FOURTH SECTION

DECISION

Application no. 1928/04 by Marta ŠEVČÍKOVÁ against Slovakia

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

Nicolas Bratza , President, Giovanni Bonello , Stanislav Pavlovschi , David Thór Björgvinsson , Ján Šikuta , Päivi Hirvelä , Ledi Bianku , judges, and Fatoş Aracı , Deputy Section Registrar

Having regard to the above application lodged on 29 December 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 submitted by the applicant,

Having regard to the Government ’ s declaration of 14 January 2008,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Marta Ševčíková , is a Slovak national who wa s born in 1961 and lives in Ve ľký Kýr . She wa s represented before the Court by Ms O. Szab ó , a lawyer practising in Patince . The Slovak Government (“the Government”) we re represented by their Agent, Mrs M. Pirošíková .

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

1. Background and action of 199 4

The applicant has an ongoing dispute with a housing cooperative which owns non-residential premises in which the applicant used to run a bar and a restaurant under a contract signed in 1992 with the cooperative .

On 9 December 199 4 the cooperative brought an action against the applicant in the Nové Zámky District Court seeking an order for payment of an amount of money for the applicant ’ s use of the premises.

The District Court granted the action on 27 March 2002. On 12 March 2003 the court of appeal upheld the first-instance judgment. The decisions became final and binding on 6 August 2003.

2. Counterclaim

a) Proceedings before the ordinary courts

On 28 March 1996 the applicant lodged a counterclaim in the proceedings in the above action. She claimed that the cooperative had prevented her from running her business properly and sought damages .

On 15 July 1996 the District Court ruled that the applicant ’ s counterclaim would be determined in a separate set of proceedings.

On 3 February 2004 the applicant ’ s counterclaim was registered under a new file number .

The District Court then requested the applicant to pay court fees but it turned out that she had already done so in 1996.

On 24 May 2004 the District Court requested the cooperative to submit observations in reply, which the cooperative did on 30 June 2004.

A hearing scheduled for 20 September 2004 did not take place because the applicant had sought the withdrawal of the District Court judge. She considered the judge to be biased on the ground that the latter had failed to proceed with the case for eight years. This motion was dismissed by the Nitra Regional Court on 30 September 2004. The decision stated, with reference to Article 14 § 3 of the Code of Civil Procedure, that the way in which a judge deals with a case is not as such a valid reason to exclude him or her.

A further hearing was held on 4 February 2005. Between 24 February and 26 May 2005 the applicant ’ s representative asked the District Court on four occasions to adjourn the case. The applicant failed to appear on 27 May 2005 and she asked for hearings scheduled for 20 June and 7 October 2005 to be postponed due to her illness.

The parties failed to appear on 20 January, 19 April and 15 May 2006.

The District Court scheduled hearings for 21 June, 4 October and 6 November 2006.

Between 22 November 2006 and 3 April 2007 the applicant asked on three occasions for an extension of the time-limit for submission of information related to taking of expert evidence. The applicant submitted the relevant documents on 18 June 2007. The District Court appointed an expert on 27 June 2007. The expert submitted her opinion on 4 December 2007.

On 11 February 2008 the District Court adjourned the case.

The counterclaim proceedings are pending.

b) Constitutional proceedings

On 20 October 2 004 the applicant lodged a complaint under Article 127 of the Constitution with the Constitutional Court . She claimed that the length of the proceedings in her counterclaim action had been excessive and had infringed her right to a hearing without “unjustified delay” under Article 48 § 2 of the Constitution and within a “reasonable time” under Article 6 § 1 of the Convention. She claimed 15,000,000 Slovakian korunas (SKK) in compensation for non-pecuniary damage.

In a letter dated 2 January 2005 the applicant ’ s advocate, with reference to the Regional Court ’ s decision of 30 September 2004 and the applicant ’ s state of health, expressed the belief that the Constitutional Court would conclude that the District Court judge dealing with the counterclaim should be excluded.

