FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 41784/98 by A.B. against Slovakia

The European Court of Human Rights (Fourth Section), sitting on 12 March 2002 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr A. Pastor Ridruejo , 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 22 May 1998 and registered on 19 June 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, who expressed the wish that her identity be not disclosed, is a Slovakian national living 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.

In 1983 the applicant was found to be partially disabled. She continued working.

On 2 November 1988 the applicant was obliged to sign an agreement with her employer according to which her contract of employment would expire on 30 June 1989.

On 4 September 1989 the Social Security Commission in Bratislava declared the applicant fully disabled as from 1 July 1989. A full invalidity pension was granted to the applicant.

On 1 October 1990 her former employer rehabilitated the applicant for the persecution to which she had been subjected in the past.

After the entry into force of the Extra-Judicial Rehabilitations Act (see “Relevant domestic law” below) the applicant claimed that her invalidity pension should be increased. She alleged, in particular, that the termination of her contract of employment in 1989 was due to her political persecution within the meaning of Section 21 of the Extra-Judicial Rehabilitations Act.

On 5 April 1993 the Social Security Administration dismissed the applicant’s claim on the ground that she had failed to comply with the requirements set out in Sections 21 and 22 of the Extra-Judicial Rehabilitations Act.

On 21 March 1995 the Bratislava City Court ( Mestský súd ) upheld the decision. The City Court heard the parties and established that the applicant had failed to submit a certificate within the meaning of Section 22 of the Extra-Judicial Rehabilitations Act which was a prerequisite for granting her claim. The City Court noted that separate proceedings concerning this issue were pending before the Bratislava I District Court ( Obvodný súd ). It was further stated in the reasons for the judgment that the representative of the Social Security Administration had promised to adjust the applicant’s pension upon the delivery of such a certificate.

On 26 March 1996 the Bratislava I District Court ordered the successor of the applicant’s former employer to deliver a certificate pursuant to Section 22 (1) of the Extra-Judicial Rehabilitations Act to the applicant. The applicant received the certificate on 14 October 1996.

On 18 October 1996 the applicant again requested the Social Security Administration to adjust her invalidity pension pursuant to the Extra-Judicial Rehabilitations Act. The request was dismissed on 30 October 1996. The decision stated, with reference to Section 24 (6) of the Extra-Judicial Rehabilitations Act, that the applicant’s invalidity pension could not be adjusted as her contract of employment had been terminated in the course of the same year when she had acquired the right to an invalidity pension.

On 18 November 1996 the applicant challenged the decision before the Bratislava City Court. She also requested the City Court to appoint a lawyer to represent her in the proceedings. She referred to Section 30 (1) of the Code of Civil Procedure and explained that her handicap prevented her from coming to the court in person and that she was indigent.

On 23 January 1997 the Bratislava Regional Court ( Krajský súd , the successor to the former City Court) informed the applicant that legal representation was not compulsory in her case and that it was therefore for her to appoint a lawyer if she wished to have one.

On 14 February 1997 the applicant informed the Regional Court that her health did not allow her to attend the hearing scheduled for 25 February 1997 and reiterated her request for a lawyer to be appointed.

On 24 March 1997 the applicant informed the Regional Court that her health did not allow her to appear at the hearing scheduled for 1 April 1997. In the letter the applicant stated that a lawyer should be appointed to represent her and complained that her request to this effect of 18 November 1996 had not been decided upon. She argued that in the proceedings leading to the Bratislava I District Court’s judgment of 26 March 1996 a lawyer had been appointed under Section 30 (2) of the Code of Civil Procedure.

On 1 April 1997 the Bratislava Regional Court upheld the Social Security Administration’s decision of 30 October 1996. The City Court noted that the applicant’s contract of employment had been terminated in the same year when she had been declared fully disabled and concluded that her invalidity pension could not be adjusted pursuant to Section 24 (6) of the Extra-Judicial Rehabilitations Act.

