SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38798/97 by Marcela BÁNOŠOVÁ against the Slovak Republic

The European Court of Human Rights ( Second Section ), sitting on 27 April 2000 as a Chamber composed of

Mr C.L. Rozakis, President ,

Mr M. Fischbach,

Mr G. Bonello,

Mrs V. Strážnická,

Mr P. Lorenzen,

Mr A.B. Baka,

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 28 July 1997 and registered on 27 November 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 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 Banská Bystrica .

A. Particular circumstances of the case

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

On 25 October 1989 proceedings were brought before the State Notary’s Office in Banská Bystrica with a view to determining the estate of the applicant’s late father.

In January 1990 an expert opinion was submitted.

In February 1990 the applicant contested another person’s claim for a share in the estate. She further requested that several assets be included in the estate.

On 1 March 1990 the proceedings were adjourned and the applicant was invited to bring separate proceedings with a view to having a preliminary issue determined. The applicant’s action was dismissed by the Banská Bystrica District Court ( Okresný súd - “the District Court“) on 7 February 1991 and on 30 May 1991 the Banská Bystrica Regional Court ( Krajský súd - “the Regional Court“) upheld this decision.

On 7 August 1991 the applicant brought proceedings before the District Court claiming that another person had received a car from her father. On 22 August 1991 the State Notary stayed the proceedings until the determination of this claim. The final decision on this issue was delivered by the Regional Court on 10 March 1992.

On 6 December 1991 the State Notary made an inventory of the movables belonging to the applicant’s father.

On 15 April 1992 the State Notary secured the movables by sealing the flat of the applicant’s father. On 30 May 1992 the other person claiming a share in the estate on the ground that she is the daughter of the applicant’s late father challenged this decision. The complaint was dismissed by the Regional Court on 7 September 1992.

On 21 May 1992 the other participant challenged the State Notary and also a Regional Court judge. The request was dealt with by courts at two levels between 1 June 1992 and 7 September 1992.

On 1 January 1993 the examination of cases concerning estates was transferred to the courts’ jurisdiction.

On 1 February 1993 the District Court authorised a clerk to proceed with the case.

On 13 April 1993 the court’s clerk instructed the applicant to bring separate proceedings with a view to determining whether the other participant had a right to a share in the estate.

On 13 May 1993 the other person claiming a share in the estate challenged both the District Court’s clerk and his decision of 13 April 1993. On 17 November 1993 the District Court dismissed the complaint.

On 14 May 1993 the applicant lodged an action with the District Court and claimed, in accordance with the instruction of the court’s clerk, that the defendant was not entitled to a share in the estate. The defendant lodged a counter-action and claimed the opposite.

On 28 November 1993 the proceedings concerning the estate were stayed pending the outcome of the proceedings brought on 14 May 1993.

On 3 October 1994 the District Court dismissed the applicant’s action on the ground that she had no pressing legal interest in having the issue determined. It further granted the defendant’s counter-claim. The judgment stated that the defendant was under the obligation to bring separate paternity proceedings failing which its judgment could not become effective.

The applicant appealed on 28 December 1994.

On 16 March 1995 the Regional Court upheld the District Court’s decision to dismiss the applicant’s action and dismissed the defendant’s counter-action. The Regional Court found unlawful the instruction of the District Court’s clerk of 13 April 1993. It recalled that under the relevant law the courts were first obliged to determine the factual issues of the case, i.e. whether the defendant was a next of kin in this particular case, and only then decide on questions of law. The judgment became final on 24 May 1995.

On 9 January 1995 and on 17 March 1995 the court’s clerk made several inquiries with a view to establishing the relevant facts.

On 2 and 19 June 1995 the applicant requested the clerk to resume the proceedings concerning the estate.

A hearing scheduled for 28 June 1995 was adjourned as the other party failed to appear.

On 6 November 1995 the applicant refused to recognise as her sister the other person claiming a share in the estate.

On 3 June 1996 the District Court stayed the proceedings concerning the estate and ordered the other person claiming to be a daughter of the applicant’s late father to lodge an action with a view to having this issue determined by a court. The action was lodged on 5 August 1996.

On 21 June 1996 the applicant complained to the president of the Regional Court about delays in the proceedings.

On 24 June 1996 the District Court appointed a representative to the applicant’s  father.

