FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 63994/00 by Ladislav EÅ TOK against Slovakia

The European Court of Human Rights (Fourth Section), sitting on 28 September 2004 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mrs V. Strážnická , Mr J. Casadevall , Mr R. Maruste , Mr S. Pavlovschi , Mr J. Borrego Borrego, judges , and Mr M. O ' Boyle , Section Registrar ,

Having regard to the above application lodged on 11 October 2000 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Ladislav Eštok, is a Slovakian national, who was born in 1959 and lives in Košice .

A. The circumstances of the case

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

The applicant ha d been employed as a car mechanic with a private entrepreneur until 5 January 1994 when he was dismissed with immediate effect for a n alleged se rious breach of work discipline .

In a letter of 10 January 1994 the applicant informed his employer that he considered the dismissal void and insisted that his employment continue.

1. The proceedings concerning the validity of the applicant ' s dismissal

The applicant challenged the validity of his dismissal before the Košice II District Court ( Okresný súd ).

On 20 June 1994 the District Court held a hearing. Immediately a fter the hearing, th e applicant ' s lawyer obtained a copy of the minutes of i t .

On 23 June 1994 the District Court ruled that the dismissal was void for formal reasons . In particular, it did not state with the requisite clar ity and certainty why the applicant was to be dismissed. T he ruling became final and binding on 16 September 1994 .

2 . The proceedings concerning the applicant ' s claims for lost wages

In January 1995 the applicant took another set of civil proceedings against the above entrepreneur. He maintained that, as the dismissal of January 1994 was void, his employment continued. He was however neither being assigned any work nor being paid any salary . He claimed financial compensation for the wages thus lost.

On 9 October 1996 the District Court took a decision on the action. It observed that, at the hearing held on 20 June 1994 in the proceedings concerning the validity of the dismissal, the applicant had declared that he no longer wished to be employed by the defendant. In such a case the applicant was entitled to financial compensation for wages lost in a period limited under Article 61 (3) (b) in conjuncti on with Articles 45 (1) and 46 (1) (f) of the Labour Code to two month s following the void dismissal , i.e. until March 1994 (“the first period”) . The District Court calculated the amount payable in respect of this period and ordered that the defendant pay th is amount to the applicant. Th e ruling concerning the first period became final and binding on 29 November 1996 . The District Court finally dismissed the action insofar as it was claimed compensation for the wages allegedly lost in the subsequent period.

On 26 November 1996 the applicant lodged an appeal . O n 2 December 1996 he submitted the reasons for i t. He challenged the District Court ' s judgment of 9 October 1996 only insofar as it had dismissed his claim , i.e. in relation to period after March 1994. He maintained that he had never made any statement to the effect that he was not i nterest ed in continu ing to be employed by the defendant . T here was no record of any such statement in the copy of the minutes of the hearing of 20 June 1994 that had been obtained by his lawyer.

On 30 March 1998 the KoÅ¡ice Regional Court ( Krajský súd ) quashed the challenged pa rt of the District Court ' s judgment and remitted the relevant part of the action ( i.e. pertaining to the period after March 1994 only ) to the latter for re ‑ examination. It noted that there was a discrepancy between the contents of the original version of the minutes of the court hearing of 20 June 1994 that was held in the respective court ‑ file and the copy of these minutes that had been submitted by the applicant. C ontrary to the applicant ' s copy, the version held in the court ‑ file contained a record of a statement by the applicant that he had no longer wished to be employed by the defendant. The Regional Court instructed the District Court to re ‑ examine the matter after having clarified this discrepancy.

The District Court held further hearings on 24 June, 29 July and 16 December 1998 .

On 24 February 1999 , following another hearing held on the same day, the District Court determined again the remaining part of the applicant ' s action. D espite all efforts, it was not possible to establish with certainty the legal nature of the applicant ' s statement at the hearing of 20 June 1994 as regards his further employment with the defendant. No conclusion could therefore be drawn from it and t he relevant facts o f the case had to be and in fact were established by means of other documentary evidence and several testimonies that were available . The District Court made a distin ction between the period from March to 16 September 1994 when the District Court ' s judgment of 23 June 1994 concerning the validity of the dismissal had become final and binding (“the second period”) and the period after that date (“the third period”) . As for the second period, the applicant was entitle d to compensation . The District Court calculated the amount payable and ordered th at the defendant p ay th is amount to the applicant . As for the third period, t he District Court finally decided that the existence and scope of any entitlement to compensation would be determined in another set of proceedings opened for this purpose under a separate file ‑ number. The defendant challenged this judgment by an appeal.