On 24 April 1997 the applicant appealed. She alleged, in particular, that the Regional Court had decided arbitrarily and that it had disregarded the pledge to grant her claim after the delivery of the certificate made by the representative of the Social Security Administration in the proceedings leading to the City Court’s judgment of 21 March 1995.

On 27 November 1997 the applicant requested the Bratislava Regional Court to appoint a representative for her in the appellate proceedings.

On 29 September 1997 the Supreme Court ( Najvyšší súd ) upheld the first instance judgment. The Supreme Court found that the applicant had been granted a full invalidity pension as from 1 July 1989, i.e. the day following the termination of her contract of employment. It therefore considered that the applicant had not suffered any damage which could be compensated pursuant to Section 24 (6) of the Extra-Judicial Rehabilitations Act. The Supreme Court’s chamber deciding on the appeal comprised the judge who had delivered the above Bratislava City Court’s judgment of 21 March 1995.

On 13 November 1997 the applicant complained to the President of the Supreme Court that one of the Supreme Court judges deciding on her appeal had delivered a judgment in the same case at lower instance. She alleged, in particular, that the judge had decided contrary to what she had stated in the judgment delivered on 21 March 1995, namely that her claim would be granted upon the delivery of a certificate pursuant to Section 22 (1) of the Extra-Judicial Rehabilitations Act. On 21 November 1997 the president of the Supreme Court advised the applicant that she could seek redress by means of an appeal on points of law.

On 27 November 1997 the applicant lodged an appeal on points of law. She complained that the appellate court had not held a hearing in the case and that one of its judges had sat in her case at two instances.

On 27 January 1998 a different chamber of the Supreme Court dismissed the applicant’s appeal on points of law. The Supreme Court found that the applicant had been duly summoned to the hearing before the Bratislava Regional Court held on 1 April 1997 and that she had failed to appear without any apology. As to the appellate proceedings, the Supreme Court recalled that Sections 250f and 250s of the Code of Civil Procedure permitted the appellate court to decide on the case without hearing the parties.

The Supreme Court further noted that the applicant had been free to choose a lawyer and to apply for free legal representation. The courts were therefore not obliged to appoint a lawyer ex officio. Finally, the Supreme Court held that the Bratislava City Court’s judgment of 21 March 1995 had been delivered in a different set of proceedings and that there was no reason for excluding the judge who had delivered it from deciding on the applicant’s appeal against the Regional Court’s judgment of 1 April 1997.

B. Relevant domestic law and practice

The Code of Civil Procedure

Section 30 (1) provides that courts may appoint a representative at the request of a party who meets the requirements for waiver of court fees when it is necessary for the protection of the party’s interests. Pursuant to paragraph 2 of Section 30, the president of the court’s chamber shall appoint a lawyer to represent a party in circumstances set out in the first paragraph when the protection of a party’s interests so requires.

Section 250f entitled courts to deliver a judgment without prior oral hearing in simple cases, in particular when there was no doubt that the administrative authority had established the facts correctly and the point at issue was a question of law. In its finding PL .ÚS 14/98 of 22 June 1998 the Constitutional Court found that Section 250f of the Code of Civil Procedure was contrary to the Constitution and also to Article 6 § 1 of the Convention. As a result, this provision ceased to be effective.

Pursuant to Section 250s, in cases concerning social security claims an appeal to the Supreme Court is available against the Regional Court’s decision. The appellate decision may be challenged by means of an appeal on points of law before a different chamber of the Supreme Court. In appellate proceedings and in proceedings on appeal on points of law the Supreme Court is not required to hold a hearing.

The Extra-Judicial Rehabilitations Act

The aim of the Extra-Judicial Rehabilitations Act ( Zákon o mimosúdnych rehabilitáciách , in force of 1 April 1991 ) is to redress certain infringements of property and social rights which occurred between 25 February 1948 and 1 January 1989. The following provisions are relevant in the present case.

