FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 64007/00 by Ivan MATYS against Slovakia

The European Court of Human Rights ( Fourth Section), sitting on 14 March 2006 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr J. Casadevall , Mr M. Pellonpää , Mr R. Maruste , Mr K. Traja , Ms L. Mijović , Mr J. Šikuta, judges ,

and Mr M. O ’ Boyle , Section Registrar ,

Having regard to the above application lodged on 1 October 2000 ,

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 Ivan Matys, is a Slovakian national, who was born in 1962 and lives in Prievidza. The respondent Government are represented by Mrs A. Poláčková , their Agent.

A. The circumstances of the case

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

T he applicant was employed with a private limited liability company D (“the company”) which was wholly owned and managed by a private individual, Mr D (“the owner”) . In April 1994 the applicant ’ s employment was terminated.

1. P roceedings concerning the company

On 2 June 1994 the applicant lodged an action against t h e company with the Prievidza District Court ( Okresný súd ) . He sought a n order for payment of outstanding wages , severance pay and certain social allowances .

In January 1995 the owner died. Consequently, on 29 May 1995 , the District Court took a decision to stay the ac tion pending the completion of the inheritance proceedings.

On 30 May 1997 the Trenčín Regional Court ( Krajský súd ) wound up ( zru šenie ) the company. B y operation of th is decision, the company au tom atically become the subject of liquidation proceedings.

Although there was no formal decision to resume the proceedings, the District Court has subsequently taken several procedural steps, chiefly with a view to establishing the facts of the case.

In various subsequent official correspondence and decisions, for example in a letter f rom the District Court to the applicant of 6 April 1998 , a letter from th e Trenčín Commercial Register of Companies ( Obchodný register ) to the applicant of 14 May 1999 and in a decision of the District Court of 3 November 2000, it was observed that proceedings for t he company ’ s liquidation could not be carried out. This was so because, under the relevant laws then in force , it was not possible to appoint an ex officio liquidator in respect of a company wh ere the owner and manager ha d died. The applicable legal rules were embodied in Articles 70 et seq. of the Commercial Code (Law no. 513/1991 Coll.). U ntil new legislation wa s passed t o address this problem, no steps could be taken towards the company ’ s liquidation.

On 27 March 2002 the Bratislava Regional Court dismissed a motion by a creditor t o declare the company insolvent having found that i t had no remaining assets. As a consequence, pursuant to Article 68 § 3 (d) of the Commercial Code, the company was au tom atically dissolved ( z ánik ).

On 1 April 2003 the applicant lodged a request that, in view of the company ’ s apparent financial collapse, his claim be satisfied from a public fund for settle ment of labour ‑ law claims against insolvent employers ( “the fund” - Garančný fond ) . This fund had originally been established by virtue of the Employment Act (Law no. 387/1996 Coll.), the relevant rules being later replaced by the applicable provisi ons of the Labour Code (Law no. 311/2001 Coll.) and the Social Insurance Act (Law no. 461/2003 Coll.).

On 7 April 2003 the then administrator of the fund dismissed the request as being out of time.

On 17 February 2004 , further to its winding up and dissolution, the company was erased from the Commercial Register of Companies .

On 17 August 2004 , on the applicant ’ s motion, the District Court admitted the current administrator of the fund, the Social Security Administration ( Soci álna poisťovňa ), into the proceedings as the second defendant of the action.

On 1 October 2004 an amendment (Law no 432/2004 Coll.) to the Commercial Code entered into force which provided inter alia that, if it was impossible to appoint a liquidator by ordinary means, a liquidator should be appointed by the court from a list of persons available as bankruptcy trustees (Article 71 § 4). The remuneration of such trustees is governed by a decree of the Minister of Justice (Decree no. 526/2004 Coll.), which also entered into force on the same day.

In December 2004 the District Court discontinued the proceedings in so far as the action concerned the company. The action, however, continued under an unchanged file number and in the framework of the same set of proceedings as regards the Social Security Administration.

On 23 February 2005 , following a hearing held on the same day, the District Court dismissed the action against the Social Security Administration. The applicant challenged the judgment by an appeal which is still pending.

2. Inheritance proceedings concerning the estate of the owner

On 8 March 1995 , ex offic i o , the District Court opened inheritance proceedings in respect of the estate of the owner and authorised a notary public to carry on the proceedings.

