SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40058/98 by Štefan GAJDÚŠEK against Slovakia

The European Court of Human Rights (Second Section) , sitting on 8 March 2001 as a Chamber composed of

Mr C.L. Rozakis , President , Mr A.B. Baka , Mr G. Bonello , Mrs V. Strážnická , Mr P. Lorenzen , Mr M. Fischbach , Mr A. Kovler , judges , and Mr E. Fribergh , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 19 February 1998 and registered on 2 March 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 is a Slovak national, born in 1932 and living in Bratislava.

The facts of the case, as submitted by the parties, may be summarised as follows.

In 1988 the applicant and his brother became co-owners of real property which had belonged to their late parents.

On 18 April 1989 the applicant’s brother brought proceedings before the Senica District Court ( Okresný súd ) with a view to having the co-ownership terminated. The claimant requested that the house should be transferred to his exclusive ownership and that the applicant should be compensated. The action stated that the claimant owned three fourths of the property whereas the applicant owned one fourth. Furthermore, the claimant lived in the house in question together with his family. The applicant lived in his own house at a different place.

On 6 April 1990 the Senica District Court granted the action. Upon the applicant’s appeal the Bratislava Regional Court ( Krajský súd ) quashed the first instance judgment and sent the case back to the Senica District Court on 18 June 1990.

In the course of 1991 the District Court held several hearings and obtained a supplementary expert opinion. The judge also inspected the real property in question.

On 30 March 1992 an expert submitted his second supplementary opinion which the District Court had requested on 17 March 1992.

On 28 April 1992 the District Court heard the parties. It ordered the expert to supplement his opinion. The expert complied with the request on 21 May 1992.

On 8 June 1992 the District Court ordered the parties to pay an advance on the fees of the expert. On 12 June 1992 the applicant appealed. For this reason a hearing scheduled for 25 June 1992 was adjourned. On 13 July 1992 the Bratislava Regional Court dismissed the applicant’s appeal.

In the meantime, on 1 July 1992, the applicant complained to the president of the Senica District Court that the judge dealing with the case lacked impartiality.

On 24 November 1992 the District Court decided on the expert’s fees.

On 20 January 1993 the president of the District Court informed the applicant that his request for exclusion of the judge of 1 July 1992 had not been duly registered and invited him to submit its copy. The applicant did so on 4 February 1993.

On 27 January 1993 the District Court adjourned the case pending the decision on the applicant’s request for exclusion of the judge. The Bratislava Regional Court dismissed the request on 18 March 1993. The case-file was returned to the District Court on 26 April 1993.

On 10 June 1993 the applicant’s brother requested the District Court to adjourn the case until 1994 as he had health problems.

On 12 August 1993 the District Court heard the applicant and adjourned the case.

On 27 September 1993 the president of the Senica District Court admitted, in a reply to the applicant’s complaint addressed to the Ministry of Justice, that the proceedings lasted long. The president expressed the view that the delays were mainly due to the claimant’s health problems.

On 16 December 1993 the District Court heard the parties and decided to appoint an expert with a view to evaluating the property.

On 26 April 1994 the applicant complained about the length of the proceedings to the Constitutional Court ( Ústavný súd ). The latter requested the District Court to submit the case-file on 30 May and 21 June 1994. In a letter of 5 October 1994 a judge of the Constitutional Court informed the applicant that, in his view, there had been no excessive delays in the proceedings.

On 28 June 1994 the District Court appointed an expert and invited the parties to pay his fees.

On 12 July 1994 the applicant’s brother challenged the expert.

The District Court unsuccessfully tried to hear the expert on 17 and 24 October 1994. On 8 November 1994 the expert appeared and was heard.

On 17 January 1995 the District Court dismissed the claimant’s request for exclusion of the expert of 12 July 1994. On 2 February 1995 the claimant appealed.

On 3 February 1995 the District Court delivered a decision on the expert’s fees. On 6 and 22 February 1995 the claimant challenged this decision.

On 30 March 1995 the District Court transmitted the case-file to the Bratislava Regional Court. On 29 September 1995 the latter upheld the District Court’s decisions of 17 January and of 3 February 1995. The case file was returned to the District Court on 10 November 1995.

On 5 December 1995 the District Court invited the expert to submit his opinion. On 15 January 1996 the expert informed the court that the task was beyond his competence.

On 30 January 1996 the applicant informed the Senica District Court about his readiness to settle the case.

On 15 February 1996 the District Court appointed another expert.

The claimant did not allow the expert to examine the property on 1 March 1996. The claimant asked the court to postpone the examination as he was ill. On 25 April 1996 a doctor informed the judge that the claimant could not attend an examination of the property and that his health was unlikely to improve.

