FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40221/98 by Pavol OMASTA 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 M. Pellonpää , Mr A. Pastor Ridruejo , Mrs E. Palm , Mrs V. Strážnická , Mr S. Pavlovschi , Mr L. Garlicki, judges , and Mrs F. Elens-Passos , Deputy Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 9 December 1997,

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 31 August 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 Pavol Omasta, is a Slovakian national, who was born in 1942 and lives in Batizovce . The respondent Government were represented by Mr P. Vršansk ý , their Agent.

A. The circumstances of the case

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

Proceedings concerning the dissolution of joint ownership

In 1980 the applicant’s relatives brought proceedings claiming the distribution of real property which they jointly owned with the applicant.

On 15 May 1987 the Poprad District Court granted the claim. On 9 October 1987 the Koš ice Regional Court upheld the first instance judgment. The decisions became final.

On 25 July 1990 the Supreme Court quashed, upon a complaint introduced by the General Prosecutor, the relevant parts of the above judgments. The Supreme Court established that the lower courts had failed to apply the law correctly and that their decisions were erroneous. The case was sent back to the Poprad District Court on 26 September 1990.

On 5 June 1991 the District Court stayed the proceedings, at the applicant’s request, pending the outcome of a different set of proceedings. The proceedings concerning the preliminary issue ended by the delivery of the Supreme Court’s decision of 15 March 1994.

On 18 May 1994 the Poprad District Court discontinued the proceedings in respect of the other defendants as the plaintiffs had withdrawn their action. It decided to continue proceeding with the case to the extent that the action was directed against the applicant as the latter had not agreed that the proceedings be discontinued. The applicant claimed that the house in question be assigned to the claimants and that the latter should be ordered to pay him compensation for his share. He further claimed that the land in question be distributed among the owners and that his share be assigned to him in natura .

In the course of 1995 the District Court took further evidence with a view to establishing whether the land in question could be split into several plots.

On 8 January 1996 the Poprad District Court dismissed the action. It found that the claimants had lost standing in the case as they had transferred the property in question to other persons in 1993. On 27 February 1997 the applicant appealed. He also challenged the District Court judges. On 22 September 1997 the Ko Å¡ ice Regional Court excluded one of the District Court judges from dealing with the case.

On 23 October 1997 the Koš ice Regional Court quashed the first instance judgment. It expressed the view that the transfer of property to other persons in 1993 was void.

On 5 February 1998 the Regional Court refused to exclude the District Court judge to whom the case fell to be examined.

On 17 April 1998 the Poprad District Court asked the defendants to submit further evidence. A hearing was held on 26 October 1998.

The District Court heard the parties on 9 March 1999 as well as on 13 and 26 April 1999. On 8 June 1999 it appointed an expert who was to submit an opinion within 90 days. The expert failed to do so. On 10 January 2000 the District Court therefore appointed another expert. As the latter had fallen ill, the Poprad District Court appointed a third expert on 25 February 2000. On 18 January 2001 the District Court appointed another expert with a view to obtaining the opinion.

On 31 May 2001 the vice-president of the Pre š ov Regional Court dismissed the applicant’s complaint about delays in the proceedings. The letter stated that the District Court would be urged to ensure that the expert opinion be submitted as soon as possible.

On 29 June 2001 the District Court heard the applicant. On 4 October 2001 it stayed the proceedings. The decision stated that one of the plaintiffs had died on 10 July 2001 and that the proceedings would be resumed after the determination of his estate.

On 6 February 2002 the applicant complained about, inter alia , delays in the proceedings to the Constitutional Court. On 15 February 2002 the latter invited the applicant to eliminate formal shortcomings in his submissions within fifteen days. In particular, the applicant was requested to substantiate the alleged violation of his rights, to inform the Constitutional Court whether he had exhausted other remedies available and to appoint a lawyer representing him in the proceedings. On 14 March 2002 the Constitutional Court rejected the complaint as the applicant had failed to comply with the above request.

Proceedings concerning the enforcement of a debt

On 27 October 1992 the Liptovsk ý Mikuláš District Court granted the applicant’s claim for 210,000 Slovakian korunas which he had lent to an individual. The judgment became final on 30 November 1992. The defendant failed to comply.

On 5 January 1993 the applicant requested the District Court to enforce the judgment by ordering the transfer of the relevant sum from the bank account of the debtor.

In April 1993 two banks informed the court that the debtor had no account with them. On 29 June 1993 the court discontinued the proceedings. The court  noted that it was not in a position to establish in which bank the debtor had an account and that the applicant’s lawyer had failed to co ‑ operate with the court in this respect.

On 15 January 1993 the applicant requested the Liptovský Mikuláš District Court to issue an interim measure ordering the debtor not to dispose of his car. On 3 August 1993 the District Court granted the request. It further ordered the applicant to lodge a claim for enforcement of the debt by selling the car before 15 September 1993.

The applicant made written submissions on 29 September 1993. As their contents was unclear, he was invited to bring them into conformity with the relevant provisions of the Code of Civil Procedure.

