FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 2996/02 by Stanislav MINICH against Slovakia

The European Court of Human Rights (Fourth Section), sitting on 2 October 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 27 December 2001,

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 Stanislav Minich , is a Slovak national who was born in 1941 and lives in Kanianka . The Slovak Government (“the Government”) were represented by Ms A. Poláčková , their Agent, who was succeeded in that function by Ms M. Pirošíková .

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

The applicant ’ s parents were members of an agricultural cooperative in which they had included their agricultural land. The applicant who inherited their ownership title to that land was also a member.

The cooperative underwent a transformation under the Adjustment of Property Relations and Claims in Cooperatives Act (Law no. 42/1992 Coll. – “the 1992 Act”) so as to make it compatible with the new economic system and legal order. Former members who did not become members of the transformed cooperatives, like the applicant, were entitled to compensation in respect of their membership interest. The 1992 Act contained no express provisions as to the form of such compensation.

In August 1992 the applicant lodged a demand with the cooperative for compensation in respect of his membership interest under the 1992 Act. Despite promises, the demand has not been satisfied.

On 13 May 1994 the applicant brought an action against the cooperative in the Prievidza District Court ( Okresný súd ). He sought a judicial order for a determination of his membership interest. The cooperative then provided assurances that it would settle the claim voluntarily. In response, the applicant withdrew the action and, on 11 September 1995, the proceedings were discontinued.

On 2 November 1995 the applicant re-submitted his claim to the District Court arguing that the cooperative had not honoured its pledge.

On 1 January 1996 an amendment (Law no. 264/1995 Coll. – “the 1995 amendment”) to the 1992 Act entered into force which introduced special provisions concerning the form of compensation to be provided in respect of membership in cooperatives. Former members who had not been compensated in another form were to be issued shares ( družstevné podielnické listy ) in the cooperative in question.

On an unspecified date the applicant extended the action in that he also sought financial compensation for the use of his land by the cooperative. This claim was the subject of a friendly settle ment and the District Court approved the settlement on 21 February 1997.

On 15 October 1997 the applicant further extended the action by seeking compensation under the Land Ownership Act (Law 229/1991 Coll. – “the 1991 Act”) in respect of among other things livestock ( živý a mŕtvy inventár – “the stock”) brought into the cooperative. He also claimed interest for the late payment of the compensation sought .

On 26 March 1998 the District Court ruled that the remain ing claims , that is to say the claim s for compensation for membership and for the stock, would be determined in a new set of proceedings which was at the same time opened under a different file number. In 1999 the action was registered again under a new file number.

The action was determined on 28 December 2000 by the District Court and, on appeal, on 14 March 2002 by the Trenčín Regional Court ( Krajský súd ). The courts established the financial value of the applicant ’ s membership interest in the cooperative and found that he fulfilled all the conditions for being compensated. As to the form of the compensation, they relied on the 1995 amendment and ordered that the cooperative was to choose between granting the applicant agricultural equipment, issuing him shares or paying him an amount of money corresponding to the value of his interest. The applicant ’ s membership interest in fact represented his rights in respect of the estate of the cooperative. Although it could be settled in several ways, a share in the cooperative was the most appropriate way of compensating him for that interest. The nature of this claim was not financial and, therefore, no late payment interest could be imposed. The courts further established the financial value of the stock and ordered that the cooperative pay the relevant amount plus late payment interest to the applicant. The matter became res iudicata on 15 May 2002.

The applicant filed a petition for judicial enforcement of the above judgments. The enforcement commenced but was subsequently stayed on the defendant ’ s appeal on the ground that the judgments had been challenged by way of an extraordinary remedy (see below).

On 12 May 2003 the Prosecutor General acceded to the defendant ’ s request and exercised his discretionary power to challenge the judgments of 28 December 2000 and 14 March 2002 by means of an extraordinary appeal on points of law ( mimoriadne dovolanie ) on the defendant ’ s behalf.

On 12 August 2004 the Supreme Court ( Najvyšší súd ) dismissed the Prosecutor General ’ s appeal. Its judgment was final .

The applicant then unsuccessfully sought the reopening of the proceedings.

COMPLAINTS

1 . The applicant complained under Article 6 § 1 of the Convention that his proceedings had been unfair in that the courts had arbitrarily ( i ) granted his claim for compensation in respect of his membership interest in the cooperative in the form of shares in the cooperative and (ii) dismissed his claim for interest to be paid on the late payment of that compensation.

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

3. The applicant also complained under Article 1 of Protocol No. 1 ( i ) that during, and as a result of, the excessive length of the proceedings in his action and in his enforcement petition he had been unable to enjoy his possessions peacefully; and (ii) that the courts had arbitrarily ruled against him as regards the form of compensation for his membership interest and the award of interest for the late payment of that compensation.

4. The applicant finally complained under Article 13 of the Convention that he had not had at his disposal an effective remedy in respect of his other complaints under the Convention and its Protocols.

THE LAW

1. The applicant complained that the proceedings in his action had been unfair and that their length had been excessive. He relied on Article 6 § 1 of the Convention which, in so far as relevant, provided that:

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

The Government argued that the proceedings had been procedurally fair and concluded that the first part of the Article 6 complaint was manifestly ill-founded. They also submitted that the applicant had failed to challenge the outcome of the proceedings before the Constitutional Court .

The applicant disagreed and claimed that the courts had disregarded the law and decided arbitrarily.

The Court observes that on 1 January 2002 a new remedy under Article 127 of the Constitution became available in Slovakia for human-rights complaints (see, for example, Andrášik and Others v. Slovakia ( dec .), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01 and 60226/00, ECHR 2002 IX). This remedy was found applicable to complaints concerning unfairness of proceedings (see, for example, Savka v. Slovakia ( dec .), no. 77936/01, 30 May 2006).