On 30 May 1996 the president of the Senica District Court dismissed the applicant’s complaints about the length of the proceedings. The applicant was further invited to specify whether he challenged the District Court judges.

On 12 June 1996 the applicant again complained about the length of the proceedings to the president of the Senica District Court. He also requested that the case should be transferred to another court.

On the same day the District Court instructed the expert to examine the property. The claimant was invited to let the expert carry out his job and to be represented by his lawyer on that occasion should he be unable to attend.

On 1 July 1996 the claimant requested that the examination of the property be postponed until 1997 with reference to his health problems.

On 22 July 1996 the expert informed the District Court that he had not been able to examine the property because of the claimant’s disagreement.

On 20 November 1996 the expert returned the file to the District Court. He explained that the claimant had excluded the possibility of having the property examined in the next few months.

On 20 January 1997 the District Court asked the claimant’s lawyer to indicate when the claimant would allow the property to be examined. On 24 February and on 2 May 1997 the judge reiterated the request. On 23 May 1997 the lawyer replied that he was not in a position to indicate when the claimant’s health would improve so that he could attend the examination.

The next hearing was scheduled for 14 January 1998.

On 8 January 1998 the claimant requested the District Court to exempt him from the obligation to pay court fees. On 13 January 1998 the claimant informed the District Court that he had terminated the authority of his lawyer as he was indigent. He requested that the same lawyer be appointed to represent him at the court’s expenses.

On 12 January 1998 the applicant challenged the Senica District Court judges for bias and proposed to transfer the case to another court.

On 14 January 1998 the District Court heard the claimant.

On 27 May 1998 the District Court  transmitted the case-file to the Trnava Regional Court. On 11 June 1998 the latter dismissed the applicant’s request for exclusion of the District Court judges. The case-file was returned to the District Court on 10 July 1998.

On 2 September 1998 the District Court appointed a lawyer to represent the claimant in the proceedings. By another decision of 23 October 1998 the District Court exempted the claimant from the obligation to pay the court fees.

On 6 November 1998 the claimant’s lawyer requested that another lawyer be appointed. On 2 December 1998 the District Court appointed another lawyer to represent the claimant.

On 3 December 1999 the District Court again invited the claimant to indicate when the property could be examined. The claimant was informed that his lawyer could represent him during the examination.

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention that the proceedings before the Senica District Court have lasted unreasonably long.

2. The applicant complains under Article 1 of Protocol No. 1 that he has been prevented from enjoying his possessions as a result of the Senica District Court’s failure to decide on the case.

THE LAW

1. The applicant complains about the length of the proceedings concerning his case. He alleges a violation of Article 6  § 1 of the Convention which, so far as relevant, provides 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 proceedings started on 18 April 1989. However, the relevant period began only on 18 March 1992 when the former Czech and Slovak Federal Republic, to which Slovakia is one of the successor states, ratified the Convention and recognised the right of individual petition pursuant to former Article 25 of the Convention. The proceedings are still pending. The period under consideration has therefore lasted eight years and more than eleven months.

The Government admit that the requirement of “reasonable time” laid down in Article 6 § 1 was not respected in the present case. They maintain that the overall length of the proceeding is partly due also to the behaviour of the parties.

The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant’s conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.

2. The applicant complains that he has been unable to enjoy his possessions as a result of undue delays in the proceedings. He alleges a violation of Article 1 of Protocol No. 1 which provides as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The Government recall that the proceedings complained of were brought by the applicant’s brother and that the applicant is the defendant in these proceedings. The Government also refer to the Court’s partial decision on admissibility in the case of Stančiak ( Stančiak v. Slovakia (dec.) no. 40345/98, 24.8.1999) and conclude that the applicant failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention as he did not seek the protection of his property rights before a general court. The Government further maintain that the real property in question is not possible to divide and that the applicant has not used it since 1964.

The applicant maintains that he has been unable to enjoy his property as a result of the delays in the proceedings.

The Court notes that in the proceedings complained of it has not been contested that the applicant co-owns the property together with his brother. The applicant does not complain that he has not been free, at least in theory, to alienate his share of the property. He requested neither the other co-owner nor a court to allow him to use the property.

The applicant complains, in substance, that he has not been able to benefit from his share of the property because of the length of the proceedings. The Court sees no reason why he could not obtain redress in this respect by claiming compensation for the use of the property from the other co-owner. In these circumstances, the Court accepts the Government’s objection that the applicant failed to exhaust domestic remedies.

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 admissible, without prejudging the merits, the applicant’s complaint that his right to a hearing within a reasonable time was violated ;

Declares inadmissible the remainder of the application.

Erik Fribergh Christos Rozakis              Registrar              President