FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 28011/05 by Jozef KUCÍK against Slovakia

The European Court of Human Rights (Fourth Section), sitting on 2 November 2010 as a Committee composed of:

Lech Garlicki , President, Ján Šikuta , Vincent Anthony de Gaetano , judges , and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 21 July 2005,

Having regar d to the comments submitted by the Slovak Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Jozef Kucík , is a Slovak national who was born in 1939 and lives in Tovarné . He is represented before the Court by Mrs I. Rajtáková , a lawyer practising in Košice . The Government of the Slovak Republic (“the Government”) are represented by their Agent, Mrs M. Pirošíková .

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

1. Proceedings concerning the applicant ’ s action of 6 April 1999

On 6 April 1999 the applicant filed an action to the Vranov nad Topľou District Court seeking an order that his neighbours abstain from disturbing him by, for example, cultivating their land, storing vegetable waste and breeding of poultry.

On 8 November 1999 the judge A invited the applicant to submit better particulars of his claim which the applicant did on 29 November 1999.

During the proceedings before the District Court, in 1999, 2000, 2001, 2002, 2003 and in 2004, the applicant challenged individual judges or all judges of the District Court for bias. In two cases individual judges dealing with the case had been excluded for bias. In one case, where the applicant challenged all judges, some of them were excluded. In three cases the applicant ’ s challenge was dismissed.

Between June and December 2000 the judge A scheduled seven hearings . She was however on 29 September 2002 excluded from the case by the court of appeal on grounds of bias . The applicant appeared at one hearing on 25 August 2000. He once failed to show up at one of these hearings without an excuse and requested adjournment of the other hearings based on reasons mainly connected to his state of health .

At the hearing on 18 May 2001 the applicant stated that he wished to modify his claim and he did so on 28 May 2001. On 3 July 2001 the District Court rejected his request and the applicant ’ s appeal against the decision was rejected by the Regional Court as inadmissible .

On 30 October 2002 the applicant lodged a request for exemption from the obligation to pay the court fees and for a legal-aid lawyer which was rejected by the District Court. The decision was quashed on appeal and the matter was remitted to the District Court.

On 7 May 2003 the District Court stayed the proceedings pending the outcome of a different set of proceedings concerning the applicant ’ s legal capacity. On 17 October 2003 the court of appeal quashed that decision and remitted the case to the District Court.

On 5 August 2004 the District Court again decided not to exempt the applicant from the obligation to pay the court fees and dismissed his request for a legal-aid lawyer. The decision was upheld by the Regional Court on 21 December 2004.

In the meantime another judge to whom the case was assigned terminated his service at the District Court.

On 30 December 2005 four judges of the District Court excused themselves from sitting in the case on the ground that the applicant had lodged an action against the District Court for protection of personal integrity. They requested that the case was assigned to another court.

On 19 January 2006 the Regional Court excluded the judges and assigned the case to the Humenné District Court.

Between April 2006 and April 2008 the District Court scheduled seventeen hearings. The applicant and his legal representative took part at one of them. They failed to excuse their absence at one hearing and excused their absence at fourteen hearings.

The District Court scheduled a hearing for 4 June 2009.

On 3 June 2009 the applicant withdrew his action and claimed reimbursement of his costs and expenses.

The proceedings are still pending after the first ‑ instance decision to discontinue the proceedings and to reject the claim for costs had been quashed by the Regional Court .

2. Constitutional proceedings

On 25 November 2004 the Constitutional Court found that the Vranov nad Topľou District Court had not violated the applicant ’ s right to a hearing within a reasonable time. It held that the applicant was responsible for the length of the proceedings in that he had ( i ) failed to pay the court fee, (ii) not appeared at five hearings in 2000, (iii) challenged the District Court judges, (iv) unsuccessfully tried to modify his claim one day before a scheduled hearing and (v) used a remedy which was not available.

