FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 45126/98 by Pavol LÓŠKA against Slovakia

The European Court of Human Rights (Fourth Section) , sitting on 23 September 2003 as a Chamber composed of

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

Having regard to the above application lodged with the European Commission of Human Rights on 12 August 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the partial decision of 6 September 2001,

Having regard to the observations submitted by the parties,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Pavol Lóška, is a Slovakian national, who was born in 1937 and lives in Michalovce . The respondent Government were represented by their Agent, Mr P. Vršanský, succeeded by Mr P. Kres ák as from 1 April 2003.

A. The circumstances of the case

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

On 28 September 1993 and on 15 March 1994 respectively the Regional Social Security Office in Michalovce ( Region álna národná poisťovňa ) issued two decisions ordering the applicant to pay a total of 12,512 Slovak korunas. The sum included social insurance fees which the applicant had failed to pay and administrative fine. The applicant did not file an appeal against the decisions and they became final on 18 October 1993 and on 6 April 1994 respectively.

On 24 May 1994 the Regional Social Security Office in Michalovce invited the applicant to pay the sum failing which enforcement proceedings would be brought.

On 9 June 1994 the applicant requested the Michalovce District Court to assist the parties in settling the case. He informed the court that he was trying to recover debts in two separate sets of proceedings. The applicant undertook to pay the sum owed to the Regional Social Security Office in Michalovce after the recovery of the debts.

On 14 October 1994 the Regional Social Security Office in Michalovce brought judicial enforcement proceedings against the applicant under the relevant provisions of the Code of Civil Procedure.

On 18 November 1994 the Michalovce District Court ordered the enforcement of the sum due by selling the applicant’s movable property. The proceedings had registration number E 1897/94 and the decision was served on the applicant on 23 September 1996. On 7 October 1996 the applicant appealed against the District Court’s decision of 18 November 1994. He argued that the authority to which the sums were due no longer existed and that the right to claim their enforcement had lapsed.

In the meantime the applicant undertook, in the context of settlement negotiations before the Michalovce District Court, to pay the sum before 31 March 1995. The court adjourned the case and instructed the claimant to inform it whether the sum had been paid. On 4 April 1995 the Michalovce branch office of the Social Security Administration ( Soci álna poisťovňa , one of the successors to the former Národná poisťovňa ) informed the District Court that the applicant had not paid the sum.

On 1 August 1996, the Michalovce branch office of the Social Security Administration requested the Michalovce District Court that the sum due be enforced by an enforcement officer, that is pursuant to Act No. 233/1995 (see „Relevant domestic law“ below). In a letter dated 7 August 1996 and delivered on 12 August 1996 a judge informed the Social Security Administration that the District Court approved of the request as required by Section 232 of Act No. 233/1995.

On 6 February 1997 the Michalovce branch office of the Social Security Administration requested an enforcement officer to enforce the applicant’s debt pursuant to Act No. 233/1995.

On 10 March 1997 the Michalovce District Court authorised the enforcement officer to carry out the enforcement in accordance with Act No. 233/1995.

In a letter dated 24 March 1997 and served on 12 June 1997 the enforcement officer informed the applicant that the sum due would be enforced by selling his movable property which the applicant was prohibited from alienating.

On 13 and 26 June 1997 the applicant filed objections to the enforcement in reply to the enforcement officer’s letter. On 16 September 1997 the applicant submitted, at the District Court’s request, further arguments. He maintained that the District Court had disregarded his proposal to settle the case, that the order of the Regional Social Security Office in Michalovce of 28 September 1993 had become statute-barred, and that it was not clear which of the successors of the Regional Social Security Office was entitled to recover his debt. He alleged a violation of his right to a fair and public hearing within a reasonable time and invoked the proceedings leading to the District Court’s decision of 18 November 1994 and its delayed service.

On 13 February 1998 the Michalovce branch office of the Social Security Administration submitted its observations on the applicant’s objections to the enforcement.