On 8 December 1993 the applicant filed a formal request for enforcement of the debt by means of selling the defendant’s car. On 29 December 1994 the Liptovsk ý Mikuláš District Court ordered the enforcement of the debt. A list of the defendant’s property was to be established in that context. The file was transmitted to the enforcement officer on 17 March 1995. On 18 May 1995 the enforcement officer drew up a record stating that the debtor was serving a prison sentence and that he no longer owned the car. On 13 June 1995 the District Court informed the applicant that the debt could not be enforced by selling the debtor’s car. On 20 March 1996 the president of the District Court upheld this position and informed the applicant of the other possibilities of having the sum enforced.

On 26 March 1996 the applicant claimed the enforcement of the debt by the sale of the defendant’s real property. Subsequently the Liptovsk ý Mikuláš District Court repeatedly asked the applicant to eliminate formal shortcomings in his claim. On 21 August 1996 the applicant complied with the court’s request.

On 5 March 1997 the president of the Liptovsk ý Mikuláš District Court admitted that the court had not proceeded with the applicant’s claim for enforcement for six months. She explained that this was due to the heavy workload of the court.

On 27 March 1997 the District Court invited the applicant to pay the costs of the enforcement proceedings, and on 16 April 1997 it ordered the enforcement of the amount due by selling the debtor’s share in the real property. On 9 September 1997 the judge appointed an expert with a view to establishing the value of the property in question.

On 24 March 1998 the judge dismissed the opinion submitted by the expert as it had not been prepared in accordance with the court’s instructions. The expert was instructed to submit a new opinion.

On 9 July 1998 the District Court informed the applicant that the Banská Bystrica Regional Court had brought bankruptcy proceedings against the debtor on 5 March 1998 . The enforcement proceedings brought by the applicant were thereby stayed ex lege pending the outcome of the bankruptcy proceedings . The applicant was informed that he could register his claim in respect of the debtor within 60 days.

On 2 February 1999 the Banská Bystrica Regional Court asked the applicant to substantiate his claim against the debtor in the context of the bankruptcy proceedings. The applicant complied on 5 February 1999. On 8 December 1999 the Banská Bystrica Regional Court informed the applicant that his claim had been registered.

The letter further stated that the Regional Court had lodged a criminal complaint against the debtor for non-compliance with his obligations in the context of the bankruptcy proceedings. The applicant was informed that the proceedings would be resumed after the examination of the complaint by the public prosecutor. On 20 September 2000 the Liptovsk ý Mikuláš convicted the debtor. The latter appealed.

The Bansk á Bystrica Regional Court held a hearing in the bankruptcy proceedings on 26 January 2001. The creditors were invited to submit any comments on the registration and classification of their claims within thirty-one days.

On 6 February 2002 the applicant complained about delays in the enforcement proceedings and the bankruptcy proceedings to the Constitutional Court. On 15 February 2002 the latter invited the applicant to eliminate formal shortcomings in his submissions within fifteen days. In particular, the applicant was requested to substantiate the alleged violation of his rights, to inform the Constitutional Court whether he had exhausted other remedies available and to appoint a lawyer representing him in the proceedings. On 14 March 2002 the Constitutional Court rejected the complaint as the applicant had failed to comply with the request.

B. Relevant domestic law and practice

Constitutional provisions 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.

Article 20 § 1 of the Constitution guarantees to everyone the right to own property and to enjoy its protection on an equal footing with other owners.

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. In particular, Section 56(4) provides that the Constitutional Court may grant adequate financial compensation for non-pecuniary damage to a person whose rights or freedoms have been violated.

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 for non-pecuniary damage in respect of delays which had already occurred.

In its decision no. III ÚS 75/01-91 of 22 August 2002 the Constitutional Court found a violation of the complainant’s constitutional right to access to public functions and granted her 150,000 Slovakian korunas in compensation for non-pecuniary damage. In its decision the Constitutional Court recalled that it could not consider claims for pecuniary damages, such as compensation for lost income in the case at issue, when determining the amount of just satisfaction to be granted under Section 56(4) of the Constitutional Court Act.

The State Liability Act of 1969

Section 18(1) of Act No. 58/1969 on the liability of the State for damage caused by a State organ’s decision or by its erroneous official action ( Z ákon o zodpovednosti za škodu spôsobenú rozhodnutím orgánu štátu alebo jeho nesprávnym úradným postupom - “the State Liability Act”) renders the State liable for damage caused in the context of carrying out functions vested in public authorities which results from erroneous official actions of persons entrusted with the exercise of these functions. A claim for compensation under this provision can be granted when the plaintiff shows that he or she suffered damage as a result of an erroneous action of a public authority,  quantifies its amount, and shows that there is a causal link between the damage and the erroneous action in question.

A claim for damages is to be lodged with the competent central government authority. The latter’s decision on it can be challenged before a court.

In accordance with the courts’ practice, the State Liability Act does not permit granting compensation for damage of non-pecuniary nature with the exception of compensation for damage caused to a person’s health which is governed by Regulation No. 32/1965.