COMPLAINT

The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which in the relevant part reads 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 LAW

The Government submitted that in view of the Constitutional Court ’ s judgement, there had been no violation of the applicant ’ s right to a hearing within a reasonable time. They maintained that the duration of the proceedings was a consequence of the applicant ’ s conduct. As to the period following the Constitu t ional Court ’ s judgment, the applicant had failed to raise a fresh length of proceedings complaint which would specifically be directed also against the Humenné District Court. Nevertheless , the courts were active and no significant inactivity occurred. On the contrary, t he applicant and his legal representative had not appeared at the majority of seventeen hearings scheduled by the Humenné District Court.

The applicant disagreed. He pointed out that the Vranov nad Topľou District Court proceeded ineffective ly and that one of the judges to whom the case had been assigned had failed to excuse herself on grounds of bias. He argued that the duration of the pro ceedings of almost six years itself interfered with the applicant ’ s right to a hearing without undue delay.

The Court observes that the “reasonableness” of the length of proceedings must be assessed in accordance with the circumstances of the case and the following criteria: the complexity of the case, the behaviour of the applicant and that of the competent authorities and what was at stake for the applicant in the dispute (see, among many other authorities , Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

Turning to the facts of the present case, the Court notes that the applicant initiated the proceedings on 6 April 1999 by lodging an action with the Vranov nad Topľou District Court for p rotection against nuisance by his neighbours. At the time of the Constitutional Court ’ s judgment the proceedings had lasted five years, seven months and twenty two days at two levels of jurisdiction. The subject matter of the proceedings was not complex.

As regards the conduct of the applicant and that of the courts , the Court observes that on 8 November 1999 the District Court asked the applicant to provide better particulars of his claim. Furthermore, it was due to reasons attributable to the applicant that the majority of hearings scheduled by the Distr ict Court had to be adjourned . In 2001 the applicant appealed against the decision where no appeal lied against it and three years into the proceedings , he requested the exemption from the obligation to pay the court fees. The above circumstances indicate that the applicant failed to proceed actively in seeking judicial protection of his civil rights.

The length of the proceedings had also been significantly influenced by the fact that from 1999 till 2004 the applicant challenged individual judges or all judge s of the District Court six times . The Court accepts that in principle the applicant cannot be blamed for challenging judges of the court to which the case was assigned (see mutatis mutandis Rokhlina v. Russia , no. 54071/00, § 88). However, defending the applicant ’ s rights in an ineffective way and the delays resulting from it cannot be imputable to the courts .

The Court notes that at the Vranov nad Topľou District Court the case had been dealt with by the judge A who was later ex cluded on grounds of bias. It also notes that the decision of the District Court to stay the proceedings pending the outcome of a different set of the proceedings and the decision to dismiss the applicant ’ s request for the exemption from the obligation to pay the court fees had been quashed by the court of appeal and therefore proved to be ineffective and prolonged the proceedings. However, it observes that certain periods of ineffective activity on the part of the courts do not necessarily render the overall duration of the proceedings prior to the Constitutional Court ’ s judgment contrary to the applicant ’ s right under Article 6 § 1 of the Convention (see Markovi č v. Slovakia ( dec .), no. 15286/08, 26 January 2010).

Having regard to all circumstances of the case including to what was at stake for the applicant and the applicant ’ s contribution to the length of the proceedings, the Court concludes that in respect of the period prior the Constitutional Court ’ s judgment the application is manifestly ill-founded.

In view of the above, the Court further considers that in respect of any possible delays in the proceedings subsequent to the Constitutional Court ’ s judgment the applicant was required to have recourse again to a complaint under Article 127 of the Constitution (see Becová v. Slovakia ( dec .), no. 23788/06, 18 September 2007). In respect of the relevant period he has not, therefore, exhausted domestic remedies.

It follows that the applicant ’ s complaint must be rejected in accordance with Article 35 §§ 1, 3 and 4 of the Convention as being manifestly ill ‑ founded and for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Declares the a pplication inadmissible.

Fatoş Aracı Lech Garlicki Deputy Registrar President