FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 41263/98 by D.K. against Slovakia

The European Court of Human Rights (Fourth Section), sitting on 14 May 2002 as a Chamber composed of

Sir Nicolas Bratza , President , Mrs E. Palm , Mr J. Makarczyk , Mrs V. Strážnická , Mr M. Fischbach , Mr J. Casadevall , Mr R. Maruste , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 20 April 1998 and registered on 18 May 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr D.K., is a Slovakian national living in Košice. The respondent Government were represented by Mr P. Vršanský, their Agent.

A. The circumstances of the case

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

Proceedings concerning the withdrawal of the applicant’s driving licence

On 12 January 1996 the applicant had an accident while driving a car belonging to his employer. The police found alcohol on the applicant’s breath and seized his driving licence pursuant to Section 33 (2) (a) and (b) of the Police Corps Act (see “Relevant domestic law” below).

On 17 January 1996 the police department in Ko Å¡ ice decided, pursuant to Section 33 (4) of the Police Corps Act, not to restore the driving licence to the applicant pending the outcome of the investigation into the accident. The decision stated that it could reasonably be expected that the applicant would be sanctioned by a prohibition on driving motor vehicles.

On 1 February 1996 the applicant appealed. He alleged that the alcohol found on his breath had been due to a medicament which he had taken.

On 5 March 1996 the Ministry of the Interior upheld the first instance decision.

On 17 May 1996 the applicant sought a judicial review of the administrative decisions to withhold his driving licence. On 12 July 1996 he paid the court fees.

On 23 May 1997 the applicant complained to the President of the Bratislava III District Court ( Okresn ý súd ) that the case was not being proceeded with.

On 24 June 1997 the President of the Bratislava III District Court informed the applicant that the court’s decision was about to be drafted.

On 30 June 1997 the Bratislava III District Court dismissed the action. It noted that the administrative decisions in question were of a procedural nature and that under Article 248 § 2 (e) of the Code of Civil Procedure it lacked jurisdiction to review them.

On 15 October 1997 the applicant complained to the President of the Bratislava Regional Court ( Krajský súd ) that he had not been served with the judgment of the Bratislava III District Court.

The judgment was served on 29 October 1997.

On 19 December 1997 the applicant lodged a petition with the Constitutional Court ( Ústavný súd ). He alleged a violation of his constitutional right to a hearing without undue delays in the proceedings concerning the decision to withhold his driving licence. He also alleged a violation of Article 6 § 1 of the Convention in that the proceedings before the Bratislava III District Court had been unfair.

On 11 February 1998 the Constitutional Court rejected the complaint under Article 6 § 1 of the Convention as it found no reason for applying an international treaty in the applicant’s case. It declared admissible the complaint about the length of the proceedings. On 31 March 1998 the Constitutional Court found that the applicant’s constitutional right to a hearing without undue delays had been violated in the proceedings before the Bratislava III District Court.

Criminal proceedings against the applicant

On 12 April 1996 the Košice 1 District Prosecutor indicted the applicant for two offences on the ground that on 17 December 1995 and on 12 January 1996 respectively he had driven a car after having drunk alcohol and that on the latter date he had caused a road accident.

On 29 April 1996 the applicant requested the Košice 1 District Court ( Obvodný súd ) to order an expert opinion and to take further evidence.

On 30 April 1996 the Košice 1 District Court issued a penal order convicting the applicant on two counts of causing danger to other persons while being intoxicated and imposed a conditional six months’ prison sentence. The applicant was further disqualified from driving for two and a half years.

On 15 May 1996 the applicant challenged the penal order.

On 11 June 1996 the Koši ce 1 District Court heard the witnesses. Further hearings were held on 26 November 1996 and on 17 December 1996. On the latter date the Košice 1 District Court delivered a judgment the operative part of which was the same, in substantive terms, as that of the penal order. The applicant was further ordered to pay damages to his employer.

On 7 February 1997 the applicant appealed.

On 23 April 1997 the Supreme Court ( Najvyšší súd ) transferred the case from the Košice Regional Court to the the Žilina Regional Court .

On 16 July 1997 the latter quashed the first instance judgment with reference to several shortcomings in the proceedings before the trial court. The decision was to be served by the Košice 1 District Court. The latter received it on 28 July 1997.

On 25 March 1998 the applicant complained to the President of the Košice 1 District Court that he had not been notified of the appellate court’s decision.

On 16 April 1998 the President of the Košice 1 District apologised to the applicant for delays in the proceedings.

On 4 May 1998 the applicant complained to the President of the Košice Regional Court that the decision on his appeal had not been served and that the proceedings had lasted an unreasonably long time.