On 5 January 2005 the Constitutional Court found that the District Court had infringed the applicant ’ s right to have her counterclaim determined without unjustified delay and within a reasonable time; ordered the District Court to proceed with the case expeditiously; awarded the applicant SKK 50,000 [1] by way of compensation in respect of non-pecuniary damage and ordered reimbursement of her legal costs.

The Constitutional Court observed that the District Court had been inactive without any justification from 15 July 1996 to 3 February 2004 which of itself was sufficient for it to conclude that the applicant ’ s rights had been infringed.

3. Action of 1999 and related constitutional complaint

In 1999 the cooperative brought an action for rent arrears against the applicant in the District Court in Nové Zámky .

On 9 December 2005 the District Court granted the action in part. It decided in the absence of both the applicant and her advocate despite the fact that the advocate had requested that the hearing be adjourned. The judgment was served on the applicant ’ s lawyer on 19 December 2005. An appeal lay against it within 15 days of the date of service.

On 30 January 2006 the applicant requested leave to appeal, after the expiry of the statutory period for appealing. She argued that she had been unable to lodge the appeal in time for health reasons. On 2 February 2006 the District Court dismissed the request as unsubstantiated. An appeal lay against this decision.

On 13 February 2006 the applicant lodged, through her advocate, a complaint with the Constitutional Court . When formulating the text of the judgment which she sought to obtain from the Constitutional Court the applicant expressly invoked her rights under Article 48 § 2 of the Constitution “to a fair hearing” and “to have the case examined in her presence” with reference to the proceedings leading to the District Court ’ s judgment of 9 December 2005.

On 1 March 2006 the Constitutional Court declared the complaint inadmissible. It observed that the District Court had been involved in the case as a first-instance court and that review of its decisions was primarily entrusted to the court of appeal. In view of the subsidiary role of reviews by the Constitutional Court , it had no jurisdiction to examine the District Court ’ s decisions directly.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention that the above court proceedings were unfair and had lasted an excessively long time and that the District Court judge dealing with her counterclaim had not been excluded.

T HE LAW

The applicant complained of unfairness and excessive length of the proceedings. She relied on Article 6 § 1 of the Convention, the relevant part of which provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by an ... impartial tribunal...”

A. Length of proceedings

1. Proceedings concerning the applicant ’ s counterclaim

The Court gave notice to and asked the respondent Government to submit their comments on the complaint concerning the length of the proceedings related to the applicant ’ s counterclaim of 28 March 1996.

By a letter dated 14 January 2008 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this complaint. They further requested the Court to strike out this part of the application in accordance with Article 37 § 1 (c) of the Convention.

The declaration provided as follows:

“The Government acknowledge both the applicant ’ s victim status within the meaning of Article 34 of the Convention and the unreasonable duration of the domestic proceedings in which the applicant was involved.

I, Marica Piro šíkov á, the Agent of the Government of the Slovak Republic before the European Court of Human Rights, declare that the Government offer to pay ex gratia to the applicant Mrs Marta Ševčíková the sum of EUR 3,500 (three thousand five hundred euros ). This sum shall cover any pecuniary and non-pecuniary damage together with any costs and expenses incurred by the applicant with respect to the infringement of her right under the Convention.

The Government would suggest that the above information might be accepted by the Court as “any other reason” justifying the striking of the case out of the Court ’ s list of cases, as referred to in Article 37 § 1 (c) of the Convention.

In the event of the Court ’ s decision pursuant to Article 37 § 1 of the Convention, the Government undertake to pay the declared sum to the applicant within three months of the date of notification of the decision. This sum will be converted into Slovakian korunas at the rate applicable on the date of payment, and free of any taxes that may be applicable. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. This payment will constitute final settlement of the case.”

The applicant objected that the sum proposed was disproportionately low in view of the damage which she had suffered.

The Court notes that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application or part of an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

The Court also notes that under certain circumstances it may strike out an application or a part thereof under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued. To this end, the Court will examine the declaration carefully in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (see Tahsin Acar v. Turkey , [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; Meriakri v. Moldova ((striking out), no. 53487/99, 1 March 2005; Swedish Transport Workers Union v. Sweden ((striking out), no. 53507/99, 18 July 2006; and Van Houten v. the Netherlands ((striking out), no. 25149/03, ECHR 2005 IX).

