FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36090/03 by Josef ÄŒTVRTEÄŒKA against the Czech Republic

The European Court of Human Rights (Fifth Section), sitting on 1 April 2008 as a Chamber composed of:

Peer Lorenzen , President, Snejana Botoucharova , Karel Jungwiert , Volodymyr Butkevych , Rait Maruste , Mark Villiger , Mirjana Lazarova Trajkovska , judges,

and Claudia Westerdiek , Section Registrar ,

Having regard to the above application lodged on 5 November 2003,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together ,

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 Josef Čtvrtečka , is a Czech national who was born in 1949 and lives in Dobruš ka . He was repres ented before the Court by Mr F. Kollman , a lawyer practising in N á chod . The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm , from the Ministry of Justice .

A. The circumstances of the case

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

In 1967 the applicant entered the regular forces of the Czechoslovak Army. On 1 July 1990 he was released from military service following his refusal to take the military oath. He contacted the financial and human resources divisions of the former Federal Ministry of Defence and applied for military retirement benefit ( výsluhový příspěvek ). He was informed that he did not qualify for the benefit, since he had been released from the army for not having taken the oath.

1. First set of administrative proceedings

On 8 October 1992 the applicant brought proceedings against the Ministry of Defence with the Prague 6 District Court ( obvodní soud ), seeking the grant of military retirement benefit. On 20 October 1992 the court discontinued the proceedings for lack of competence.

On 29 January 1993 the Prague Municipal Court ( městský soud ), upon the applicant ’ s appeal of 8 December 1992, quashed this decision and remitted the case to the District Court which, in a judgment of 20 February 1995, held against the applicant, finding that, pursuant to section 33 (1) of the Military Act then in force, military retirement benefit could be awarded to soldiers who had been released pursuant to sections 26 (2) of 26 (3). This, however, was not the case of the applicant who had been released after having refused to sign the document containing the military oath.

On 10 April 1996 the Municipal Court modified the District Court ’ s judgment and granted the applicant ’ s claim.

On 12 October 1999 the Supreme Court ( Nejvyšší soud ), on the defendant ’ s appeal on points of law, quashed the two judgments and discontinued the proceedings, stating that the Military Social Security Office ( vojenský úř ad sociálního zabezpečení ) at the Ministry of Defence was competent to deal with the applicant ’ s claims. It held, inter alia , that military retirement benefit was aimed at compensating soldiers for their work performed in difficult conditions, and for the private life limitations connected with the character of service in the regular forces.

On 6 February 2001 the Military Social Security Office dismissed the applicant ’ s request for military retirement benefit. On 20 March 2001 the Ministry of Defence dismissed the applicant ’ s appeal against this decision.

On 20 April 2001 the applicant challenged the decision of the Ministry of Defence before the Prague High Court ( V rchní soud ).

On 17 June 2003 the defendant informed the Supreme Administrative Court ( Nejvyšší správní soud ), to which the case had been transferred for reasons of competence, that the Minister of Defence had agreed on 1 June 2003 to grant military retirement benefit to the applicant in order to allay the harshness of the legislation ( odstranění tvrdosti zákona ).

On 19 November 2003 the applicant informed the Supreme Administrative Court that he was unhappy with this decision.

In a judgment of 31 March 2004, the Supreme Administrative Court dismissed the applicant ’ s claim against the Ministry of Defence. The judgment became final on 4 May 2004.

On 15 September 2006 the applicant applied for compensation pursuant to Act no. 82/1998 as amended. He claimed CZK 318,000 (EUR 12,261 [1] ) in respect of pecuniary damage, CZK 1,000,000 (EUR 38,557) in respect of non-pecuniary damage and CZK 75,448.60 (EUR 2,905) in respect of fees and expenses.

In a letter of 22 May 2007 the Ministry of Justice informed the applicant that his application had been accepted, that it had been found that his right to a determination of his civil claim within a reasonable time had been violated in the first set of administrative proceedings and that he had been awarded CZK 95,000 (EUR 3,658) in respect of non-pecuniary damage he might have sustained. The Ministry refused, however, the applicant ’ s claim regarding compensation for pecuniary damage.

On 13 July 2007 the applicant informed the Registry that he did not intend to turn to a court under section 15(2) of Act no. 82/1998, as amended.

2. Second set of administrative proceedings

In a decision of 4 November 2003 the Military Social Security Office granted the applicant ’ s request to attenuate the harshness of the legislation ( žádost o odstranění tvrdosti zákona ) and allowed him retirement benefit with retroactive effect from 1 June 2003.