On 1 October 1996 the applicant informed the District Court that she wished to join the affiliation proceedings brought on 5 August 1996. On 17 December 1996 the claimant  in the aforesaid proceedings asked the District Court to proceed with the case. On 25 April 1997 the District Court permitted the applicant to join the affiliation proceedings.

A hearing before the District Court scheduled for 11 July 1997 was adjourned as the applicant’s lawyer was not available.

Another hearing before the District Court was held on 5 December 1997. The lawyer appointed by the District Court to represent the applicant’s father failed to appear. The hearing was adjourned and the applicant was invited to submit further evidence.

On 8 December 1997 the District Court asked the clerk to submit documents included in the case file concerning the estate. The file was submitted on 29 December 1997.

In a letter of 8 September 1998 addressed to the District Court the applicant expressed the view that the issue could only be determined by analysing the DNA of the persons concerned.

On 17 September 1999 the District Court appointed an expert with a view to carrying out the DNA tests.

On 29 September 1999 the expert informed the District Court that he could only proceed with the analyses after the receipt of an advance on the costs.

On 6 October 1999 the representative of the applicant’s father withdrew from the case.

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 unreasonable delay.

Pursuant to Article 130 (3) of the Constitution, the Constitutional Court can commence proceedings upon the petition (“ podnet ”) presented by any individual or a corporation claiming that their rights have been violated.

According to its case-law, the Constitutional Court lacks jurisdiction to draw legal consequences from a violation of a petitioner’s rights under Article 48 (2) of the Constitution. It can neither grant damages to the person concerned nor impose a sanction on the public authority liable for the violation found. In the Constitutional Court’s view, it is therefore for the authority concerned to provide redress to the person concerned.

COMPLAINT

The applicant complains under Article 6 § 1 of the Convention about the length of the  proceedings concerning her father’s estate.

PROCEDURE

The application was introduced on 28 July 1997 and registered on 27 November 1997.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

On 24 August 1999 the Court decided to communicate the applicant’s complaint concerning the length of the proceedings to the respondent Government and to declare the remainder of the application inadmissible.

The Government’s written observations were submitted on 18 November 1999. The applicant replied on 17 January 2000.

THE LAW

The applicant complains about the length of the  proceedings concerning her father’s estate. 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 …              hearing … within a reasonable time …”

The Government contend that the applicant failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention as she failed to lodge a petition to the Constitutional Court pursuant to Article 130 (3) of the Constitution. They refer to several cases in which the Constitutional Court’s finding of a violation of the petitioner’s right to a hearing within a reasonable time resulted in an acceleration of the proceedings before the general courts or administrative authorities. The Government consider it therefore irrelevant that similar Constitutional Court’s findings are of a purely declaratory nature and that the Constitutional Court lacks jurisdiction to provide direct redress to the persons concerned. The Government maintain that the effectiveness of this remedy should be always examined in concreto .

The applicant disagrees.

The Court recalls that the European Commission of Human Rights earlier found that a petition pursuant to Article 130 (3) of the Constitution was not an effective remedy which the applicants should be required to exhaust before introducing their application under the Convention in similar cases (see Eur. Comm. HR, No. 25006/94, Dec. 4.3.97, D.R. 88-A, pp. 34 and 39).

The Court finds no reason for reaching a different conclusion. In particular, it has not been established that the remedy in question is capable of providing a direct protection of the rights guaranteed by Article 6 § 1 of the Convention and that it offers reasonable prospects of success as required by the Court’s case-law (see the Deweer v. Belgium judgment of 27 February 1980, Series A no. 35, pp. 16-17, § 29 and the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1211, § 68).

Accordingly, the application cannot be declared inadmissible for non-exhaustion of domestic remedies.

As to the merits, the Government admit that there were delays in the proceedings imputable to the domestic authorities between 14 May 1993 and 24 May 1995 and also between 8 December 1997 and 17 September 1999. They further contend that the case raises complex issues of both factual and legal nature.

The applicant maintains that her right to a hearing within a reasonable time was not respected.             

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.

For these reasons, the Court, unanimously,

DECLARES ADMISSIBLE , without prejudging the merits of the case, the applicant’s complaint about the length of the proceedings.

Erik Fribergh Christos Rozakis Registrar President