FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 41375/98 by Michal KOV ÁČ against Slovakia

The European Court of Human Rights (Fourth Section) , sitting on 14 January 2003 as a Chamber composed of

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

Having regard to the above application lodged with the European Commission of Human Rights on 26 February 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 29 June 2000 ,

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 Michal Kováč, is a Slovakian national, who was born in 1951 and lives in Humenné . He was represented by Mr Ľ. Bajužík, a lawyer practising in Humenné. The respondent Government were represented by Mr P. Vršanský, their Agent.

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

Proceedings concerning the applicant’s claim for lost income

On 13 November 1995 the applicant claimed lost income and damages in the context of proceedings concerning the termination of his service as a trade union representative.

On 26 July 1996 the Humenné District Court decided to deal with the claim in a separate set of proceedings.

On 28 February 1997 the applicant withdrew his claim for damages. The proceedings in respect of this claim were discontinued on 7 March 1997. As to the remainder of the applicant’s action, the proceedings were stayed pending the outcome of another set of proceedings in which a preliminary question was to be determined.

On 5 May 1998 the case was assigned to another judge.

On 30 October 1998 the Humenné District Court dismissed the action. On 5 May 1999 the Regional Court quashed the first instance judgment and remitted the case to the District Court.

On 19 January 2001 the proceedings were stayed at the applicant’s request.

On 12 March 2002 the Humenn é District Court discontinued the proceedings. On 20 March and on 9 April 2002 the applicant appealed against this decision. The proceedings are pending.

Proceedings concerning the applicant’s actions for protection of his personality rights

On 8 June 1994 the applicant filed two actions with the Humenné District Court alleging a violation of his right to protection of his good name and reputation in the context of the termination of his services as a trade union representative.

On 23 October 1996 the District Court granted the applicant’s request to extend the action to include two other defendants.

On 27 June 1997 the District Court granted the applicant’s request that his claims be amended. The defendants were requested  to submit comments on the new claims.

On 25 August 2000 the case was assigned to another judge. A hearing before the District Court was scheduled for 14 March 2001. On 13 March 2001 the applicant requested that the proceedings be stayed with the explanation that he had introduced an application under Article 34 of the Convention with the European Court of Human Rights.

The proceedings before the Humenn é District Court have not yet ended.

B. Relevant domestic law and practice

The Constitution and the Constitutional Court Act

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.

Pursuant to Article 130 (3) of the Constitution, as in force until 30 June 2001, the Constitutional Court could commence proceedings upon a petition (“ podnet ”) presented by any individual or corporation claiming that their rights had been violated.

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 have been violated as a result of a final decision, by a particular measure or by means of any other interference. It shall quash such a decision, measure or other interference. When the violation found is the result of a failure to act, the Constitutional Court may order that [the authority] which violated such rights or freedoms shall 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 to that 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 have been 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.

Pursuant to Section 20 (2) of the Constitutional Court Act, a person who wishes to bring proceedings before the Constitutional Court shall submit an authority for the lawyer representing him or her in the proceedings.

The Constitutional Court’s practice

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.

According to an explanatory letter by the president of the Constitutional Court of 6 June 2002, nothing prevents the Constitutional Court from dealing with complaints about length of proceedings in cases in which proceedings have also been instituted before the European Court of Human Rights provided that the domestic proceedings complained of are still pending at the moment when the constitutional complaint is filed.

COMPLAINT

The applicant complained under Article 6 § 1 of the Convention about the length of the proceedings concerning his cases.

THE LAW

The applicant complained about the length of the proceedings. He alleged a violation of Article 6 § 1 of the Convention which provides, so far as relevant, as follows:

“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 applicant had failed to exhaust domestic remedies as he had not filed a constitutional complaint under Article 127 of the Constitution as in force since 1 January 2002.

The applicant contended that he was not required to have recourse to the remedy referred to by the Government as his application had been introduced prior to 1 January 2002.

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 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 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. The applicant has not shown that he lodged a complaint pursuant to Article 127 of the Constitution, as in force since 1 January 2002, with a view to obtaining redress in respect of the alleged delays in the proceedings.

It follows that his 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 Nicolas Bratza Registrar President