FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 46209/99 by Ján ROŠKO against Slovakia

The European Court of Human Rights (Fourth Section) , sitting on 10 December 2002 as a Chamber composed of

Sir Nicolas Bratza , President , Mr A. Pastor Ridruejo , Mrs E. Palm , Mrs V. Strážnická , Mr M. Fischbach , Mr J. Casadevall , Mr L. Garlicki, judges , and Mrs F. Elens-Passos , Deputy Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 29 October 1998 and registered on 16 February 1999,

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 Court’s partial decision of 17 May 2001,

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 Ján Roško , is a Slovakian national, born in 1950 and living in Klenovec . 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.

On 13 May 1996 the applicant applied to the Social Security Administration for disability benefits.

On 6 August 1996 the Head Office of the Social Security Administration dismissed the request. The applicant challenged this decision.

On 7 November 1996, following a re-examination of the applicant’s health by an expert commission, the Head Office of the Social Security Administration granted disability benefits to the applicant with retroactive effect as from 1 September 1996.

On 12 March 1998 a second instance expert commission found that the applicant was entitled to disability benefits as from 1 January 1992. The applicant therefore sought a judicial review of the decision of the Social Security Administration of 7 November 1996 before the Banská Bystrica Regional Court.

On 7 April 1998 the Regional Court quashed the administrative decision of 7 November 1996 and sent the case back to the Social Security Administration for a new decision on the applicant’s claim.

On 5 January 1999 the Social Security Administration decided to grant disability benefits to the applicant for the period starting on 13 May 1993.

On 8 February 1999 the applicant again sought a judicial review of this decision before the Banská Bystrica Regional Court. He claimed a right to disability benefits as from 1 January 1992.

On 5 May 1999 the Banská Bystrica Regional Court upheld the Social Security Administration’s decision of 5 January 1999. On 17 May 1999 the applicant appealed. On 24 November 1999 the Supreme Court quashed the Regional Court’s judgment.

On 31 May 2000 the Supreme Court excluded two Regional Court judges from dealing with the case. On 13 June 2000 the case was assigned to a different judge.

On 2 November 2000 the Social Security Administration delivered a new decision by which it replaced the above decision of 5 January 1999. The applicant sought a judicial review of this decision.

The applicant failed to appear at court hearings held on 13 June 2000, 25 October 2000 and on 11 April 2001. On the latter date the Regional Court decided to deal with all applicants’ claims concerning disability benefits in a single set of proceedings.

On 22 August 2001 the Bansk á Bystrica Regional Court upheld the administrative decisions challenged by the applicant. The applicant appealed on 24 September 2001.

On 30 April 2002 the Supreme Court upheld the relevant part of the Regional Court’s judgment.

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.

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 were instituted also 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.

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

In its decision no. I. ÚS 61/2000 of 16 November 2000 the Constitutional Court pointed out that it has been its practice to examine thoroughly all requests for a lawyer to be appointed, at State costs, to represent persons in proceedings before it. The decision further states that the Constitutional Court has regularly granted such requests when it was justified by the material and personal situation of the person concerned provided that the other statutory requirements for declaring the case admissible were met.

Subsequently the above position has been confirmed in a number of cases. In deciding on requests for a lawyer to be appointed at the costs of the State the Constitutional Court has regard to the relevant provisions of the Code of Civil Procedure governing the exemption of a party from the obligation to pay court fees and the appointment of a legal representative to such a person.

On 24 October 2000 the Constitutional Court delivered decision no. II ÚS 794/00 by which it dismissed a petition filed by the applicant on the ground that the latter had failed to appoint a lawyer to represent him in the proceedings. In his petition the applicant challenged the law concening the adjustment of pensions and a judicial decision on his claim for social benefits. Prior to the delivery of the decision of 24 October 2000 the Constitutional Court dismissed the applicant’s request for the appointment of a lawyer on the ground that the petition lacked any prospect of success.

COMPLAINT

The applicant complains under Article 6 § 1 of the Convention about the length of the proceedings concerning his request for disability benefits.

THE LAW

The applicant complains about the length of the proceedings concerning his request for disability benefits . He alleges 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 object, inter alia , that the applicant failed to exhaust domestic remedies as he 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 maintains that his application was introduced prior to the enactment of the remedy invoked by the Government and that it therefore falls to the Court to decide on it. He further argues that he cannot, because of his indigence, comply with the statutory requirement that he be represented by a lawyer in the proceedings before the Constitutional Court. The applicant refers to the Constitutional Court’s decision no. II ÚS 794/00 by which his petition was rejected for his failure to appoint a lawyer.

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 ended by the Supreme Court’s judgment of 30 April 2002. The applicant has not shown that he lodged, while the proceedings concerning his claim were still pending, a complaint pursuant to Article 127 of the Constitution with a view to obtaining redress in respect of the alleged delays in the proceedings.

As to the applicant’s argument that he was not in a position to appoint a lawyer as required by the Constitutional Court Act, the Court notes that it has been the Constitutional Court’s practice to appoint a lawyer to indigent persons in proceedings before it provided that their submissions meet the other statutory requirements. It does not appear from the applicant’s submissions that he sought and failed to obtain such free legal assistance from the Constitutional Court after the enactment and entry into force of the new remedy referred to above. In this respect the Court considers irrelevant that the Constitutional Court earlier refused to appoint a lawyer to represent the applicant on the ground that a different petition filed by him in 2000 was devoid of any prospect of success because of the applicant’s failure to comply with the other requirements laid down in the Constitutional Court Act.

The applicant’s objection that he was not in a position to appoint a lawyer to represent him in the proceedings before the Constitutional Court cannot, therefore, be upheld.

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 inadmissible the remainder of the application.

Françoise Elens-Passos Nicolas Bratza Deputy Registrar President