On 17 November 1999 the Regional Court quashed the District Court ' s judgment o f 24 February 1999 insofar as it concern ed the second period. It found that the District Court had not supported its determination of the amount payable in respect of this period by adequate reasoning and that it had failed to establish the facts relevant for this determination sufficiently .

On 18 October 2000 the District Court again determined the amount payable monthly to the applicant by way of compensation for wages lost in the second period and ordered th at th e defendant pay this amount to the applicant . The applican t and the defendant appealed on 1 and 6 December 2000 respectively .

On 26 April 2002 the Regional Court determined the appeals. It found that the District Court had sufficiently established the facts of the case. The District Court had however erred in its calculation of the amount payable and the Regional Court adjusted the calculation . No appeal lay against this judgment.

The separate set of proceedings which had been o pened pursuant to the District Court ' s judgment of 24 February 1999 in order to determine the applicant ' s claims pertaining to the third period is still pending.

3 . The proceedings before the Constitutional Court

On 15 July 2003 the applicant seized the Constitutional Court ( Ústavný súd ) with a complaint ( sťažnosť ) under Article 127 of the Constitutional Court as in force from 1 January 2002 . H e o bject ed that the length of the proceedings c on cerning his action of 1995 had been excessive and invited the Constitutional Court to find a violation of his right under Article 48 (2) of the Constitution to a hearing without unjustified delay, to order the Distric t Court to proceed with his case speedily , to award him 80,000 Slovakia n korunas (SKK) [1] by way of just satisfaction and to order th at th e District Court r eimburse his legal costs.

O n 5 December 2003 the Constitutional Court found that the District Court had violated t h e applicant ' s above constitutional right. It ordered that the District Court proceed with the case without delay and awarded the applicant SKK 5 0,000 [2] by way of just satisfaction in respect of non ‑ pecuniary damage . The Constitutional Court also ordered that the applicant ' s legal costs be reimbursed. The Constitutional Court took into consideration the whole duration of the proceedings since 1995 when the action had been lodged. The subject ‑ matter of these proceedings was not of a particular complexity . T he nature of the dispute called for special diligence. The applicant contributed to the overall length of the proceedings to some extent, in particular by not having formulated his early submissions with adequate cl arity . The District Court did not deal with the case effectively which was shown inter alia by the fact that its judgments of 9 October 1996 and 24 February 1999 had to be quashed as the relevant facts had not been established sufficiently. Moreover, the applicant ' s claim in relation to the third period was still pending . The Constitutional Court determined the amount of just satisfaction on an equitable basis referring to Article 41 of the Convention.

B. Rele vant domestic law and practice

The Constitution

Article 48 (2) provides, inter alia , that every person has the right to have his or her case tried without unjustified delay.

Prior to 1 January 2002 there was no “effective remedy” within the Convention meaning in Slovakia as regards this right (see, mutatis mutandis , Báno š ová v. Slovakia (dec.), no. 38798/97, 27 April 2000 ).

As from 1 January 2002 , the Constitution has been amended in that, inter alia , natural and legal persons can complain about a violation of their fundamental rights and freedoms pursuant to Article 127. Under this provision, the Constitutional Court has the power, in the event that it finds a violation of Article 48 (2) of the Constitution, to order the authority concerned to proceed with the case without delay. It may also grant adequate financial satisfaction to the person whose constitutional rights have been violated as a result of excessive length of proceedings (for further details see, e.g., Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01, 60226/00, 22 October 2002).

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention that t h e proceedings c on cerning his action of 1995 had been unfair in that the courts had arbitrarily awarded him lower amounts than he ha d been claiming . Under the same provision, he further complained that the length of his pr oceedings ha d been excessive.

THE LAW

The applicant complained that t h e proceedings concerning his action for compensation for lost wages had been unfair and that their length had been unreasonable in violation of Article 6 § 1 of the Convention which, insofar as relevant, provides as follows:

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

a) Insofar as the complaint of unfairness of the proceedings concerns the applicant ' s claim for compensation in relation to the period until March 1994 (the above first period), the Court notes that the District Court decided partially in the applicant ' s favour on 9 October 1996. The applicant did not challenge this ruling in his appeal to the Regional Court .

It follows that this complaint must be rejected u nder Article 35 §§ 1 and 4 of the Convention for non ‑ exhaustion of domestic remedies.

b) Insofar as the complaint of unfairness of the proceedings concerns the applicant ' s claim for compensation in relation to the period from March to 16 September 1994 (the above second period), the Court recalls that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see, among other authorities, Garcia Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).

