FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 43377/98 by Juraj ŽIAČIK against Slovakia

The European Court of Human Rights, sitting on 8 January 2002 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , 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 introduced with the European Commission of Human Rights on 25 May 1998 and registered on 9 September 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 27 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 Juraj Žiačik, is a Slovakian national , born in 1956 and living in Martin. The respondent Government are 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 20 December 1996 the applicant was accused of an offence on the ground that he was involved in attempted sale of explosives.

On 28 January 1997 the applicant was arrested in the context of the criminal proceedings. On 30 January 1997 a judge ordered his release.

On 3 February 1997 the Minister of the Interior dismissed the applicant from the police. The decision referred to the conclusions reached by the Police Corps Inspection Office according to which the applicant had offered to sell explosives and that on 8 June 1996 he had driven a car in which the police later found 96 kilograms of explosive.

On 26 March 1997 an expert opinion on the applicant’s mental health was submitted to the Žilina Regional Office of Investigation in the context of the criminal proceedings.

On 28 May 1997 the Žilina Regional Prosecutor indicted the applicant of two offences before the Žilina Regional Court ( Krajsk ý súd ) on the ground that he had been involved in an unauthorised transport of explosives.

On 11 June 1997 the case was assigned to another judge as the judge to whom the case originally fell to be examined knew the applicant.

On 25 November 1997 the Regional Court judge requested the Prievidza District Court ( Okresný súd ) to submit decisions concerning one of the accused.

On 16 April 1999 the Regional Court judge returned the case to the public prosecutor for further investigation. The prosecutor appealed on 27 April 1999. On 11 May 1999 the case was submitted to the Supreme Court. On 18 August 1999 the latter quashed the Regional Court’s decision of 16 April 1999 and ordered the first instance court to proceed with the case. The case file was returned to the Regional Court on 11 October 1999.

A hearing scheduled for 12 January 2000 had to be adjourned as one of the accused persons’ lawyers was absent.

The main hearing was held on 17 February 2000, on 10 March 2000, on 16 June 2000 and on 27 July 2000. The case was adjourned as it was necessary to hear further witnesses.

On 13 September 2000 and on 26 October 2000 the case had to be adjourned as witnesses failed to appear.

On 29 November 2000 the Regional Court heard three witnesses. The case was adjourned as the court considered it necessary to hear another witness in respect of whom an arrest warrant had been issued.

On 14 February 2001 the president of the Ži lina Regional Court informed the applicant that the case had not been proceeded with in January 2001 because the presiding judge was ill.

On 10 May 2001 the Žilina District Court acquitted the applicant. The judgment has not yet become final.

B. Relevant domestic law and practice

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.

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 passing character or for short-term changes in a person’s health which do not require a medical treatment or which cannot be established in an objective manner.

COMPLAINTS

The applicant complains under Articles 6 § 1 and 13 of the Convention that the criminal proceedings against him lasted unreasonably long and that he has no effective remedy at his disposal in this respect.

THE LAW

The applicant complains that the criminal proceedings against him lasted unreasonably long and that he has no effective remedy at his disposal. He alleges a violation of Articles 6 § 1 and 13 of the Convention which provide, so far 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 object that the applicant did not exhaust domestic remedies as he failed to lodge a claim for compensation for damage caused by the alleged delays in the proceedings in accordance with the relevant provisions of the State Liability Act of 1969. As to the merits, the Government contend that the length of the case is mainly due to its complexity and to the fact that the case had to be adjourned for objective reasons on several occasions. Transformation of the judiciary during the relevant period and temporary shortage of judges also contributed to the length of the proceedings. The Government admit certain delays during the period between 11 June 1997 and 16 April 1999 but consider that the reasonable time requirement has not been exceeded. The Government further maintain that the applicant has had an effective remedy at his disposal in respect of his complaint about the length of the proceedings as required by Article 13 of the Convention, namely a claim for compensation under the State Liability Act of 1969.

The applicant contends that the Government’s objection as to his failure to exhaust domestic remedies cannot be upheld and that his rights under Articles 6 § 1 and 13 were violated.

The Court notes that the Government argue that the applicant has failed to exhaust domestic remedies by failing to lodge a claim for damages under the State Liability Act of 1969. 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