Pursuant to Section 21 (1), legal actions terminating a person’s contract of employment for reasons of political persecution or in violation of generally recognised human rights and freedoms are to be considered void.

Section 22 (1) provides that the former employer or its successor shall issue, at the request of the person concerned, a certificate that the latter’s contract of employment was terminated for reasons mentioned in Section 21 (1). Paragraph 3 of Section 22 entitles the person concerned to claim the determination of this issue by a court when the certificate is not issued within three months.

Under Section 24 (1), when the termination of employment is considered void within the meaning of Section 21, the period between the termination of the contract of employment and the date when the person concerned acquired a right to old-age pension or invalidity pension is to be considered as the period of employment for the determination of that person’s social security rights.

Section 24 (6) provides that, when adjusting the pensions of persons covered by Section 24 (1), their average monthly salary is to be determined on the basis of their actual salary in the calendar year preceding the termination of their employment. The general wages increase must thereby be taken into account.

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention that her right to a fair and public hearing by an impartial tribunal was violated in that  ( i ) her claim was not granted despite the pledge made by the representative of the Social Security Administration and mentioned in the Bratislava City Court’s judgment of 21 March 1995, (ii) the judge who had delivered the aforesaid judgment decided on her appeal against the Bratislava Regional Court’s judgment of 1 April 1997 concerning the same case, and (iii) that her requests for a lawyer to be appointed to represent her were not granted.

2. The applicant further alleges a violation of Article 14 of the Convention in that the Extra-Judicial Rehabilitations Act, as interpreted by the courts in her case, does not entitle her to compensation for the termination of her contract of employment.

3. Finally, the applicant complains that she did not have an effective remedy at her disposal as required by Article 13 of the Convention as regards the alleged violations of her rights mentioned above.

THE LAW

1. The applicant complains that her right to a fair and public hearing by an impartial tribunal was not respected in the proceedings concerning her claim under the Extra-Judicial Rehabilitations Act. She 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 fair and public hearing ... by an ... impartial tribunal...”

a) The applicant complains that her right to a fair and public hearing was infringed as a result of the fact that her requests for a lawyer to be appointed to represent her in the proceedings were not granted and that the case was decided upon in her absence.

The Government maintain that the Bratislava Regional Court held a public hearing in the case and that the applicant had not appeared and that she had failed to excuse her absence. The fact that no public hearing was held in the subsequent proceedings is compatible with the requirements of Article 6 § 1 in the particular circumstances of the case.

In the Government’s view, the applicant had no enforceable right to have a lawyer appointed to represent her in the proceedings and it was open to her to appoint a lawyer of her own choice and to claim free legal representation. Furthermore, the applicant had the possibility of submitting all her arguments to the courts. The Government conclude that her right to a fair and public hearing was respected.

The applicant maintains that prior to the hearing before the Bratislava Regional Court she informed the latter that her request for a lawyer to be appointed to represent her had not been decided upon. The applicant could not attend the hearing as her handicap did not allow her to come to the court room. The judge dealing with the case was aware of this fact as she was involved in another set of proceedings concerning the applicant’s disability.

The applicant further submits that she is indigent and that she could not afford to appoint a lawyer to represent her in the proceedings at her expenses. In her view, the Regional Court should have delivered a formal decision on her request for a lawyer to be appointed prior to proceeding with the case. She submits that she met all statutory requirements for the appointment of a lawyer. As the Regional Court failed to decide on the request for a lawyer to be appointed and decided on the merits of the case in her absence, and since she could not obtain redress before the appellate court and the court of cassation which examined the case in camera, the applicant maintains that her right to a fair and public hearing before a tribunal was not respected.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

b) The applicant complains that her claim was dismissed arbitrarily in disregard of the pledge made by the representative of the Social Security Administration and mentioned in the Bratislava City Court’s judgment of 21 March 1995.