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention that the length of the proceedings concerning his claims has been excessive.

2. Under Article 1 of Protocol No. 1 the applicant complains that he has not been able to peacefully enjoy his property as a result of the excessive length of the proceedings.

3. Finally, the applicant alleges a violation of Article 13 of the Convention in that he has no effective remedy at his disposal.

THE LAW

1. The applicant complains that the proceedings concerning his cases have lasted an unreasonably long time. 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 complaint under Article 127 of the Constitution after the relevant amendment had entered into force on 1 January 2002 and in accordance with the requirements laid down in the Constitutional Court Act.

The applicant maintains that he addressed himself to the Constitutional Court on 6 February 2002 and that the Constitutional Court refused to entertain his complaint. In any event, his application was introduced prior to the enactment of the remedy invoked by the Government. In the applicant’s view, it therefore falls to the Court to decide on it.

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 of that right 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 Constitutional Court was not in a position to examine the merits of applicant’s complaints filed on 6 February 2002 as the applicant had failed to eliminate formal shortcomings in his submissions despite the Constitutional Court’s instruction. Since the applicant’s complaints were rejected for his failure to comply with the statutory requirements, in this respect he has not exhausted domestic remedies as required by Article 35 § 1 of the Convention.

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 further complains that his property rights were violated as a result of the excessive length of the proceedings. He alleges a violation Article 1 of Protocol No. 1 which provides as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

a) The applicant first complains that his property rights were violated in that he has been unable, because of the length of the enforcement proceedings, to recover the sum which was adjudicated to him.

The Government object that it has been open to the applicant to claim damages under the State Liability Act of 1969 and also to seek redress by means of a complaint under Article 127 of the Constitution. As to the merits, the Government maintain that the failure to enforce the sum in question cannot be attributed to the length of the proceedings, but is mainly due to the applicant’s behaviour and to the fact that the debtor is indigent.

The applicant disagrees.

The Court notes that this complaint, similarly as the complaint which the applicant makes under Article 6 § 1 of the Convention, is related to the protracted length of the proceedings. In this respect it sees no reason for departing from its above conclusion that it has been open to the applicant to seek redress before the Constitutional Court by means of a complaint under Article 127 of the Constitution submitted in due form. In particular, the information before the Court indicates that the above remedy extends also to alleged violations of individuals’ rights resulting from erroneous action of the general courts or their failure to act. When a violation of individuals’ fundamental rights and freedoms is found, the Constitutional Court can, if need be, both order the general courts concerned to proceed with the case with due diligence and to grant the complainant adequate financial compensation for non-pecuniary damage resulting from such a violation.

Admittedly, the Constitutional Court lacks power to decide on the applicant’s request for enforcement of the sum in lieu of the general courts or to grant him compensation for pecuniary damage relating to his allegation that it has become impossible to enforce the sum due to the length of the proceedings.

In this respect the Court notes that the enforcement proceedings are still pending, that the applicant’s debtor is an individual, and that a possible failure to enforce the sum because of the debtor’s indigence cannot be held against the respondent State unless and to the extent that it is imputable to the domestic authorities, for example to their errors or delay in proceeding with the enforcement. Even assuming that such was the case, it has been open to the applicant to claim compensation for any pecuniary damage which he suffered in this context pursuant to the State Liability Act of 1969.

The Court has found that even if a single remedy does not by itself entirely satisfy the requirements of effectiveness laid down in Article 13, the aggregate of remedies provided for under domestic law may do so. It has also held that 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 of an effective remedy embodied in Article 13 (see Kudła v. Poland [GC], no. 30210/96, §§ 152 and 157, ECHR 2000-XI, with further references).

In these circumstances, the Court considers it appropriate not to attach decisive importance to the fact that the applicant is required to have recourse to two separate remedies before the national authorities with a view to obtaining a full redress in respect of the present complaint. The applicant should, therefore, have used the above remedies with a view to complying with the requirements laid down in Article 35 § 1 of the Convention.

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

b) To the extent that the applicant may be understood as complaining that the courts failed to dissolve the joint ownership of the real property in question, the Court notes that the proceedings complained of are still pending. His complaint in this respect is therefore premature.

As to the applicant’s complaint that he has been prevented from using the property, the Court notes that the applicant requested neither the other co-owners nor a court to allow him to use the property or, as the case might be, to be granted compensation for the use of the property by other persons (see, mutatis mutandis , Gajd úšek v. Slovakia (dec.), no. 40058/98, 8 March 2001).

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

3. Finally, the applicant complains that he has no effective remedy at his disposal as regards the alleged violation of his Convention rights. He relies on Articles 13 of the Convention which provides as follows:

“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 Court notes, with reference to its above conclusions, that the applicant has had effective remedies at his disposal as regards his complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 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.

For these reasons, the Court unanimously

Declares the remainder of the application inadmissible.

Françoise Elens-Passos Nicolas Bratza Deputy Registrar President