The Court observes that the present proceedings ended with the judgment of 28 December 2000, which was upheld on appeal on 14 March 2002. The matter was then re-examined following an extraordinary appeal on points of law lodged by the Prosecutor General, which was dismissed on 12 August 2004.

It was open to t he applicant t o challenge the decisions of 14 March 2002 and 12 August 2004 by way of a complaint to the Constitutional Court . He has neither done so nor shown any reasons why he should be exem p te d from the obligation to do so for the purposes of Article 35 § 1 of the Convention.

As for the length of the proceedings, the Government distinguished their part leading to the decision of 21 February 1997, their part leading to the decision of 26 March 1998 and the remaining proceedings. They considered that the complaint of the length of these parts of the proceedings was inadmissible as being belated, as being manifestly ill-founded and for non-exhaustion of domestic rem edies , respectively.

The applicant disagreed and reiterated his complaint.

The Court observes first of all that in the present case the applicant had raised several different claims against the agricultural cooperative. These claims were formally determined under various file numbers. However, as for their substance, they were closely interrelated and concerned the same parties. The Court finds that, in the circumstances, for the purposes of assessing the length of the proceedings under Article 6 § 1 of the Convention, these different claims should be treated as a single dispute.

The Court reiterates that, as a general rule, a complaint under Article 127 of the Constitution is a remedy to be used in respect of length of proceedings (see Andrášik and Others , cited above) and it is the task of applicants to formulate their constitutional complaints so as to allow the Constitutional Court to examine the overall length of the proceedings (see Obluk v. Slovakia , no. 69484/01, § 61, 20 June 2006). No arguments have been put forward before the Court capable of persuading it that this remedy should not be used in circumstances such as those in the present case (see Šidlová v. Slovakia , no. 50224/99, § 53, 26 September 2006) .

For the sake of completeness, the Court notes that, as the proceedings in the present case finally ended with the decision of the Supreme Court of 12 August 2004, it must be distinguished from cases where, as in the present case, applications were lodged with this Court before 1 January 2002, but where, unlike in the present case, the proceedings complained of finally ended prior to the above- cit ed Andrášik and Others decision of 22 October 2002 (see, for example, Preložník v. Slovakia , no. 54330/00 , § 78, 12 December 2006 ). In those cases the applicants could rely on the Court ’ s general practice to assess the issue of exhaustion of domestic remedies with reference to the date of introduction of their individual applications and were found not to be subject to the exception from the rule, as formulated in the Andrášik and Others decision. The applicant did not complain of the length of the proceedings before the Constitutional Court .

It follows that the all of the complaint s under Article 6 § 1 of the Convention must be rejected under Article 35 §§ 1 and 4 of the Convention for non ‑ exhaustion of domestic remedies.

2. The applicant complained that he had been unable to enjoy his possessions peacefully during , and as a result of , the excessively lengthy proceedings and that the courts had arbitrarily decided some aspects of his case against him. He relied on Article 1 of Protocol No. 1, which provides as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

As for the comp lai nt under Article 1 of Protocol No. 1 in relation to the length of the proceedings, the Government referred to their arguments under Article 6 § 1 of the Convention and also submitted that it had been open to the applicant to seek compensation in respect of his alleged pecuniary damage under the State Liability Act of 1969.

The applicant disagreed and reiterated his compla i nt.

The Court recalls that, in respect of complaints such as the present one, applicants should normally claim compensation in respect of non ‑ pecuniary damage by way of a complaint under Article 127 of the Constitution and in respect of pecuniary damage by way of an action under section 18(1) of the State Liability Act of 1969 (see Csepyová v. Slovakia ( dec .), no. 67199/01, 8 April 2003 and Å ebeková and Horvatovičová v. Slovakia, no. 73233/01, § 52, 14 February 2006). The applicant has not done so and the Court finds no reasons for absolving him from the obligation to do so for the purposes of Article 35 § 1 of the Convention.

As for the court rulings concerning the form of compensation for the applicant ’ s interest in the cooperative and late payment interest, the Government relied on the domestic courts ’ findings and stated that the applicant had no more than claims that had proven to be unfounded. He therefore could not be said to have had any possessions attracting ratione materiae the protection of Article 1 of Protocol No. 1.

The applicant argued that the contested rulings were unlawful and arbitrary.

The Court observes that the present complaint has the same factual and legal background as that under Article 6 § 1 of the Convention of the unfairness of the proceedings. The Court found above that that complaint was inadmissible for non-exhaustion of domestic remedies in that the applicant had failed to seek protection of his rights under Article 127 of the Constitution. The Court finds no reasons for reaching a different conclusion under Article 1 of Protocol No. 1.

It follows that the complaint under Article 1 of Protocol No. 1 must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

3. The applicant complained that he had had no effective remedy at his disposal in respect of his Convention complaints. He relied on Article 13 of the Convention, which reads as follows:

“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 Government submitted that the complaint was manifestly ill-founded because the applicant had had effective remedies available.

The applicant upheld his complaint.

The Court observes that the applicant ’ s other Convention complaints are inadmissible for non-exhaustion of domestic remedies. It follows that the applicant had remedies at his disposal which were compatible with the guarantees of Article 13 of the Convention (see Akdivar and Others v. Turkey , judgment of 16 September 1996, Reports 1996-IV, p. 1210, § 65) .

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

4. Having regard to the above conclusions , the application of Article 29 § 3 of the Convention to the case should be discontinued.

For these reasons, the Cou rt unanimously

Declares the application i nadmissible .

T.L. Early Nicolas B ratza Registrar President