Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25006/94

by I.S.

against the Slovak Republic

The European Commission of Human Rights (Second Chamber) sitting

in private on 4 March 1996, 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

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

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 3 May 1994 by I.S.

against the Slovak Republic and registered on 25 August 1994 under file

No. 25006/94;

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 26

March 1996 and the observations in reply submitted by the

applicant on 16 May 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Slovak national born in 1956. He is an

electrician and resides in Zilina. Before the Commission he is

represented by Mr. F. Feník, a commercial lawyer practising in Zilina.

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

summarised as follows.

A. The particular circumstances of the case

On 19 November 1991 the applicant and four other persons lodged

a claim for restitution of land with the Zilina District Court (Okresny

súd) against two state enterprises. On 23 March 1992 the first hearing

was held. On 21 January 1993 the Court ordered an inspection of the

site for 9 February 1993. On 9 February 1993 the Court asked the

applicant to designate a new defendant. On 8 March 1993 the applicant

urged the judge to decide the case as soon as possible.

On 7 April 1993 the applicant complained of delays in the

proceedings with the President of the Zilina District Court. He

referred to Sections 5 and 6 of the Courts and Judges Act No. 335/1991

(Zákon o súdoch a sudcoch) and to Section 6 of the Code of Civil

Procedure (Obciansky súdny poriadok). He also requested the exclusion

of the judge on the ground that she was concerned by the complaint

about unnecessary delays in the proceedings.

On 31 May 1993 the Banská Bystrica Regional Court (Krajsky súd)

dismissed the request for the exclusion of the judge. On 27 August

1993 the decision was served on the applicant. On 25 November 1993 the

Supreme Court (Najvyssí súd) rejected the applicant's appeal for lack

of jurisdiction and held that the Regional Court's decision of 31 May

1993 was final. On 1 February 1994 the case file was sent to the

Zilina District Court.

As the applicant did not receive any reply as regards his

complaint about delays in the proceedings, he lodged another complaint

with the Ministry of Justice on 10 August 1993. The complaint was

transmitted to the President of the Zilina District Court.

On 29 September 1993 the President of the Zilina District Court

informed the applicant that his complaint had been considered as a

request for exclusion of the judge and that it had not been dealt with

without undue delay. He also noted that the restitution proceedings

could not be pursued as one of the co-plaintiffs had died (on 15 May

1993) and separate proceedings relating to her estate had to be

terminated first.

On 19 October 1993 the President of the Banská Bystrica Regional

Court upheld, in reply to the applicant's complaint of 10 August 1993,

the position of the Zilina District Court's President.

On 8 February 1994 the Zilina District Court again asked the

applicant to designate the new defendant which he did on 16 February

1994. On 12 August 1994 the Court informed the applicant that his

designation was not sufficient and requested him to specify it within

seven days. The applicant did this on 19 August 1994.

On 26 April, 25 and 31 May, 7 and 27 June 1995 the Zilina

District Court adjourned the trial for procedural reasons until 25 and

31 May, 7, 27 June and 15 September 1995, respectively. The applicant

and his lawyer were not present at the hearing of 7 June 1995.

On 15 September 1995 the Zilina District Court requested an

expert to establish the boundaries of the plot at issue and to draw a

plan. On 8 January 1996 the expert presented his report.

On 18 January 1996 the Zilina District Court, after hearing the

co-plaintiffs' submissions, again adjourned the trial.

On 30 January 1996 the Zilina District Court decided in favour

of the applicant.

From the applicant's most recent submissions it appears that on

11 April 1996 the co-plaintiffs appealed to the Banská Bystrica

Regional Court, which on 30 May 1996 quashed the decision of 30 January

1996 and referred the case back to the Zilina District Court. The

written decision was notified to the Zilina District Court and the

applicant on 4 October and 26 November 1996 respectively.

B. The 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, the courts

are to examine cases in cooperation with all participants so that,

inter alia, the protection of rights is expeditious and effective.

According to Section 5 para. 1 of the Courts and Judges Act No.

335/1991, as amended, judges are required to decide, inter alia,

without delay. Under Section 6 a 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,

státnej správe súdov, vybavovaní stazností a o volbách prísediacich)

No. 80/1992, any natural person or corporation can turn to State

authorities responsible for the administration of courts (the Ministry

of Justice, President and Vice-President of the Supreme Court and

Presidents and Vice-Presidents of Regional and District Courts) with

complaints only in cases of delayed proceedings or misconduct caused

by improper performance 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 a complaint is to be terminated within two months, and

an applicant is to be informed in writing about the conclusion. After

the complaint has been dealt with by the President of a District Court,

the applicant is entitled to request a review of the conclusion by the

President of an appropriate Regional Court.

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

Constitutional Court (Ústavny súd) can commence proceedings upon the

"podnet" presented by any individual or a corporation claiming that his

or its 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

damage caused by erroneous official acts committed by persons who carry

out tasks vested in State organs.

COMPLAINTS

The applicant complains that his case has been dealt with by a

judge who lacked independence and impartiality and that his claim for

restitution of real property has not been decided within a reasonable

time. He alleges a violation of Article 6 para. 1 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 3 May 1994 and registered on

25 August 1994.

On 17 January 1996 the Commission decided to communicated 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 26 March

1996. The applicant's observations in reply were submitted on 16 May

1996.THE LAW

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

the Convention, that his claim for restitution of real property has not

been decided within a reasonable time.

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 ..."