On 12 May 1998 the applicant complained to the Constitutional Court about delays in the proceedings.

On 17 December 1998 the Constitutional Court found that the Košice 1 District Court was responsible for delays of approximately fourteen months.

In December 1998 and on 13 January 1999 the Košice 1 District Court held hearings in the case.

On 12 January 2000 the Košice 1 District Court convicted the applicant on two counts of causing danger to other persons while being intoxicated and imposed a combined sentence: the applicant was fined 5,000 Slovakian korunas and disqualified from driving for five years with reference to, inter alia , Article 201 of the Criminal Code. The court heard the applicant, several witnesses and had also regard to an expert opinion.

On 28 February 2000 the applicant appealed. He argued that the expert opinion was not reliable and that there had been shortcomings in assessment of the damage which he had allegedly caused. The applicant further maintained that the court had decided erroneously and that both his conviction and sentence were unlawful. The applicant’s brother and son respectively also filed an appeal.

On 28 June 2000 the Žilina Regional Court dismissed the appeals. It took further evidence and held it to be established that the applicant had driven a car while being intoxicated on two occasions. It found, for reasons set out in the decision, that the conviction and sentence imposed by the first instance court were in accordance with the relevant law. Finally, the appellate court shared the District Court’s view that the third-party’s claim for damages and the applicant’s arguments in this respect exceeded the scope of the criminal proceedings and that this issue was therefore to be determined by a civil court.

On 22 August 2000 the Košice 1 District Court decided that the five years ’ prohibition to drive motor vehicles imposed in the criminal proceedings was to be counted as from 12 January 1996 when the applicant’s driving licence had been withheld by an administrative measure.

B. Relevant domestic law

Police Corps Act of 1993

Act No. 171/1993 on Police Corps ( Zákon o policajnom zbore - “the Police Corps Act”) governs the organisation and powers of the police.

Section 33, as in force until 31 March 1997, defined the rights of the police when directing and supervising road traffic.

Under Section 33 (2) (a), the police could take away the driving licence from a driver who, i nter alia , grossly infringed generally binding legal rules and caused a traffic accident. Section 33 (2) (b) provided that the police could also take away a person’s driving licence when he or she drove while being intoxicated and thus put in danger the safety of road traffic.

Section 33 (4) provided that a police department could, within fifteen days, decide to withhold such a person’s driving licence when there were justified reasons not to restore it or when it could be reasonably expected that a court or another competent authority would prohibit him or her from driving.

Pursuant to Section 33 (6), the relevant authorities had to examine, at all stages of the proceedings, whether the reasons for the withdrawal of a driving licence persisted. When such reasons fell away, the licence was to be restored without delay.

Road Traffic Act of 1996

Section 33 of the Police Corps Act was repealed by the enactment, on 1 April 1997, of Act No. 315/1996 on Road Traffic ( Zákon o premávke na pozemných komunikáciách ) Section 66 of which contains similar provisions.

Section 129 (1) of the Road Traffic Act of 1996 provides that decisions concerning driving licences delivered by the police authorities prior to the entry into force of the Act shall remain in force.

Criminal Code

Article 201 of the Criminal Code provides, inter alia , that a person who causes danger to other persons by carrying out an activity while being intoxicated is punishable with a prison sentence for a period up to one year or with disqualification from carrying out an activity or with a fine.

Code of Civil Procedure

Article 248 § 2 (e) of the Code of Civil Procedure provides that administrative decisions of, inter alia , a procedural nature cannot be reviewed by courts.

State Liability Act of 1969

Section 1 of Act No. 58/1969 on the liability of the State for damage caused by a State organ’s decision or by its erroneous official action (“the State Liability Act”) provides that the State is liable for damage caused by unlawful decisions delivered by a public authority in the context of, inter alia , administrative proceedings.

Pursuant to Section 4 (1), a claim for damages can only be lodged after the decision by which damage was caused has been quashed by the competent authority as being unlawful.

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention that his right to a fair and public hearing within a reasonable time was not respected in the proceedings concerning the decision to withhold his driving licence. He further alleges a violation of Article 13 of the Convention in that he had no remedy at his disposal in this respect.

2. Under Article 1 of Protocol No. 1 the applicant complains that he was not able to use his private car as a result of the decision to withhold his driving licence.

3. The applicant alleges a violation of Article 6 § 1 of the Convention in that the criminal proceedings against him were unfair and lasted an unreasonably long time.

THE LAW

1 . The applicant complains that his right under Article 6 § 1 of the Convention to a fair and public hearing within a reasonable time was not respected in the proceedings concerning the decision to withhold his driving licence. He also alleges a violation of Article 13 of the Convention in that he had no effective remedy at his disposal against the administrative decisions not to restore his driving licence and that he could not challenge the Bratislava III District Court’s judgment of 30 June 1996.