On 4 March 2004 the Ministry of Defence, upon the applicant ’ s appeal of 8 December 2003, upheld the administrative decision of 4 November 2003.

On 7 May 2004 the applicant appealed against the decision of the Ministry of Defence of 4 March 2004 to the Municipal Court.

It appears that the proceedings are still pending.

B. Releva nt domestic law and practice

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court ’ s decision in the case of Vokurka v. Czech Republic , no. 40552/02 ( dec .), §§ 11-24, 16 October 2007).

COMPLAINTS

1. The applicant complain ed under Article s 6 § 1 and 13 of the Convention that that the above proceedings had lasted an unreasonably long time and that he had not had any domestic remedy in this respect.

2. He further alleged a violation of his right to a fair hearing in that the Military Social Security Office and the Ministry of Defence had not complied with the judgment of the Municipal Court of 10 April 1996 and that of the Supreme Court of 12 October 1999 .

THE LAW

1. The applicant first complained that the length of the above proceedings had been in breach of the “reasonable time” requirement within the meaning of Article 6 § 1 of the Convention which provides, in so far as relevant:

“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal.”

The Government objected that the applicant could have resorted to the compensatory remedy provided for by Act no. 82/1998.

The Court recalls that, by virtue of Article 1 of the Convention, the primary responsibility for implementing and enforcing the guaranteed rights and freedoms is laid on the national authorities. The machinery of complaint to the Court is thus subsidiary to national systems safeguarding human rights ( Kudla v. Poland [GC], no. 30210/96, § 152, ECHR 2000-XI).

The Court further recalls that an applicant ’ s status as a “victim” within the meaning of Article 34 of the Convention depends on the fact whether the domestic authorities acknowledged, either expressly or in substance, the alleged infringement of the Convention and, if necessary, provided appropriate redress in relation thereto. Only when these conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application ( Cocchiarella v. Italy [GC], no. 64886/01, § 71, ECHR 2006-V).

Bearing in mind the fact that the Ministry of Justice acknowledged that there had been a violation of Article 6 § 1 of the Convention, the Court considers that the first condition laid down in its case-law, namely acknowledgment by the authorities of the infringement of a right protected by the Convention, has been satisfied.

As regards the second condition, that is appropriate redress from the authorities for the wrong suffered, the Court must determine whether the sum awarded can be considered sufficient to make good the alleged damage and breach ( Dubjaková v. Slovakia ( dec .), no. 67299/01, 19 October 2004).

With regard to the refusal of the claim in respect of pecuniary damage, the Court considers that the losses alleged by the applicants have not been substantiated, either at domestic level or in the proceedings before it, and that there is no causal link between the exces sive length of the proceedings and the damage alleged.

As regards compensation for non-pecuniary damage, the Court observes that according to its case-law that term refers to the anxiety, inconvenience and uncertainty caused by the alleged violation, and other non-pecuniary loss ( Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 29, ECHR 2000-IV, cited above, § 29) .

In the light of the material in the file and having regard to the particular circumstances of the case, the Court considers that the sum awarded to the applicant in respect of non-pecuniary damage he might have sustained in the first step of administrative proceedings can be considered sufficient and appropriate redress for the violation suffered. The Court thus considers that the decision of the Ministry of Justice was consistent with the Court ’ s case-law. It therefore concludes that the second applicant can no longer claim to be a “ victim” within the meaning of Article 34 of the Convention of the alleged violation of his right to a hearing within a reasonable time.

The Court further considers that as the applicant did not submit any compensation claim in respect of the second set of administrative proceedings, he has not exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention.

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

2. The applicant also complained that he had had no effective domestic remedy at his disposal under Article 13 of the Convention, which provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court has already found that Act no. 82/1998 as amended does provide the applicants with an effective remedy in respect of the complaint about the length of the proceedings. That finding is valid in the context of the complaint under Article 13 of the Convention.

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

3. The applicant further alleged a violation of his right to a fair hearing guaranteed by Article 6 § 1 of the Convention.

The Court is of the opinion that, even assuming that in this respect the applicant has exhausted domestic remedies as required by Article 35 § 1 of the Convention, and to the extent that this complaint has been substantiated, there is no indication in the case file that the applicant ’ s rights under this provision have not been respected.

It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

4. In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention and to reject the application.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Peer Lorenzen Registrar President

[1] 1 EUR = 25.97 CZK