FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 48818/99 by Helena MICHALÍKOVÁ 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 introduced on 25 January 1999 and registered on 15 June 1999,

Having regard to the Court’s partial decision of 11 December 2001,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mrs Helena Michalíková , is a Slovakian national, born in 1951 and living in Banská Bystrica , Slovakia. The respondent Government were represented by Mr P. Vršanský , their Agent.

A. The circumstances of the case

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

In 1991 the applicant initiated judicial proceedings before the Banská Bystrica District Court seeking protection of her personality rights.

On 18 July 1994 the action was dismissed. On 24 June 1997 the Regional Court returned the case file to the District Court for a decision on the applicant’s petition for exemption from the obligation to pay court fees. On 18 August 1997 the District Court exempted the applicant from the obligation to pay court fees. Subsequently the case file was mistakenly placed in the District Court’s archive.

On 1 June 2001 the case file was transmitted to the Regional Court for a decision on the applicant’s appeal. On 19 September 2001 the Banská Bystrica Regional Court quashed the District Court’s judgment of 18 July 1994.

The proceedings are pending at first instance.

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 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.

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.

COMPLAINTS

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

2. The applicant alleged a violation of Article 13 of the Convention in that she had no effective remedy at her disposal in respect of her complaint about the length of the proceedings.

THE LAW

1. The applicant complained about the length of the proceedings. She relied on Article 6 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 that the applicant had failed to exhaust domestic remedies as she 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 applicant disagreed and maintained that it was for the Court to decide on her complaint. She argued, in particular, that her application had been introduced prior to the entry into force of the remedy invoked by the Government and that, in view of the overall length of the proceedings complained of, she had lost faith in the Slovakian system of justice.

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 applicant has not shown that she 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.

2. The applicant also complained that she had no effective remedy at her disposal in respect of the excessive length of the proceedings. She invoked Article 13 of the Convention which provides:

“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 Government argued that the applicant had an effective remedy at her disposal, namely a complaint under Article 127 of the Constitution.

The applicant contended that that remedy could not be regarded as effective in the particular circumstances of her case.

The Court has found above that the applicant was required to use the remedy available under Article 127 of the Constitution with a view to complying with the requirements of Article 35 § 1 of the Convention. Since there is a close affinity between the rule on exhaustion of domestic remedies laid down in Article 35 § 1 of the Convention and the guarantee embodied in Article 13 (see Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000-XI), the Court concludes that the remedy under Article 127 of the Constitution should be regarded as effective for the purpose of Article 13 of the Convention in the particular circumstances of the case.

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

For these reasons, the Court unanimously

Declares inadmissible the remainder of the application.

Michael O’Boyle Nicolas Bratza Registrar President