The Court has established in a number of cases its practice concerning complaints about the infringement of one ’ s right to a hearing within a reasonable time (see, for example, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII, and Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006 ....). Furthermore, it has already had occasion to address complaints related to alleged infringement of one ’ s right to a hearing within a reasonable time in cases against the Slovak Republic (see, for example, Kuril v. Slovakia , no. 63959/00, §§ 35-43, 3 October 2006; Rišková v. Slovakia , no. 58174/00, §§ 88-97, 22 August 2006; and Sika v. Slovakia , no. 2132/02, §§ 28-35, 13 June 2006).

Having regard to the nature of the admissions contained in the Government ’ s declaration, as well as the amount of compensation proposed (which is consistent with the amounts awarded in similar cases), the Court considers that it is no longer justified to continue the examination of the relevant part of the application (Article 37 § 1 (c)) (see, for the relevant principles, Tahsin Acar , cited above; Haran v. Turkey , no. 25754/94, judgment of 26 March 2002; also Felbert v. Slovakia ( dec .), no. 14081/03, 19 June 2007, and Zemanová v. Slovakia ( dec .), no. 32494/05, 11 September 2007). Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this part of the application (Article 37 § 1 in fine). Accordingly, it should be struck out of the list.

2. The other sets of proceedings

As regards the proceedings related to the cooperative ’ s action of 9 December 199 4, the applicant has not shown that she complained about their length to the Constitutional Court pursuant to Article 127 of the Constitution, as effective since 1 January 2002.

Similarly, it does not follow from the documents before the Court that the applicant lodged a complaint under Article 127 of the Constitution, in accordance with the formal requirements as interpreted and applied by the Constitutional Court (see Lubina v. Slovakia , no. 77688/01, § § 46 and 63 , 19 September 2006 ), in respect of the length of the proceedings concerning the cooperative ’ s action of 1999. In particular, the applicant failed to include this particular complaint in the text of the finding which she requested the Constitutional Court to make.

It follows that this part of the application must be rejected under Article 3 5 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

B. Right to a fair hearing by an impartial tribunal

a) The Court notes that in the proceedings concerning the cooperative ’ s action of 1999 the District Court in Nov é Zámky on 2 February 2006 dismissed as unsubstantiated the applicant ’ s request for leave to appeal against the first-instance judgment of 9 December 2005 after the expiry of the statutory period for appealing. An appeal lay against that decision. It does not appear from the documents available that the applicant used that remedy or that, ultimately, she sought redress in that respect before the Supreme Court by means of an appeal on points of law.

The fact that the Constitutional Court , on 1 March 2006, rejected the applicant ’ s complaint related to the proceedings leading to the District Court ’ s judgment of 9 December 2005 for her failure to exhaust the other remedies available cannot affect the position.

As to the complaint about unfairness of the proceedings concerning the cooperative ’ s action of 1994, there is no indication that the applicant sought redress before the Constitutional Court by means of a complaint under Article 127 of the Constitution.

It follows that this part of the application must be rejected under Article 3 5 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

b) As regards the complaint that the District Court judge dealing with the applicant ’ s counterclaim had not been excluded, the Nitra Regional Court , on 30 September 2004, found that the judge ’ s failure to proceed with the case for a long period of time did not as such justify that judge ’ s exclusion for bias. In view of the documents before it, and even assuming that the applicant exhausted domestic remedies as required by Article 35 § 1 of the Convention, the Court does not consider that conclusion as being contrary to the applicant ’ s right to a hearing by an impartial tribunal.

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

C. Article 29 § 3 of the Convention

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

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government ’ s declaration and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike the application out of its list of cases in so far as it concerns the complaint about the length of the proceedings related to the applicant ’ s counterclaim lodged in 1996, in accordance with Article 37 § 1 (c) of the Convention; and

Declares the remainder of the application inadmissible.

FatoÅŸ Aracı Nicolas Bratza Deputy Registrar President

[1] SKK 50,000 was equivalent to approximately 1,300 euros (EUR) at that time.