On 28 September 1998 the Michalovce District Court dismissed the applicant’s objections to the enforcement as being manifestly ill-founded. It found no reasons that would prevent the enforcement from being carried out. The District Court decided in camera and its decision had registration number 11 Er 536/97-50.

In a letter dated 22 January 1999 the enforcement officer informed the applicant that his debt would be enforced by the withholding of payments from his old-age pension. An enforcement order was issued to that effect on 13 April 1999.

On 24 March 1999 the Constitutional Court rejected, for lack of jurisdiction, the applicant’s complaint in which the applicant alleged, inter alia , a violation of his right to a fair and public hearing without undue delay in the context of the enforcement proceedings.

On 25 October 2000 the Michalovce District Court dismissed the applicant’s above appeal of 7 October 1996 which it had qualified as a request for the enforcement order of 18 November 1994 to be discontinued. The court found that the Social Security Administration had been established under Act No. 274/1994 from the bodies which had been until then in charge of sickness insurance and social security administration. The right to have the sums in question enforced therefore directly passed over to the Social Security Administration. The decision further stated that the payment orders against the applicant had become final on 18 October 1993 and on 6 April 1994 respectively, and that the claim for their enforcement had been filed on 14 October 1994, that is prior to the expiry of the one-year statutory period.

The District Court further noted that on 7 August 1996 it had approved of the enforcement to be carried out pursuant to Act No. 233/1995. It held that the enforcement proceedings conducted by the enforcement officer pursuant to that Act were to be considered as a continuation of the original proceedings registered under number E 1897/94. It therefore found no reason for the enforcement proceedings to be discontinued.

On 21 and 30 November 2000 the applicant appealed. He complained that the District Court had decided in camera, that it had misinterpreted his appeal of 7 October 1996 and that he had not been served with the document by which the District Court had expressed its consent, on 7 August 1996, to the enforcement to be carried out pursuant to Act No. 233/1995. The applicant expressed the view that, as a result of that consent, the original enforcement proceedings No. E 1897/94 had been discontinued and the relevant claims had become statute-barred.

Finally, the applicant requested that the proceedings be stayed and that the appellate court should seize the Constitutional Court with the question whether the provisions of Slovakian law permitting the enforcement of decisions delivered by non-judicial authorities were in conformity with the Constitution.

By a decision delivered on 31 January 2000 the Michalovce District Court adjourned the enforcement until 31 January 2000. The adjournment was granted at the applicant’s request filed on 22 October 1998. In its decision the District Court noted that the applicant’s flat had been broken into in October 1998.

According to the documents submitted by the applicant, the sum due was enforced by partial payments deduced from his old-age pension between February 1999 and August 2001.

On 18 May 2001 the Michalovce District Court discontinued proceedings concerning the applicant’s request of 9 June 1994 that the case be settled as the parties had failed to reach a friendly settlement.

On 15 October 2001 the Košice Regional Court upheld the District Court’s decision of 25 October 2000. The appellate court established, with reference to the case file, that the Social Security Administration had stated, on 14 January 1997, that it maintained the original proposal for judicial enforcement of the sums notwithstanding that it had also asked for the court’s consent for the enforcement to be carried out by an enforcement officer under Act No. 233/1995. It held that the District Court had correctly qualified the contents of the applicant’s submission and upheld the first instance court’s conclusion that the original enforcement proceedings had not been discontinued and that the claims in question had not become statute-barred. In the reasons for its decision the appellate court stated that proceedings registered under number 11 Er 536/97 “should probably have been discontinued for reasons of lis pendens”. The Regional Court considered irrelevant the applicant’s request that the proceedings should be stayed noting that the provisions of the Code of Civil Procedure permitted the enforcement of the payment orders in question.

The Regional Court decided without having held a public hearing with reference to Article 214 (2) (c) of the Code of Civil Procedure.

