FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40769/05 by Helena PAVKOV Á against Slovakia

The European Court of Human Rights (Fourth Section), sitting on 6 November 2007 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr J. Casadevall , Mr G. Bonello , Mr K. Traja , Mr S. Pavlovschi , Mr J. Šikuta , Mrs P. Hirvelä, judges , and Mr T.L. Early , Section Registrar ,

Having regard to the above application lodged on 21 October 2005,

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 declaration submitted by the respondent Government on 25 September 2007 requesting the Court to strike the application out of the list of cases and the applicant ’ s reply to that declaration,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Helena Pavkov á , is a Slovak national who was born in 1937 and lives in Revúca. She was represented before the Court by Mr J. Čipka, a lawyer practising in Hnúšťa. The Slovak Government (“the Government”) were represented by their Agent, Ms M. Piro šíková .

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

1. Action

On 24 May 1991 the applicant brought an action against her former husband in the Rožňava District Court ( Okresný súd ). She sought the division and distribution of their matrimonial property and an order for possession of some unrelated movable items.

On 28 January 1992 the District Court held a hearing following which, on the same day, it discontinued the proceedings concerning the order for possession. At the same time, it ruled that the claim for the dissolution of the matrimonial property would be determined in a separate set of proceedings which had been opened for that purpose under a new file number.

Between 14 July 1992 and 29 April 1993 the District Court scheduled six hearings. They were adjourned due to the absence of one or both parties and with a view to obtaining expert evidence.

On 6 October 1993 the District Court appointed an expert to produce the evidence needed. The expert later reported that it was impossible to fulfil the task due to the parties ’ failure to co-operate.

The applicant requested the District Court not to schedule hearings between 22 October and 13 November 1993 for reasons concerning her health.

On 24 July 1995 the District Court again requested the expert to draw up a report and advised the parties of the consequences of their failure to cooperate. The expert filed the report on 31 August 1995.

On 10 October 1995 the applicant ’ s lawyer requested that no hearings be scheduled until 31 October 1995.

Between 7 November 1995 and 14 May 1996 the District Court held three hearings. One of them was adjourned in order to allow the applicant to identify her witnesses and both parties to pay an advance on the fees for further expert evidence.

On 9 February 1996 the District Court ordered that the expert report of 31 August 1995 be completed. The expert filed an amendment to the report on 15 March 1996.

On 4 February 1997 the District Court appointed an expert who filed the report on the case on 1 October 1997.

On 10 March 1998 the District Court ruled on the expert ’ s fees and fixed a hearing for 19 March 1998. The hearing was postponed until 31 March 1998 at the request of the applicant ’ s lawyer because on the former date she was due to appear in court in connection with another case.

Between 21 April 1998 and 5 October 1999 the District Court held 3 hearings. They were adjourned due to the absence of the applicant ’ s lawyer and with a view to obtaining further expert evidence.

In a letter of 5 October 1998, in reply to the applicant ’ s complaint, the President of the District Court acknowledged that there had been “serious delays” in the proceedings which were due to the “irresponsible approach” taken by the judge in charge of the case. He further stated that measures were being taken to rectify the situation.

On 10 September 2001 the District Court ordered further expert evidence and appointed an expert who submitted his report on 13 November 2001.

Between 13 March 2002 and 2 April 2003 the District Court held 3 hearings. One of them was adjourned in order to obtain further evidence. The District Court requested such further evidence from the Rožňava police and another expert on 14 March and 11 June 2002, respectively.

On 12 November 2002 and 12 February 2003, respectively, the expert filed his report and the District Court fixed his fees.

On 14 May 2003 the District Court ordered the taking of further expert evidence. On 13 August 2003 the expert informed the District Court that it had been impossible to produce the report because, due to the absence of the parties, he had been unable to obtain access to and inspect the premises in question.

On 31 October 2003 the Košice Regional Court ( Krajský súd ) dismissed the defendant ’ s challenge to the District Court judge dealing with the action for bias.

On 9 February 2004 the District Court requested the applicant to clarify who was acting for her because it appeared that she had a new lawyer but had not terminated the power of attorney of her previous lawyer. The applicant responded on 25 February 2004.

