FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 41384/98 by Å tefan VARGA against Slovakia

The European Court of Human Rights (Fourth Section), sitting on 14 May 2002 as a Chamber composed of

Sir Nicolas Bratza , President , Mrs E. Palm , Mr J. Makarczyk , Mrs V. Strážnická , Mr M. Fischbach , Mr J. Casadevall , Mr R. Maruste , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 13 January 1998 and registered on 28 May 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 partial decision of 29 June 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 Štefan Varga, is a Slovakian national, who was born in 1963 and lives in Košice . He was represented before the Court by Mr A. Fuchs, a lawyer practising in Košice. 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 6 July 1990 the police investigator accused the applicant of theft and of breach of domestic privacy. On 7 July 1990 the Košice Public Prosecutor decided to remand the applicant in custody as from 5 July 1990. On 23 July 1990 the Košice Public Prosecutor appointed a lawyer to represent the applicant in the criminal proceedings.

On 4 January 1991 the applicant was indicted for several offences.

On 16 May 1991 the Supreme Court ( Najvyšší súd ) decided that the case was within the jurisdiction of the Košice Regional Court ( Krajský súd).

On 3 July 1991 the Košice Regional Court sent the applicant’s criminal case back to the Public Prosecutor for further investigation. The Regional Court pointed out that, contrary to the law, the applicant had been examined without the assistance of a lawyer on 19 July 1990 and that it could not consider the evidence thus obtained.

On 31 December 1991 the applicant was released from detention on remand.

On 13 April 1992 a new indictment was filed with the Košice City Court ( Mestský súd ). On 27 May 1992 the latter referred the case to the Košice Regional Court for reasons of jurisdiction.

On 10 August 1992 the Košice Regional Court re turned the case to the Public Prosecutor for further investigation.

On 9 February 1993 the Ko šice 1 District Prosecutor filed a new indictment against the applicant to the Ko šice 1 District Court ( Obvodný súd ). On 3 March 1993 the District Court transferred the case to the Ko šice Regional Court for reasons of jurisdiction. On 1 June 1993 the public prosecutor withdrew the indictment.

On 6 May 1994 the Košice 1 District Prosecutor again indicted the applicant before the Ko šice 1 District Court. On 16 May 1994 the prosecutor withdrew the indictment.

On 5 October 1994 the Košice 1 District Prosecutor filed a new indictment with the Koš ice 1 District Court . On 30 June 1995 the latter returned the case to the public prosecutor and ordered further investigation into the case. On 9 November 1995 the Ko š ice Regional Court ordered the District Court to decide on the case on the basis of the indictment filed on 5 October 1994.

On 15 and 22 January 1996 the District Court adjourned the case after it found that the applicant could not attend because he was detained in the context of different proceedings.

Hearings before the District Court were held on 14, 26 and 29 February 1996.

On 29 April 1996 the applicant requested that a different lawyer be appointed to represent him in the proceedings. His request was granted. Further hearings were held on 22 May 1996 and on 10 June 1996.

On 1 July 1996 the case was adjourned as witnesses did not appear.

The court proceeded with the case on 11 and 16 September 1996. On the latter date the District Court delivered a judgment in which it convicted the applicant on sixty-nine counts of theft and attempted theft, of violation of domestic privacy and of damaging other persons’ property.

The Public Prosecutor appealed and claimed that the court should have imposed a consolidated sentence on the applicant.

On 30 September 1997 the Košice Regional Court granted the appeal and imposed a consolidated three years’ prison sentence.

In the meantime, on 5 May 1997, the applicant requested the District Court to restore his savings book which had been taken away from him at the preliminary stage of the proceedings.

On 5 November 1997 the Košice 1 District Court issued a decision, in the context of the above criminal proceedings, by which it seized the savings book from the applicant. On 18 February 1998 the Košice Regional Court dismissed the applicant’s complaint against this decision.

B. Relevant domestic law and practice

State Administration of Courts Act of 1992

According to Section 17 (1) of the State Administration of Courts Act ( Zákon o sídlach a obvodoch súdov Slovenskej republiky, štátnej správe súdov, vybavovaní sťažností a o voľbách prísediacich ) No. 80/1992, any natural person or corporation can turn to State authorities responsible for the administration of courts (the Ministry of Justice, the president and vice-president of the Supreme Court and the presidents and vice-presidents of Regional and District Courts) with complaints in cases of, inter alia , delayed proceedings.

According to Sections 24 - 27, the responsible authority is required to establish all relevant facts and, if necessary, hear the persons concerned. Examination of the complaint is to be terminated within two months and the complainant is to be informed in writing of the conclusion. When the complaint has been dealt with by the president of a District Court, the person concerned can request a review of the conclusion by the president of the appropriate Regional Court.