In a letter of 7 January 1997 the District Court informed the applicant that his claim could not be settled in the inheritance proceedings as it did not concern the owner directly. Claims against the company were to be asserted in the context of the company ’ s liquidation.

On 5 June 2003 the District Court gave a final decision in the inheritance proceedings. The whole estate devolved to the owner ’ s wife and children.

COMPLAINTS

1. The applicant complained under Article 6 § 1 of the Convention that he had not had a fair hearing of his action of 1994 within a reasonable time. He argued in particular that the action could not have been determined, as there we re no legal rules allow ing for an ex officio liquidation of the company .

2. Relying on Article 13 of the Convention , the applicant also complained that he had no effective remedy at his disposal as regards his complaints under Article 6 § 1 of the Convention .

THE LAW

1. The applicant complained that, in determination of his action of 1994, he had not had a fair hearing within a reas onable time contrary to Article 6 § 1 of the Convention, the relevant part of which provides that:

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

(a) In so far as the applicant ’ s right of access to a court was concerned, the Government argued that the applicant failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention. They maintained, in particular, that the applicant could have brought any of his objections as regards the way in which the District Court had handled his action to the Constitutional Court under Article 127 of th e Constitution, in force from 1 January 2002 . The Government further pointed out that, as from 1 October 2004 , the legislative shortcoming concerning the liquidation of “dormant” commercial companies had been remedied. In their view, therefore, the present case raised no issue of access to court and should be examined solely from the point of view of the length of the proceedings (see below). The Government finally maintained that the fairness of the proceedings as such could only be assessed once the proceedings were completed and pointed out that the proceedings in the present case were still pending.

The applicant maintained that he had complied with the requirement of exhaustion of domestic remedies pursuant to Article 35 § 1 of the Convention and maintained his complaint.

The Court observes that the subject ‑ matter of the applicant ’ s action of 1994 were his employment ‑ related claims. He had originally directed these claims against his former employer, the company, which became insolvent, was wound up and later ceased to exist. In the meantime, the applicant redirected his claims against the administrator of the fund, the Social Security Administration, against which they are still pending.

In these circumstances, the Court finds that the applicant actually has access to court with a view to having his claims judicially determined. In so far as his complaint concerns the outcome of such a determination, it is premature as the proceedings are still pending. In this connection it is specifically noted that the claim against the Social Security Administration is being examined in the framework of the same proceedings and under the same file number as the claim against the company and can in fact be understood as its continuation.

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

(b) Regarding the length of the proceedings in the action of 1994, the Government primarily pleaded non-exhaustion of domestic remedies in that the applicant had not raised a complaint to this effect before the Constitutional Court under Article 127 of the Con stitution, in force from 1 January 2002 .

The applicant argued that, at the time of the introduction of the application, he had exhausted all domestic remedies available to him and that he had complied with the requirement of the exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention. He then maintained his complaint.

The Court has found that the complaint under Article 127 of the Constitution is an effective remedy, both in law and in practice, in the sense that it is capable of preventing the continuation of the alleged violation of the right to a hearing without undue delay and of providing adequate redress for any violation that has already occurred. It has held that the applicants in cases against Slovakia which concern the length of proceedings should have recourse to this remedy notwithstanding that it was enacted after their applications had been filed with the Court or the European Commission of Human Rights (see Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01, 60226/00 , ECHR 2002-IX ).

In the present case the proceedings complained of are still pending. The applicant, who was represented before the Court by a lawyer, has neither made use of the said remedy in accordance with the applicable procedural requirements, nor has he put forward any arguments capable of persuading the Court that he was not required to do so for the purposes of Article 35 § 1 of the Convention.

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.

2. The applicant also complained that he had no effective remedy at his disposal as regards his complaints under Article 6 of the Convention, contrary to Article 13 of the Convention which provides that:

“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 noted a bove that the applicant ’ s employment ‑ related claims are still pending against the Social Security Administration. In so far as the length of the proceedings in respect of them is in play, the applicant has in fact had a remedy, namely the complaint under Article 127 of the Constitution.

It follows that the complaint under Article 13 of the Convention is manifestly ill-founded and must be rejecte d in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to discontinue the application of Article 29 § 3 of the Convention and de clares the application inadmissible.

Michael O ’ Boyle Nicolas BRATZA Registrar President