In the determination of the applicant ' s claim in relation to the second period the District Court took complex documentary evidence and hear d the parties and several witnesses . As the discrepancy between the contents of the two versions of the minutes of the court hearing of 20 June 1994 could not be conclusively clarified, the District Court drew no legal conclusions adverse to the applicant from h is statements at that hearing in respect of his future employment with the defendant. After all, t he District Court partially decided in the applicant ' s favour on 18 October 2000 . In its judgment of 26 April 2002 , the Regional Court found the District Court had sufficiently examined the case and correctly established and assessed the facts relevant for the decision. In substance, the Regional Court u pheld the District Court ' s judg ment merely a djust ing the adjudicated amount.

In view of the information before it, and given that it has only limited power to review alleged errors of fact or law committed by national courts, the Court finds no indication that the conclusions reached by them were arbitrary. Furthermore, there is no appearance of unfairness or arbitrariness in the proceedings in question which would infringe the guarantees of a fair trial within the meaning of A rticle 6 § 1 of the Convention.

It follows that , even assuming that the applicant complied in all aspects with the requirement of exhaustion of domestic remedies laid down in Article 35 § 1 of the Convention, the relevant part of the application is manifestly ill-founded and must be rejecte d in accordance with Article 35 §§ 3 and 4 of the Convention.

c ) The Court also notes that, pursuant to the District Court judgment of 24 February 1999 , the applicant ' s claim for compensation in relation to the period after 16 September 1994 (the above third period) has been subject to a separate set of proceedings which are still pending.

T he complaint of the unfairness of these proceedings is therefore premature and must be rejected under Article 35 §§ 1 and 4 of the Convention for non ‑ exhaustion of domestic remedies.

d ) In view of the Constitutional Court ' s finding of 5 December 2003 , the question arises whether the applicant can still claim to be a victim, within the meaning of Article 34 of the Convention, of a violation of his right to a hearing within a reasonable time.

The Court 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 (see Cataldo v. Italy (dec.), no. 45656/99, 3 June 2004 , with further references).

I n the present case the Constitutional Court examined the whole duration of both sets of proceedings which were formally opened in order to deal with the claims that the applicant had made in 1995 . The Constitutional Court found a violation of the applicant ' s right to a hearing without un justified delay and provided for redress of both p reventive and compensatory nature (see Andrášik and O thers , cited above) by ordering the that the District Court proceed with the case without delay and by awarding the applicant just satisfaction in respect of non ‑ pecuniary damage.

T he applicant ' s status as a victim then depends on whether the redress afforded a t domestic level on the basis of the facts about which he complains before the Court (see Andersen v. Denmark , no. 12860/87, and Frederiksen and Others v. Denmark , no. 12719/87, Commission decisions of 3 May 1988 , un reported ; Normann v. Denmark (dec.), no. 44704/98, 14 June 2001; and Jensen and Rasmussen v. Denmark (dec.), no. 52620/99, 20 March 2003) was a dequate and sufficient having regard to just satisfaction as provided for under Article 41 of the Convention.

In his constitutional complaint, the applicant claimed SKK 80,000 in respect of non ‑ pecuniary damage. Making an assessment on equitable basis, the Constitutional Court awarded him SKK 50,000 under that head.

In the light of all the material in its possession including the promptness of the award made by the Constitutional Court and having regard to the margin of appreciation enjoyed by the national authorities, the Court considers that the sum afforded to the applicant cannot be considered unacceptably low having regard t o the Court ' s practice in similar cases (see Cataldo , cited above , Širancová v. Slovakia (dec.), no. 62216/00 , 7 September 2004 an d , a contrario , Scordino v. Italy (dec.), no. 36813/97, 27 March 2003).

The Court therefore concludes that the applicant can no longer claim to be a “ victim ” within the meaning o f Article 34 of the Conve ntion as regards the alleged violation of his right to a hearing within a reasonable time in the period until 5 December 2003 which had been considered by the Constitutional Court .

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

e ) As already noted by t he Court , the proceedings in respect of t h e applicant ' s claim for compensation in relation to the period after 16 September 1994 are still pending. Insofar as h i s compla i nt of the length of the proceedings pertains to these proceedings in the period after the Constitutional Court ' s finding of 5 December 2003 , the Court n otes that the applicant has not raised a complaint to this effect before the Constitutional Court under A rticle 127 of the Constitution.

This complaint must therefore be rejected under Article 35 §§ 1 and 4 of the Convention for non ‑ exhaustion of domestic remedies.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O ' Boyle Nicolas Bratza Registrar President

[1] SKK 80,000 is an equivalent of approximately EUR 2,000

[2] SKK 50,000 is an equivalent of approximately EUR 1,250