FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35833/97 by Stanislav BABINSKÝ 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 21 October 1996 and registered on 29 April 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 partial decision of 11 January 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 Stanislav Babinský, is a Slovakian national, who was born in 1939 and lives in Trsten á . 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.

Proceedings concerning the applicant’s action against the Slovakian Film Company and the Slovakian Television

On 25 July 1991 the applicant lodged an action for protection of his reputation with the Bratislava I District Court. He claimed that a film concerning his person produced by the defendant company was defamatory.

On 3 February 1992 the action was transferred to the Bratislava III District Court for reason of jurisdiction. On 9 July 1992 the Bratislava III District Court found that it lacked jurisdiction to deal with the case. On 30 September 1992 the case file was submitted to the Bratislava City Court and on 2 October 1992 the latter instructed the Bratislava III District Court to deal with the case.

On 8 July 1993 the District Court held a hearing. The applicant submitted a document dated 15 June 1993 by which he amended his action and explained that it was directed also against the Slovakian Television. The case was adjourned as the presiding judge considered herself biased.

On 14 October 1993 the Bratislava City Court excluded three District Court judges from dealing with the applicant’s case.

Between 20 December 1993 and 12 July 1997 the District Court  unsuccessfully attempted to obtain from the Bratislava Regional Court the file concerning criminal proceedings against the applicant which had been terminated earlier and which had given rise to the film in question. The file could not be submitted to the District Court as it was needed in the context of examination of the applicant’s request for re-opening of the criminal proceedings.

On 14 September 1995 the president of the Bratislava III District Court transferred the case to a different chamber.

On 10 June 1997 the Bratislava III District Court granted the applicant’s request to extend the action and to consider also the Slovakian Television as a defendant in the case.

On 12 November 1997 the District Court held a hearing.

On 26 November 1997 Štúdio Koliba, a.s. informed the District Court that it was the legal successor to the Slovakian Film Company.

On 12 November 1997 and on 12 March 1998 the applicant submitted to the District Court the judgment delivered in the criminal proceedings against him and also a decision by which his request for re-opening of the criminal proceedings had been dismissed.

On 6 and 20 April 1998 the District Court summoned the applicant’s lawyer to an informative hearing. The lawyer appeared on 30 April 1998.

On 3 December 1998 a judge of the Bratislava III District Court heard the applicant’s lawyer.

On 16 February 2000 the Bratislava III District Court discontinued the proceedings.

On 1 August 2000 the Bratislava Regional Court quashed the first instance decision.

On 4 December 2000 one of the defendants informed the court that a different company owned the rights in respect of the film. On 2 January 2001 the court requested the company concerned to submit a video-tape of the film. On 17 January 2001 a representative of the company informed the court that the company did not possess the film.

On 28 February 2001 the case was adjourned as one of the defendants failed to appear.

Subsequently the applicant requested that the case be transferred to a different court. The Supreme Court’s decision to dismiss this request was served on the applicant’s lawyer on 10 July 2001.

On 1 August 2001 one of the defendant companies informed the court that it had become bankrupt and requested that the proceedings be adjourned.

The District Court held hearings on 6 March 2002 and on 26 April 2002. The case was adjourned until 26 June 2002. The proceedings are pending.

Proceedings concerning the applicant’s action against a publisher

On 25 July 1991 the applicant brought proceedings for protection of his reputation on the ground that a book published by “ Pr áca - vydavateľstvo a nakladateľstvo odborárov na Slovensku ” contained defamatory statements in respect of his person. On 26 August 1991 the applicant paid the court fees.

Subsequently the Bratislava I District Court took several procedural steps with a view to obtaining the relevant documentary evidence.

On 13 February 1992 the judge invited the applicant’s lawyer to specify which statements he considered defamatory. The applicant was further informed that the court could not proceed with the case as the criminal file concerning the applicant’s case, which the District Court deemed necessary to consult, had been sent to the Office of the General Prosecutor of the Czech and Slovak Federal Republic.

On 23 April 1992 the applicant submitted further information to the Bratislava I District Court at the latter’s request.

On 12 May 1992 the Bratislava I District Court suspended the proceedings as the file concerning criminal proceedings against the applicant was still being examined by the Office of the General Prosecutor.

On 25 August 1992 the District Court requested the latter to submit the criminal file to it. On 22 September 1992 the Office of the General Prosecutor replied that a complaint in the interest of the law had been lodged on the applicant’s behalf in the criminal proceedings and that the case file had been submitted to the Supreme Court of the Czech and Slovak Federal Republic.

On 10 September 1993 the president of the Bratislava I District Court assigned the applicant’s case to a different judge. The latter received the case file on 1 August 1995.

On 7 September 1995 the District Court requested the above criminal file. On 14 September 1995 the Bratislava Regional Court replied that the file was about to be sent to the Supreme Court in the context of examination of the applicant’s request for re-opening of the criminal proceedings. Subsequently the District Court reiterated the request several times.

On 18 December 1997 the Bratislava I District Court adjourned the case. On 26 February 1998 the applicant submitted further information at the judge’s request.

A hearing scheduled for 2 March 1998 was adjourned as the defendant could not attend. The applicant requested that the case be transferred to the Dolný Kubín District Court. On 5 August 1998 the Supreme Court dismissed this request.

The parties failed to appear at a hearing scheduled for 24 February 1999.

On 26 April 1999 the District Court adjourned the case as the defendant’s counsel claimed that his client was not a successor to the company against which the applicant had originally lodged his action.

On 14 May 1999 the applicant’s lawyer asked for access to the companies register with a view to establishing the relevant facts concerning the defendant. On 9 September 1999 and on 1 December 1999 the Bratislava I District Court judge requested the relevant file from the companies register.

On 24 October 2000 the applicant requested a change in the defendants.

On 1 December 2000 the case was assigned to a different judge.

On 26 April 2001 the applicant was requested to specify his claims. He replied on 31 May 2001. The proceedings are pending.

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 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.

COMPLAINT

The applicant complains under Article 6 § 1 of the Convention that the proceedings concerning his actions for protection of his good name and reputation have lasted an unreasonably long time.

THE LAW

The applicant complains that the length of the proceedings concerning his cases has been excessive. 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 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 the applicant’s argument is irrelevant and contends that his right to a hearing within a reasonable time was violated.

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 are still pending. 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.

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 remainder of the application inadmissible.

Michael O’Boyle Nicolas Bratza              Registrar              President