B. Relevant domestic law and practice

With effect from 1 January 2002, the Constitution has been amended in that, inter alia , individuals and legal persons can complain about a violation of their fundamental rights and freedoms pursuant to Article 127. Such a remedy is capable of providing redress of both preventive and compensatory nature (for further details see, e.g., Andr ášik and Others v. Slovakia (dec.), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01, 60226/00, 22 October 2002). The text of the above amendment was adopted on 23 February 2001 and published in the Collection of Laws on 17 March 2001.

Prior to the entry into force of the above amendment the Constitutional Court lacked power to provide effective redress to persons complaining of excessive length of proceedings.

The Constitutional Court has held that it can examine complaints about delays in proceedings only when the proceedings complained of were pending at the moment when the constitutional complaint was filed.

Article 214 (2) (c) of the Code of Civil Procedure provides that appellate courts are not required to hold a public hearing when an appeal concerns a decision ( uznesenie ).

Pursuant to Article 325 (1) of the Code of Civil Procedure, the decision to enforce a debt by selling movable property is to be served on the person concerned at the moment when the enforcement is to be carried out. The purpose of this provision is to prevent such persons from hiding or alienating their property prior to the enforcement.

Act No. 233/1995 of 14 September 1995 on Enforcement Officers and Enforcement ( Zákon o súdnych exekútoroch a exekučnej činnosti a o zmene a doplnení ďalších zákonov) entered into force on 1 December 1995.

Section 47 of Act No. 233/1995 provides that an enforcement officer shall notify the parties of enforcement and its costs and invite the debtor to comply with the relevant decision or, as the case may be, to file objections to the enforcement within fourteen days. The enforcement officer shall further prohibit the debtor from alienating property liable to enforcement.

Pursuant to Section 50 (1) of Act No. 233/1995, a debtor may file objections to enforcement within fourteen days from such a notification when, inter alia , the claim to be enforced has ceased to exist.

Section 52 (1) of Act No. 233/1995 provides that after the expiry of the time-limit for lodging objections to enforcement or after a court’s decision dismissing such objections has been served on the enforcement officer the latter shall issue an enforcement order on the basis of which the enforcement is to be carried out.

Under Section 232 of Act No. 233/1995, enforcement of debts ordered by judicial decisions delivered prior to the entry into force of Act No. 233/1995 shall be carried out pursuant to the legal rules which were in force prior to 1 December 1995. However, where not even a part of the creditor’s claim was satisfied in such cases, the persons concerned may request, subject to the approval by a court, that the enforcement be carried out by an enforcement officer in accordance with Act No. 233/1995.

Sections 45 and 46 of Act No. 274/1994 on the Social Security Administration ( Zákon o Sociálnej poisťovni ) provide that the Social Security Administration is established from and takes over the competence of the bodies which were until then charged with sickness insurance and the social security administration including the regional social security offices.

Pursuant to Section 30 (3) of Act No. 7/1993 which governs the financing of health and social insurance, the right to claim the payment of insurance fees shall lapse one year after the decision by which such a payment was ordered became final.

COMPLAINTS

The applicant complained that the proceedings concerning the enforcement of the sums in question had been unfair. In particular, he alleged that the courts dealing with the case had failed to hear him, that they had disregarded his arguments and decided arbitrarily. The applicant also complained that the length of the enforcement proceedings had been excessive. He alleged a violation of Article 6 § 1 of the Convention.

THE LAW

The applicant complained that his right to a fair and public hearing within a reasonable time had been violated in the enforcement proceedings. He relied on Article 6 § 1 of the Convention the relevant parts of which provides:

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

The Court notes that the enforcement proceedings complained of gave rise to new substantive issues, such as the standing of the Social Security Administration to claim the enforcement of the sums the payment of which had been ordered by its predecessor and the question whether or not the right to claim the enforcement had become statute-barred. It therefore considers that Article 6 § 1 of the Convention is applicable (see, mutatis mutandis , Hornsby v. Greece , judgment of 19 March 1997, Reports of Judgments and Decisions 1997-II, p. 510, § 40 and K. v. Sweden , no. 13800/88, Commission decision of 8 April 1991, Decisions and Reports (DR) 71, p. 94).

a) The applicant complained that the enforcement proceedings had been unfair. In particular, he alleged that the courts dealing with the case had disregarded his arguments, had failed to establish the facts of the case and to apply the domestic law correctly and that their decisions were arbitrary.

