SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40345/98

by Dušan STANČIAK

against Slovakia

The European Court of Human Rights (Second Section) sitting on 24 August 1999 as a Chamber composed of

Mr C. Rozakis , President ,

Mr M. Fischbach ,

Mr G. Bonello ,

Mrs V. Strážnická ,

Mr P. Lorenzen ,

Mr A.B. Baka ,

Mr E. Levits , Judges ,

with Mr E. Fribergh , Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 9 February 1998 by Dušan Stančiak against Slovakia and registered on 18 March 1998 under file no. 40345/98;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Slovak national, born in 1953 and living in Nitra .

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

A. Particular circumstances of the case

In 1991 the applicant and his wife divorced. Since then the applicant has not been able to use the property which he jointly owned with his former wife.

The judgment concerning the divorce became final in August 1993. On 23 August 1993 the applicant lodged an action with the Bratislava- vidiek District Court ( Okresný súd ) claiming the separation of the marital property.

Hearings before the Bratislava- vidiek District Court were held on 20 May 1994, on 15 November 1994 and on 11 April 1995.

On 12 April 1995 the District Court appointed an expert with a view to evaluating the movables. The expert opinion was submitted on 19 January 1997.

On 18 March 1997 the applicant challenged the judges of the Bratislava III District Court (formerly Bratislava- vidiek District Court) on the ground that there had been undue delays in the proceedings. He further requested that the case be transferred to another court. As he had received no reply, the applicant reiterated this request to the president of the District Court on 25 June 1997.

On 2 September 1997 the applicant complained to the Supreme Court ( Najvyšší súd ) that he had received no reply to his request and that the District Court had held the last hearing twenty-nine months ago. The Supreme Court transmitted the complaint to the Bratislava III District Court.

On 21 October 1997 the vice-president of the District Court informed the applicant that on 21 March 1997 the District Court judges had been asked to submit their comments on the applicant's request for their exclusion and that the request would be submitted for decision to the Bratislava Regional Court ( Krajský súd ). The vice-president of the District Court apologised to the applicant for the delay.

On 8 January 1998 the applicant complained to the president of the Bratislava Regional Court that his case had not been proceeded with since 1995 and requested that it should be given priority.

On 27 January 1998 the president of the Regional Court informed the applicant that the District Court had not submitted the file concerning the applicant's case to the Regional Court and that the president of the District Court had been asked to inform her about the proceedings.

B. Relevant domestic law and practice

Pursuant to Section 146 of the Civil Code, a court shall determine, at the proposal of one of the spouses, the rights and obligations relating to assets forming community of the marital property. In accordance with the relevant case-law, this provision is applicable also after the wedlock ceased to exist and pending the separation of marital property.

In similar cases the courts may also regulate the relations between the former spouses as regards the marital property to be separated by means of an interim measure pursuant to Section 76 (1) of the Code of Civil Procedure.

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention that the proceedings concerning his action for separation of marital property have lasted unreasonably long and that his right to a fair hearing by an independent and impartial tribunal has not been respected in these proceedings.

The applicant further alleges a violation of Article 1 of Protocol No. 1 in that he has not been able to use his property since 1991.

THE LAW

1. The applicant complains that the proceedings concerning his action for the separation of marital property have lasted unreasonably long and that his right to a fair hearing by an independent and impartial tribunal has not been respected in these proceedings. He alleges a violation of Article 6 § 1 of the Convention which reads, so far as relevant, as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal...”

a) Since the proceedings concerning the applicant's action are still pending, the complaints about their unfairness and about the lack of independence and impartiality of the courts dealing with his case are premature.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

b) As to the complaint about the length of the proceedings, the Court considers that it cannot, on the basis of the file, determine its admissibility. It is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicant further alleges a violation of Article 1 of Protocol No. 1 in that after the divorce he has not been able to use the property which he jointly owned with his former wife.

The documents before the Court do not indicate that the applicant claimed his right to use the property pending its separation before the Slovak courts. In this respect he has not, therefore, exhausted the domestic remedies as required by Article 35 § 1 of the Convention.

It follows that this part of the application must be rejected under Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the applicant's complaint about the length of the proceedings concerning the separation of his marital property;

DECLARES INADMISSIBLE the remainder of the application.

Erik Fribergh Christos Rozakis

Registrar President