The Court considers that the complaint is closely linked to the applicant’s above complaint about the alleged unfairness of the proceedings resulting from the fact that her requests for a lawyer to be appointed to represent her in the proceedings were not granted and that the case was decided upon in her absence. Accordingly, this complaint also raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

c)  The applicant further complains that in the second set of proceedings her case was not examined by an impartial tribunal as the judge who had delivered the Bratislava City Court’s judgment of 21 March 1995 sat in the panel which decided on her appeal against the Bratislava Regional Court’s judgment of 1 April 1997.

The Government submit that the applicant’s claim was examined twice in two different sets of proceedings. In their view, the fact that a judge was involved in both sets of the proceedings does not, as such, permit the conclusion that she was biased.

The applicant disagrees and contends that both sets of proceedings concerned the same subject-matter.

The Court notes that in the first set of proceedings the Bratislava City Court dismissed the applicant’s claim without having decided on its merits as the applicant had failed to comply with one of the statutory requirements, namely to submit a certificate within the meaning of Section 22 of the Extra-Judicial Rehabilitations Act. The applicant later obtained such a certificate and brought another set of proceedings claiming an adjustment of her invalidity pension. The claim was dismissed after an examination of the merits. The legal questions before the courts in the two sets of proceedings were thus distinctly different. Against this background the Court does not find it for established that the judge in question lacked impartiality on account of the fact that she was involved in both sets of proceedings concerning the applicant’s case (see, mutatis mutandis , Nikula v. Finland (dec.), no. 31611/96, 30 November 2000, with further references).

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

2. The applicant further complains that she was discriminated against in that the Extra-Judicial Rehabilitations Act, as interpreted by the courts in her case, does not entitle her to compensation for the termination of her contract of employment. She alleges a violation of Article 14 of the Convention which provides:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Court recalls that Article 14 complements the other substantive provisions of the Convention and that there can be no room for its application unless the facts of the case fall within the ambit of one or more provisions of the Convention ( Inze v. Austria judgment of 28 October 1987, Series A no. 126, p. 17, § 36).

It notes that the right to compensation for damage or wrongs caused prior to the entry into force of the Convention with respect to the Contracting Party concerned is not among the rights and freedoms guaranteed by the Convention or its Protocols. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3. Furthermore, there is no indication that the applicant was discriminated against in the enjoyment of her Convention rights in the context of the proceedings complained of.

It follows that this part of the application must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. The applicant complains that she did not have an effective remedy at her disposal as regards the alleged violations of her rights mentioned above. She invokes 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.”

a) The Court notes that it declared inadmissible the applicant’s complaint under Article 6 § 1 of the Convention concerning the alleged lack of impartiality of a judge as well as the complaint which the applicant makes under Article 14 of the Convention. These complaints cannot, therefore, be regarded as arguable in terms of the Convention (see e.g. Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A no. 131, p. 23, § 52).

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

b) To the extent that the applicant complains that she had no effective remedy at her disposal as regards the alleged violation of her right under Article 6 § 1 of the Convention resulting from the fact that her requests for a lawyer to be appointed to represent her in the proceedings were not granted, that the case was decided upon in her absence and that the dismissal of her action was arbitrary (see point 1 (a) and (b) above), the Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court

unanimously, declares admissible, without prejudging the merits, the applicant’s complaint that her right to a fair and public hearing was violated in that her requests for a lawyer to be appointed to represent her in the proceedings were not granted and that the case was decided upon in her absence, and also the complaint that she had no effective remedy at her disposal in this respect;

by a majority, declares admissible, without prejudging the merits, the applicant’s complaints that her claim was dismissed arbitrarily and that she had no effective remedy at her disposal in this respect;

by a majority, declares inadmissible the applicant’s complaint that her case was not examined by an impartial tribunal;

unanimously, declares inadmissible the remainder of the application.

Michael O’Boyle Nicolas Bratza Registrar President