The Government contended that the courts had decided in accordance with the relevant law and that the reasons for the decisions on the applicant’s case were relevant and sufficient. In their view, the applicant’s arguments submitted to the domestic courts were erroneous and resulted from an incorrect understanding and interpretation of the relevant law. The Government concluded that the applicant’s right to a fair hearing had not been violated.

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 present case both the Michalovce District Court and the Ko šice Regional Court duly examined the applicant ’ objections to the enforcement but found, for reasons expressly set out in their decisions, in particular those of 25 October 2000 and of 15 October 2001 respectively, that those objections were unsubstantiated and that there was no reason for the enforcement to be discontinued. The Court finds no indication that these decisions were arbitrary or that the applicant’s right to a fair hearing was infringed in this context.

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

b) The applicant further complained that his right to a public hearing had been violated in that the courts had delivered all relevant decisions in the enforcement proceedings without having heard the parties.

The Government maintained that the courts’ failure to hear the parties was not contrary to the requirements of Article 6 § 1 of the Convention in the particular circumstances of the case.

The Court recalls that an oral hearing may not be required under Article 6 § 1, inter alia , where a tribunal is only called upon to decide on questions of law of no particular complexity (see Varela Assalino v. Portugal (dec.), no. 64336/01, 25 April 2002).

The proceedings complained of did not concern the merits of the case but exclusively the enforcement of the sums in question. The essential issues which the courts had to determine were questions of law, namely the Social Security Administration’s standing to claim the enforcement and the question whether or not the right to claim the enforcement had lapsed.

The Court does not find on the documents before it that the applicant’s submissions to the Michalovce District Court and the Ko šice Regio nal Court were capable of raising any issues of fact or of law pertaining to the enforcement of his debt which were of such a nature as to require an oral hearing. The absence of a hearing in the proceedings complained of was not, therefore, contrary to Article 6 § 1.

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) The applicant complained about the length of the proceedings.

The Government first objected that the applicant had not exhausted domestic remedies as he had failed to lodge a complaint under Article 127 of the Constitution as in force since 1 January 2002.

The applicant contended that he had sought redress before the Constitutional Court which had rejected his complaint on 24 March 1999.

The documents before the Court indicate that the final decision in the context of the enforcement proceedings complained of was delivered by the Ko š ice Regional Court on 15 October 2001 and that at that time the sums due had already been enforced. Since the amendment introducing the new remedy under Article 127 of the Constitution entered into force on 1 January 2002 and since it has been the Constitutional Court’s practice to entertain complaints about delays in proceedings only where the proceedings complained of were still pending at the moment of the introduction of such complaints, such a remedy cannot be regarded as effective for the purposes of Article 35 § 1 of the Convention in the particular circumstances of the case. Accordingly, the Government’s objection must be dismissed.

As to the merits, the Government maintained that the case was complex and that the applicant had contributed to the length of the proceedings in that he had challenged all decisions delivered in the case and that his submissions had been inaccurate and difficult to understand. They admitted a certain delay in the proceedings which had been caused by the change in the District Court judge dealing with the case. The Government considered, however, that the overall length of the proceedings had not been excessive.

The applicant disagreed and pointed, in particular, to the delayed service of the Michalovce District Court’s decision of 18 November 1994, to the fact that his appeal of 7 October 1996 had been decided upon on 25 October 2000, and to the fact that the appellate court had taken more than ten months to decide on his appeal against the District Court’s decision of 25 October 2000.

The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant’s conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaint concerning the length of the enforcement proceedings ;

Declares inadmissible the remainder of the application.

Michael O’Boyle Nicolas Bratza Registrar President