The Government object that the applicant failed to exhaust domestic remedies as he did not seek redress by means of an action for damages under the State Liability Act of 1969. They point out that it was also open to the applicant to use extra-ordinary remedies, such as a request for re-opening of the proceedings or a petition for a protest of a public prosecutor to be filed in his case. The Government further maintain that Article 6 § 1 of the Convention is not applicable to the proceedings in question.

The applicant contends that he could not obtain redress be means of the above remedies. In his view, the guarantees of Article 6 § 1 extend to the proceedings in question. He points out, in particular, that he was not able to drive motor vehicles for more than four years by virtue of an administrative decision which he could not have reviewed by a court.

To the extent that the Government maintain that the applicant could lodge a claim for damages under the State Liability Act, the Court notes that Section 1 read in conjunction with Section 4 (1) of that Act reserves the right to compensation only in respect of decisions which have been quashed as being unlawful. However, the administrative decision to withhold the applicant’s driving licence has not been quashed.

In accordance with the Court’s practice a request for re-opening of proceedings or an extra-ordinary remedy, the use of which depends on the discretionary powers of the public authority, are not remedies which require to be exhausted for the purposes of Article 35 § 1 of the Convention. It follows that this part of the application cannot be rejected for the applicant’s failure to exhaust domestic remedies.

The Court considers, in the light of the parties’ submissions, that this part of the application raises serious issues of fact and law under the Convention, including the question of the applicability of Article 6 § 1, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The applicant complains that he was not able to use his private car as a result of the refusal to restore his driving licence. He alleges a violation of Article 1 of Protocol No. 1.

Even assuming that the decision to withhold the licence pending the outcome of the investigation into the applicant’s accident amounts to the control of the use of property within the meaning of the second paragraph of Article 1 of Protocol No. 1, the Court finds that it was in accordance with the relevant provisions of the Police Corps Act and that it has pursued the general interest of protecting the safety of road traffic. Accordingly, there is no appearance of a violation of the applicant’s rights under Article 1 of Protocol No. 1.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

3. The applicant complains under Article 6 § 1 of the Convention that the criminal proceedings against him were unfair and lasted an unreasonably long time.

a) In so far as the applicant’s complaint may be understood to concern assessment of the evidence and the result of the proceedings before the domestic courts, the Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see the Schenk v. Switzerland judgment of 12 July 1988, Series A no. 140, p. 29, §§ 45-46, and the Garcia Ruiz v. Spain judgment of 21 January 1999, Reports of Judgments and Decisions 1999-I, § 28).

In the present case there is nothing to indicate that the national courts’ evaluation of the facts and evidence presented in the applicant’s trial was contrary to Article 6 of the Convention. The applicant was fully able to state his case and challenge the evidence; the courts’ decisions were satisfactorily reasoned and disclose no sign of arbitrariness.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

b)  The applicant further complains under Article 6 § 1 of the Convention that his right to a hearing within a reasonable time was violated in the criminal proceedings against him.

The Government object that the applicant failed to exhaust domestic remedies as he did not seek redress by means of an action for damages under the State Liability Act of 1969. As to the merits, the Government admit, with reference to the Constitutional Court’s finding of 17 December 1998, that the reasonable time requirement was not respected. They point out, in particular, that delays in the proceedings were imputable to the Ko š ice 1 District Court which failed to ensure that expert opinion be submitted in time.

The applicant contends that he could not obtain redress be means of the above remedy and that the length of the proceedings was excessive.

The Court found earlier that the remedy invoked by the Government does not offer reasonable prospects of success and that it is not capable of providing direct protection for the right to a hearing within a reasonable time guaranteed by Article 6 § 1 of the Convention as required by the relevant case-law (see J.K. v. Slovakia (dec.), no. 38794/97, 13 September 2001, unreported) and it sees no reason for reaching a different conclusion in the present case. Accordingly, this part of the application cannot be declared inadmissible for non-exhaustion of domestic remedies.

The Court considers, in the light of the criteria established by its case-law on the question of “reasonable time”, and having regard to all the material in its possession, that an examination of the merits of the complaint is required.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints under Articles 6 § 1 and 13 of the Convention about unfairness and length of the proceedings concerning the decision to withhold his driving licence, and the complaint under Article 6 § 1 of the Convention that the criminal charges against the applicant were not determined within a reasonable time;

Declares inadmissible the remainder of the application.

Michael O’Boyle Nicolas Bratza Registrar President