FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 41269/98 by Margita PROCHÁZKOVÁ against Slovakia

The European Court of Human Rights (Fourth Section), sitting on 26 November 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 12 January 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,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mrs Margita Procházková, is a Slovakian national, who was born in 1933 and lives in Bratislava . 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 30 December 1991 the applicants’ two sons claimed restitution of real property which had been taken away from the applicant’s mother-in-law. On 20 March 1992 they modified the subject-matter of the action claiming that the property in question was a part of their grandmother’s estate.

On 16 April 1993 the Bratislava II District Court granted the amended action. The defendants appealed.

On 3 December 1993 the Bratislava City Court quashed the first instance judgment and sent the case back to the Bratislava II District Court. The City Court noted, inter alia , that the applicant was entitled by law to a share in her late husband’s estate and instructed the District Court to examine whether she should not be considered as claimant along with her sons.

Four hearings were scheduled in the course of 1994.

On 2 October 1995 and on 20 November 1995 the applicant submitted further documents to the Bratislava II District Court.

On 14 May 1996 the applicant informed the Bratislava II District Court that one of her sons had died on 5 March 1996 and asked the court to proceed with the case.

On 10 October 1996 the applicant requested the District Court that she should be allowed to join the proceedings as claimant.

On 20 February 1997 the applicant urged the District Court to decide on the action, and on 15 May 1997 she introduced another complaint about delays in the proceedings.

On 2 July 1997 the vice-president of the Bratislava II District Court replied that the judge dealing with the case had been ill and that she had resigned at the end of May 1997. The letter further stated that the case had been assigned to another judge in June 1997.

On 9 March 1999 the applicant complained to the Ministry of Justice about the proceedings. The complaint was transmitted to the president of the Bratislava II District Court. On 5 May 1999 the latter informed the applicant that on 4 May 1998 the case had been assigned to another judge and that on 1 March 1999 the judge had requested the municipal archives to submit documentary evidence.

On 13 October 1999 the applicant asked the District Court to proceed with the case.

On 2 October 2000 the Bratislava II District Court allowed the applicant to join the proceedings as claimant.

Since 18 December 2000 the proceedings have been stayed pending the determination of an estate in a different set of proceedings.

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 that date 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.

COMPLAINT

The applicant complains about delays in the proceedings. She alleges, in substance, a violation of Article 6 § 1 of the Convention.

THE LAW

The applicant complains about the length of the proceedings. She relies, in substance, on 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 that the applicant 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 submitted no comments on the Government’s objection.

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 have not yet ended. The applicant has not shown that she 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 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