Section 16 provides that, in cases when the authority in charge of State administration of courts finds that a judge caused delays in proceedings by disrespecting his or her legal obligations, it shall proceed in accordance with the relevant provisions of the Disciplinary Liability of Judges Act ( Zákon o kárnej zodpovednosti sudcov ).

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 only 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.

When examining a petition about delays in domestic proceedings filed by a different person whose case is now pending before the European Court of Human Rights (application No. 51545/99), the Constitutional Court found a violation of the petitioner’s constitutional right to a hearing within a reasonable time. As the Constitutional Court lacked jurisdiction to provide redress to the petitioner, he sought compensation from the Ministry of Justice under Section 18 of the State Liability Act. The Ministry of Justice dismissed the claim and the person concerned therefore filed an action before the Bratislava I District Court.

On 26 May 1999 the Bratislava I District Court dismissed the action (file No. 23 C 7/99-38) on the ground that the plaintiff had failed to show that he had suffered damage and that there was a causal link between any damage and undue delays in the proceedings concerning his case.

The plaintiff appealed and maintained, inter alia , that he had suffered non-pecuniary damage as a result of the court’s failure to proceed with his case during six years. He explained that the court’s inactivity had caused him a trauma, that he had aged and could not rely on judicial protection as a result of which he had become a second-class citizen.

By a decision delivered on 16 November 1999 (file No. 15 Co 383/99-81) the Bratislava Regional Court upheld the first instance judgment. It found that the plaintiff’s claim did not fall under the State Liability Act.

In judgment No. 15 Co 363/2000-82 delivered on 27 March 2001 the Bratislava Regional Court found that neither the State Liability Act of 1969 nor the relevant provisions of the Civil Code allow for the grant of compensation for non-pecuniary damage.

Regulation No. 32/1965

Regulation No. 32/1965, as amended, governs compensation for damage caused to a person’s health. Section 2 provides for compensation for pain. Under paragraph 2 of Section 2, compensation for pain is not payable in cases of simple psychic reactions affecting a person’s health which are of a passing character or for short-term changes in a person’s health which do not require medical treatment or which cannot be established in an objective manner.

COMPLAINTS

The applicant alleges a violation of Article 6 § 1 of the Convention in that the criminal charges against him were not determined within a reasonable time. He further complains under Article 13 of the Convention that he had no effective remedy at his disposal in this respect.

THE LAW

The applicant complains that the length of the criminal proceedings was excessive and that he had no effective remedy at his disposal in this respect. He alleges a violation of Articles 6 § 1 and 13 of the Convention which provide, so far as relevant, as follows:

Article 6 § 1

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

Article 13

“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 Government contend that it was open to the applicant to seek redress by means of a complaint under the State Administration of Courts Act of 1992 and also to lodge a claim for damages under the State Liability Act of 1969. It was further open to the applicant to file an appeal against the Ko š ice 1 District Court’s judgment of 16 September 1995. Those remedies were effective and as the applicant failed to use them he did not, in the Government’s view, comply with the requirement as to the exhaustion of domestic remedies laid down in Article 35 § 1 of the Convention.

As to the merits, the Government admit delays at the preliminary stage of the proceedings resulting from certain shortcomings in the conduct of the investigation into the case. They were also due to the fact that the public prosecutor and the court to which the indictment was filed had different views on the case.

The applicant maintains that a complaint under the State Administration of Courts Act of 1992 is, in practical terms, ineffective as the competent authority can only note that there were delays in the proceedings. However, it can neither give a binding instruction to the judge to remedy such a shortcoming, nor grant just satisfaction to the person concerned.

The applicant further submits, with reference to the domestic courts’ practice, that he could not obtain compensation for non-pecuniary damage resulting from the length of the proceedings by means of an action under the State Liability Act of 1969.

As to the merits, the applicant contends that the length of the proceedings was mainly due to the conduct of the domestic authorities. He submits, in particular, that the indictments were withdrawn or sent back to the public prosecutor for further investigation on several occasions. Furthermore, the appellate proceedings took more than one year.

The Court finds that issues as to the availability of redress or effectiveness of the remedy in question arise under the substantive complaint made by the applicant under Article 13 in conjunction with Article 6 § 1 of the Convention. It considers that the submissions made by the Government concerning non-exhaustion are closely connected with these aspects. They should therefore be joined to the merits of the application and reserved for later consideration.

In the light of the parties’ submissions, the Court considers that the application raises serious issues of fact and law under the Convention the determination of which should depend on an examination of the merits. The Court concludes therefore that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

For these reasons, the Court unanimously

Joins to the merits the question relating to the exhaustion of domestic remedies;

Declares the remainder of the application admissible, without prejudging the merits of the case.

Michael O’Boyle Nicolas Bratza Registrar President