On 15 March 2003 the District Court ordered the parties to allow the expert to inspect the premises in order to produce the report requested by the decision of 14 May 2003. The expert submitted the report on 28 June 2004 after having been served with a reminder.

Between 11 August and 13 October 2004 the District Court held three hearings.

On 3 January 2005 the District Court ordered that further expert opinion be submitted within a time-limit that was extended twice, on the last occasion until 2 May 2005.

On 14 June 2005 the District Court delivered a judgment in which it divided the applicant ’ s and her former husband ’ s matrimonial property. It comprised 154 various movable items, a garden with a cottage, two flats and two garages. The District Court subsequently corrected a clerical error in the judgment. The defendant appealed.

In a letter of 20 June 2004, in response to the applicant ’ s complaint, the President of the Regional Court acknowledged that there had been unjustified delays in the proceedings. He also acknowledged that the assessment of the complaint by the President of the District Court, who had examined it before and who had found it only well-founded in part, had been wrong.

On 5 August 2005 the defendant died. The proceedings are still pending.

2. Constitutional complaint

On 11 May 2005 the Constitutional Court ( Ústavný súd ) found, on the applicant ’ s complaint under Article 127 of the Constitution, that the District Court had violated her right under Article 48 § 2 of the Constitution to a hearing without unjustified delay. It ordered the District Court to proceed with the matter promptly, pay the applicant 35,000 Slovakian korunas [1] (SKK) in just satisfaction in respect of non-pecuniary damage and reimburse her legal costs.

COMPLAINTS

1. The applicant complained under Article 6 § 1 of the Convention that the length of the proceedings had been excessive.

2. The applicant also complained under Article 13 of the Convention that she had no effective remedy at her disposal in respect of the length of the proceedings.

THE LAW

A. Length of proceedings

The applicant complained that the length of the proceedings had breached 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 ... hearing within a reasonable time by [a] ... tribunal...”

By letter dated 20 September 2007 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 status of victim within the meaning of Article 34 of the Convention and the unreasonable duration of the domestic proceedings in which the applicant was involved.

I, Miroslava B álintová , the Co-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 Ms Helena Pavkov á the sum of EUR 6,000 (six thousand 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 violation 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 out 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 to the applicant the declared sum within three months from 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 in her written reply dated 3 October 2007 rejected the Government ’ s initiative essentially on the ground that the compensation proposed was insufficient.

The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike 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 recalls that under certain circumstances, it may strike out an application 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 carefully the declaration 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 violation 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; Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006 ....). Furthermore, it has already had occasion to address complaints related to alleged breach 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 or 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 as cited above; Haran v. Turkey , no. 25754/94, judgment of 26 March 2002 and 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.

The Court would point out that, since the proceedings are still pending before the domestic courts, the Court ’ s strike-out decision is without prejudice to the use by the applicant of Article 127 of the Constitution to obtain redress for any continuing delay in the proceedings.

B. Remaining complaint

The applicant also complained of the absence of an effective remedy contrary to 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 reiterates that the word “remedy” within the meaning of Article 13 of the Convention does not mean a remedy which is bound to succeed, but simply an accessible remedy before an authority competent to examine the merits of a complaint (see, mutatis mutandis , Bensaid v. the United Kingdom , no. 44599/98, § 56, ECHR 2001-I).

Even assuming that the applicant ’ s constitutional complaint did not provide appropriate redress for her, the Court finds that there are insufficient grounds for holding that the remedy under Article 127 of the Constitution in the circumstances of the present case was incompatible with the requirements of Article 13 of the Convention (see Šidlová v. Slovakia , no. 50224/99 , § 77, 26 September 2006 ).

It follows that the remainder of the application 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 Cou rt 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 length of the proceedings complaint, in accordance with Article 37 § 1 (c) of the Convention;

Declares the remainder of the application inadmissible.

T.L. Early Nicolas B ratza Registrar President

[1] SKK 35,000 is equivalent to approximately 1,000 euros (EUR).