FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 51235/99 by Jozefína WINKLEROVÁ and Others against Slovakia

The European Court of Human Rights (Fourth Section), sitting on 18 March 2003 as a Chamber composed of

Mr M. Pellonpää , President , Mrs E. Palm , Mrs V. Strážnická , Mr M. Fischbach , Mr J. Casadevall , Mr R. Maruste , Mr L. Garlicki , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged on 24 August 1999 and registered on 22 September 1999,

Having regard to the Court’s partial decision of 9 March 2000,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants ,

Having deliberated, decides as follows:

THE FACTS

The applicants are Slovakian nationals. Their particulars are set out in the list attached hereto. They were represented before the Court by Mr V. Hajduk , a lawyer practising in Michalovce . The respondent Government was represented by Mr P. Vr šanský, their Agent.

A. The circumstances of the case

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

On 27 July 1994 the applicants (or their legal predecessors) claimed ownership of real property before the Žilina District. On 8 May 1995 the plaintiffs complied with the District Court’s request to submit their action in accordance with the formal requirements.

On 11 July 1995 a hearing was held before the Žilina District Court.

On 20 March 1996 the plaintiffs asked the president of the District Court to assign the case to another judge. The request was submitted to the Žilina Regional Court which decided, on 28 May 1997, not to disqualify the District Court judge dealing with the case.

On 4 November 1998 the case was transferred to a different chamber of the Žilina District Court.

On 24 November 1998 the judge requested the plaintiffs to submit further information. The plaintiffs replied on 22 December 1998.

On 15 August 1999 the case was assigned to a different chamber of the Žilina District Court. On 27 October 1999 and on 19 November 1999 respectively the defendants were requested to submit further information.

On 19 November 1999 the District Court submitted the case file to the Ministry of Justice. The file was returned on 3 July 2000.

On 31 October 2000 the case was transferred to another chamber of the Žilina District Court.

On 30 October 2001 the District Court discontinued the proceedings on the ground that the plaintiffs had failed to substantiate their claim.

On 28 March 2002 the Žilina Regional Court upheld the District Court’s decision to discontinue the proceedings.

On 11 June 2002 the applicants filed an appeal on points of law. The proceedings are pending before the Supreme Court.

B. Relevant domestic law and practice

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

As 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 the relevant part of which reads as follows:

“1. The Constitutional Court shall decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by the Slovak Republic ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.

2. When the Constitutional Court finds that a complaint is justified, it shall deliver a decision stating that a person’s rights or freedoms set out in paragraph 1 were violated as a result of a final decision, by a particular measure or by means of other interference. It shall quash such a decision, measure or other interference. When the violation found is the result of the failure to act, the Constitutional Court may order that [the authority] which violated such rights or freedoms should take the necessary action. At the same time the Constitutional Court may return the case to the authority concerned for further proceedings, order that such an authority abstain from violating fundamental rights and freedoms ... or, where appropriate, order that those who violated the rights or freedoms set out in paragraph 1 restore the situation existing prior to the violation.

3. In its decision on a complaint the Constitutional Court may grant adequate financial satisfaction to the person whose rights under paragraph 1 were violated.” ...

The implementation of the above constitutional provisions is set out in more detail in Sections 49 - 56 of Act No. 38/1993 (the Constitutional Court Act), as amended with effect from 20 March 2002.

After 20 March 2002 the Constitutional Court delivered a number of decisions in which it found a violation of Article 48 (2) of the Constitution, ordered the general court concerned to avoid any further delays in the proceedings and awarded the successful complainants financial compensation in respect of delays which had already occurred.

COMPLAINT

The applicants complained under Article 6 § 1 of the Convention that their right to a hearing within a reasonable time was violated.

THE LAW

The applicants complained about the length of the proceedings. They relied on 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...”

The Government objected, inter alia , that the applicants failed to exhaust domestic remedies as they did not file a constitutional complaint under Article 127 of the Constitution after the relevant amendment had entered into force on 1 January 2002.

The applicants disagreed and maintained that it was for the Court to decide on their 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 delays and of providing adequate redress for any violation that has already occurred. It has held that the applicants in cases against Slovakia complaining about delays in proceedings which were still pending after 1 January 2002 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 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).

In the present case the proceedings complained of are still pending and the applicants have not shown that they lodged a complaint pursuant to Article 127 of the Constitution with a view to obtaining redress in respect of the alleged delays in the proceedings.

It follows that this complaint must be rejected under Article 3 5 §§ 1 et 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Declares the remainder of the application inadmissible.

Michael O ’Boyle Matti Pellonpää Registrar President

APPENDIX

LIST OF THE APPLICANTS

1. Jozef ína WINKLEROVÁ, born in 1933 and residing in Žilina.

2.              Mária HUSÁKOVÁ, born in 1926 and residing in Bratislava.

3. Anna GYARMÁTHYOVÁ, born in 1952 and residing in Krupina.

4. Jozef JARINA, born in 1958 and residing in Žilina - legal successor to Vincencia JARINOVÁ, one of the original plaintiffs in the above proceedings, who died on 16 February 1998.

5. Helena RUŽIČKOVÁ, born in 1955 and residing in Žilina - legal successor to Vincencia JARINOVÁ, one of the original plaintiffs in the above proceedings, who died on 16 February 1998.