objection according to which his right to

the benefits lapsed on 5 March 1990.

     The Commission recalls that Article 6 para. 1 (Art. 6-1) of the

Convention applies only to disputes ("contestations") over a "right"

which can be said, at least on arguable grounds, to be recognised under

domestic law (see Eur. Court HR, Skärby v. Sweden judgment of 28 June

1990, Series A no. 180-B, p. 36, para. 27).

     It is not contested between the parties that the sanatorium's

insurance commission granted the applicant's claim and the Commission

has before it no information that would contradict this fact.  What is

disputed, however, is the date on which the relevant decision was

taken.

     The Commission notes that the applicant has never been officially

notified of the insurance commission's decision granting his claim.

In fact, Section 38 para. 1 of Regulation No. 91/1958 provided that

such decisions were not to be communicated to the claimants.

     The Commission further notes that the only available document

that indicates the date when the insurance commission examined the

applicant's claim is the medical certificate No. H 934140.  Part II of

this document stated that it served as the last certificate for payment

of sickness benefits.

     The reverse side of the aforesaid document was reserved for

remarks by both the insurance commission (i.e. the body entitled to

decide on such claims) and the administration of the enterprise or

institution employing the claimant (which was, pursuant to Section 12

of Regulation No. 91/1958, responsible for the exercise of the

administrative functions relating to the implementation of the health

insurance scheme including payments of sickness benefits).  The former

was to confirm that it agreed with the payment of the benefits and the

latter had to certify that the formal requirements for payment of the

sum due were met.  This document was stamped by the sanatorium's

insurance commission in Horné Lefantovce and signed by its

representative on 5 March 1989.

     The Commission has noted that after this date the applicant was

contacted by the accountant of the Institute's headquarters in Nitra.

Since the certificates submitted by the applicant implied that the

applicant had suffered an injury, the accountant requested the

applicant to specify, by completing a form, how he had suffered the

injury.  The letter stated that the requested information was necessary

in order to decide whether or not sickness benefits could be paid to

the applicant.

     On 27 May 1989 the applicant informed the administration of the

Institute that he had suffered no injury.  On 31 May 1989 the director

of the Institute informed the applicant that he had requested the

Institute's doctor and the department of personnel and salaries to

examine the applicant's case.  Subsequently, the applicant received no

further information concerning his claim.

     At the hearing before the Nitra District Court which was held on

17 December 1993 the accountant of the Institute stated that the

benefits had not been paid as the applicant had failed to duly complete

the form which had been sent to him on 7 April 1989 and that completing

of the form was a prerequisite condition for payment of the benefits.

     In the Commission's view, the above facts indicate, as it is

suggested by the Government, that after 5 March 1989 the

representatives of the Institute contacted the applicant in the

exercise of the administrative functions relating to the payment of

sickness benefits which were incumbent upon the director of the

Institute by virtue of Sections 12 and 16 of Regulation No. 91/1958.

     The Commission has before it no information that would indicate

that after 5 March 1989 the applicant's claim was examined again by the

sanatorium's insurance commission or any other organ competent to

decide on it.  In these circumstances, the Commission finds no reason

for disagreeing with the respondent Government's affirmation that the

sanatorium's insurance commission granted the applicant's claim on

5 March 1989 and that the extinctive one year time-limit set out in

Section 44 para. 4 of the Health Insurance Act started to run as from

this date.

     The Commission has also considered the applicant's objection that

he had no knowledge of the date on which the insurance commission had

decided on his claim and, accordingly, when the aforesaid limitation

period started to run.

     In this respect, the Commission notes that under Section 38

para. 1 of Regulation No. 91/1958 decisions by which the insurance

commission granted a claim for sickness benefits were not notified to

the claimants.  However, the Commission sees no reason why the

applicant could not ask the director of the Institute for an

explanation after he had returned the form and the benefits were still

not paid to him.  The applicant was also free to ask the insurance

commission to inform him whether and when a decision on his claim had

been taken.  On the basis of the information thus obtained the

applicant could have requested, before his right to benefits lapsed,

an enforcement of the insurance commission's decision.

     Even assuming that the Director of the Institute suspended the

payment of the benefits in accordance with Section 16 para. 2 of

Regulation No. 91/1958 and that the trade-union council failed to

decide on his claim as required by the aforesaid Section, the applicant

could have sought redress with the District Health Insurance

Administration.  The latter  was entitled, pursuant to Section 38

para. 5 of Regulation No. 91/1958, to decide in lieu of the competent

trade-union organ in an enterprise or institution if it refused to

start the proceedings or failed to decide on a claim for sickness

benefits within the time-limit set by the District Health Insurance

Administration.

     The Commission further notes that between 31 May 1989 and

11 February 1992 the applicant, who is a doctor and can therefore

legitimately be expected to have appropriate knowledge of the

legislation relating to the health insurance, apparently undertook no

action with a view to having the benefits paid.

     In these circumstances, the Commission considers it irrelevant

that the decision of the sanatorium's insurance commission was not

notified to the applicant.  The Commission therefore accepts the

Government's objection that the right claimed by the applicant lapsed

on 5 March 1990 pursuant to Section 44 para. 4 of the Health Insurance

Act.

     Accordingly, the right which the applicant claimed before the

courts on 11 February 1992 was no longer recognised under Slovak law.

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

not, therefore, extend to the proceedings complained of.

     It follows that this part of the application is incompatible

ratione materiae with the Convention within the meaning of Article 27

para. 2 (Art. 27-2).

     For these reasons, the Commission, unanimously,

     DECLARES THE APPLICATION INADMISSIBLE.

   M.-T. SCHOEPFER                              G.H. THUNE

      Secretary                                  President

to the Second Chamber                      of the Second Chamber