The Government first submit that the application, insofar as it

relates to events prior to 18 March 1992, the date of ratification of

the Convention by the former Czech and Slovak Federal Republic, is

outside the competence ratione temporis of the Commission.

The Government further 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 a Constitutional

Court's judgment of 25 October 1995. They add that a finding by the

Constitutional Court of a violation of a fundamental right or freedom

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

The applicant claims that the remedies referred to by the

Government have been exhausted. He submits that on 7 April 1993 he

complained of delays in the proceedings with the President of the

Zilina District Court with reference to Sections 5 and 6 of the Courts

and Judges Act No. 335/91 and to Section 6 of the Code of Civil

Procedure. At the same time, he requested the exclusion of the judge.

As regards the Government's allegation that he did not lodge his

complaint in conformity with the provisions of Section 17 of Act

No. 80/1992, the applicant replies that what is decisive is the content

of the petition and not the specific legal provision to which it

refers. He underlines that he addressed his complaint to the competent

person, i.e. the President of the Zilina District Court. Pursuant to

Section 25 of Act No. 80/1992, the statutory time limit for dealing

with a complaint is two months. As the President of the Zilina

District Court had not replied within such time limit, on 10 August

1993 the applicant sent his complaint to the Ministry of Justice which

promptly referred it to the President of the Banská Bystrica Regional

Court. The President of the Zilina District Court answered the

applicant's representative by letter of 29 September 1993 and noted

that his complaint of 7 April 1993 was qualified as a complaint against

the bias of the judge. However, the applicant emphasises that this

letter was sent in response to the complaint which had been referred

to the Ministry of Justice; it did not reply to his original complaint

of 7 April 1993.

With regard to the Government's allegation that he failed to

lodge a "podnet" with the Constitutional Court, the applicant submits

that there is no clear legal guarantee of the right for a claimant to

effectively claim the protection of his right under Article 48 para. 2

of the Constitution.

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 (Art. 6-1) of the Convention (cf. Eur. Court HR, the 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 which

was 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, the Akdivar and Others v.

Turkey judgment of 16 September 1996, para. 68, Reports 1996).

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. In fact, on 7 April

1993 he complained of delays in the proceedings with the President of

the Zilina District Court with reference to Sections 5 and 6 of Act

No. 335/1991 and to Section 6 of the Code of Civil Procedure. The fact

that in his complaint the applicant did not expressly refer to Act

No. 80/1992 cannot affect his intention to challenge a delay in the

proceedings and, accordingly, to accelerate them.

As regards the "podnet", the Commission recalls that that remedy

can give rise to a declaration of excessive length of proceedings, but

it is not capable of accelerating the proceedings which are still

pending (cf. No. 25189/94, Prelozník v. the Slovak Republic,

Dec. 15.1.97).

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 provide satisfaction in regard to his complaints

under Article 6 para. 1 (Art. 6-1) 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 contend

that the restitution claim in question involved legal issues of complex

nature. The Zilina District Court proceeded with the case without

unreasonable delay and gave its judgment within a reasonable period of

time. The first hearing was held on 23 March 1992, and on 21 January

1993 the inspection of the site was ordered. Further hearings were

held on 26 April, 25 and 31 May, 7 and 27 June 1995. On 8 January 1996

an expert, who was appointed on 15 September 1995, submitted a report,

and the judgment was given on 30 January 1996. The applicant's conduct

also contributed to the length of the proceedings. In particular, he

had presented an amended claim concerning the extension of the

restitution claim to a new defendant, requested by the judge on

9 February 1993, one year and six months later. The applicant himself

failed to cooperate with the Court by complying with its requirements.

Furthermore, he appealed against the decision of the Banská Bystrica

Regional Court, even though no appeal was admissible against this

judgment.

The applicant objects to the Government's observations. He

submits that the case is not as complex as the Government contend. He

also claims that the reason for not lodging any amended claim between

9 February and 30 June 1993 was the fact that the first defendant had

a legal status and that there was no argument to include the third

defendant in the proceedings. In his view, the five successive

hearings in 1995 at the Zilina District Court were influenced by his

complaint of the length of proceedings brought before the President of

the Zilina District Court, the President of the Banská Bystrica

Regional Court and the Ministry of Justice, and by his application

lodged with the European Commission of Human Rights.

The Commission notes that the relevant period did not begin as

from the institution of the restitution proceedings in November 1991,

but only as from 18 March 1992 when the former Czech and Slovak Federal

Republic ratified the Convention and recognised the right of individual

application. However, in assessing the reasonableness of the time that

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

proceedings at that time (cf. Eur. Court HR, the Baggetta v. Italy

judgment of 25 June 1978, Series A no. 119, p. 32, para. 20). The

proceedings are still pending before the Zilina District Court. The

period to be considered thus amounts to four years and eleven months.

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.

2. The applicant also complains, under Article 6 para. 1

(Art. 6-1) of the Convention, that his case has been dealt with by a

judge who lacked independence and impartiality.

The Commission observes that the restitution proceedings are

still pending before the Zilina District Court. Thus, the applicant's

claim is premature.

It follows that this part of the application must be rejected in

accordance with Article 27 (Art. 27) of the Convention.

For these reasons, the Commission, by a majority,

DECLARES ADMISSIBLE, without prejudging the merits of the case,

the applicant's complaint concerning the length of the civil

proceedings;

DECLARES INADMISSIBLE the remainder of the application.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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