FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 41081/98 by Igor PA Å KA against Slovakia

The European Court of Human Rights (Fourth Section) , sitting on 3 December 2002 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 3 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 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 Igor Pa š ka, is a Slovakian national who was born in 1945 and lives in Zvolen . 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.

1. Proceedings concerning the action of 11 September 1991

On 11 September 1991 the applicant lodged an action for restitution of property, for compensation and for the protection of his good name and reputation with the Bratislava III District Court .

The action was lost and the applicant submitted, at the District Court’s request, a new action on 5 February 1992. He claimed restitution of his property and damages from an individual. The applicant alleged, in particular, that prior to his emigration from Czechoslovakia in 1989, he had deposited his belongings and also documents containing his intellectual property to the defendant, and that the latter refused to restore that property to him.

On 9 March 1992 the judge heard the applicant. Hearings were scheduled for 20 October 1992, 17 November 1992 and 3 December 1992. They were adjourned on each occasion as the court considered it necessary to clarify the position in the case and to take further evidence.

On 27 July 1993 the Bratislava City Court dismissed the applicant’s request for exclusion of the District Court judge.

On 15 December 1994 the District Court allowed another person to join the proceedings as plaintiff and granted the applicant’s request for exemption from the obligation to pay court fees.

On 17 March 1995 the Bratislava City Court dismissed the defendant’s request for exclusion of the Bratislava III District Court judge dealing with the case.

A hearing before the Bratislava III District Court was held on 26 September 1996. Subsequently the case was assigned to another judge.

A hearing before the Bratislava III District Court was scheduled for 31 January 2000. On 14 January 2000 the applicant challenged all judges of the court and requested that the hearing be adjourned. On 14 March 2000 the District Court submitted the request for exclusion of its judges to the Bratislava Regional Court. The latter dismissed the request on 25 May 2000.

On 5 February 2001 the Supreme Court dismissed the plaintiffs’ request for exclusion of the Regional Court judges.

On 19 September 2001 the District Court adjourned the case as the applicant had challenged the judges of that court. On 5 February 2002 the Bratislava Regional Court returned the file to the District Court as the applicant’s request contained no relevant new information.

On 24 April 2002 the Bratislava III District Court adjourned the case as the plaintiffs had challenged the judges of both the Bratislava III District Court and of the Bratislava Regional Court.

The proceedings are pending.

2. Proceedings concerning the action of 27 November 1991

On 27 November 1991 the applicant lodged an action for protection of his good name and reputation and for damages against an individual and against the Bratislava II District Office.

On 27 February 1992 the applicant submitted further information to the Bratislava III District Court which the latter found to be incomprehensible, as in the case of his first submission of 27 November 1991.

Hearings scheduled for 10 August 1992 and 7 September 1992 had to be adjourned as both the applicant and the defendant failed to appear. On 12 and 26 October 1992 the District Court adjourned the case.

On 18 January 1993 the Bratislava III District Court dismissed the action. The applicant appealed.

On 25 June 1993 the Bratislava City Court quashed the judgment and sent the case back to the District Court. The decision stated that the District Court should invite the applicant to specify his claims and decide on the case in the light of the information thus obtained.

On 15 November 1993 the applicant challenged the District Court judge. His request was dismissed by the appellate court on 29 December 1993. In the meantime, on 24 November 1993, the applicant completed his original action.

On 14 June 1994 the first instance court submitted the case file to the Bratislava City Court for a decision on the applicant’s request for exclusion of the judge dealing with the case. On 18 August 1994 the Bratislava City Court sent the case back to the first instance court without taking a decision. It pointed out that the applicant’s submissions did not contain any new facts.

On 16 May 1995 the president of the Bratislava III District Court informed the applicant that the case would be proceeded with after problems arising from the shortage of judges had been resolved.

O n 2 January 1997 the president of Bratislava III District Court assigned the case to himself.

Subsequently the case was assigned to another judge .

On 23 February 2001 the Bratislava Regional Court decided that the Bratislava III District Court judges were not excluded.

By a decision delivered on 31 August 2001 the Bratislava III District Court discontinued the proceedings. The court noted that the applicant’s action concerned the protection of his personality rights. The decision further stated that the first defendant had died in 1997 and that the second defendant, the Bratislava II District Court, was not a legal person and that it therefore lacked standing in the proceedings.

The applicant filed an appeal. The proceedings are pending.

3. Proceedings before the Constitutional Court

On 28 May 1996 the applicant lodged a petition, pursuant to Article 130 (3) of the Constitution, alleging a violation of his right to a hearing without undue delays in the above two sets of proceedings before the Bratislava III District Court. On 23 July 1997 the Constitutional Court declared the petition admissible.

On 28 July 1997 and on 18 September 1997 the Constitutional Court invited the applicant to appoint a lawyer to represent him in the proceedings as required by the Constitutional Court Act.

On 30 September 1997 the applicant requested the Bar Association to assign a lawyer to represent him before the Constitutional Court free of charge. He explained that several lawyers had refused to do so. The applicant informed the Constitutional Court about the difficulties in finding a representative and requested an extension of the time-limit set for appointing a lawyer.

On 30 October 1997 the Constitutional Court discontinued the proceedings on the ground that the applicant was not represented by a lawyer.

On 25 November 1997 the president of the Bar Association asked the applicant to submit a copy of his constitutional petition with a view to examining the request of 30 September 1997.

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 the petition (“ podnet ”) presented by any individual or a corporation claiming that their rights have 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 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.

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.

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.

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 cost, to represent persons in proceedings before it. The decision further states that the Constitutional Court has regularly granted such requests when they are justified by the material and personal situation of the person concerned provided that the other statutory requirements for declaring the case admissible are 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 cost 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 for such a person.

COMPLAINTS

1. The applicant complains about the length of the proceedings concerning his actions and that he has had no effective remedy at his disposal in this respect. He alleges a violation of Articles 6 § 1 and 13 of the Convention.

2. The applicant further alleges a violation of Article 1 of Protocol No. 1 in that the Bratislava III District Court failed to grant his actions.

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, in so far as relevant, provides:

“In 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 contends that the remedy referred to by the Government cannot be regarded as effective. The applicant further submits that, in any event, he cannot use that remedy as he is not in a position to pay the fees of a lawyer representing him before the Constitutional Court as required by the Constitutional Court Act.

The Court has previously 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 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 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. The information available indicates that the proceedings complained of are pending. It has therefore been open to the applicant to have recourse to this remedy.

The Court further notes that since the year 2000 it has been the Constitutional Court’s practice to appoint a lawyer to indigent persons in proceedings before it. 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. The applicant’s objection that he is not in a position to appoint a lawyer representing 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.

2. The applicant complains that he has no effective remedy at his disposal as regards his complaint about the length of the proceedings. He relies on Article 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, with reference to its above finding on the applicant’s complaint under Article 6 and the finding in the case of Andrášik and Others referred to a bove, notes that the applicant has had an effective remedy at his disposal as required by Article 13 of the Convention, namely a complaint under Article 127 of the Constitution as in force since 1 January 2002.

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

3. The applicant further complains that his property rights were violated in that his actions have not been granted. He alleges a violation of 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.”

The Court notes that the proceedings complained of are still pending before the general courts to which it falls to determine, in the first place, whether the applicant’s claims are justified. Accordingly, this part of the application is premature.

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 application inadmissible.

Michael O’Boyle Nicolas Bratza Registrar President