DISSENTING OPINION OF JUDGE LÓPEZ GUERRA JOINED BY JUDGE GYULUMYAN

In my opinion, the Court should have declared this application inadmissible based on a failure to exhaust all available domestic remedies, pursuant to Article 35 of the Convention.

The effective protection of Convention rights and freedoms depends on the activity of the domestic authorities, which bear the primary responsibility for implementing and enforcing them. Our Court’s role in guaranteeing those rights is, and must necessarily be, subsidiary to the member States’ domestic systems of protection. As a result, it is an absolute prerequisite for applicants to the Strasbourg Court to have previously exhausted all available domestic remedies.

Accordingly, and as stated in Article 13 of the Convention, the national authorities have an obligation to provide the means by which violations of Convention rights and freedoms should be remedied. As set forth in our case-law (and duly cited in paragraph 110 of the present judgment), even if a single remedy does not satisfy this condition, the aggregate of remedies provided for in domestic law may do so. Therefore, to verify the applicants’ compliance with the Article 35 requirement to exhaust all domestic remedies, the Court must first ascertain whether such a system of domestic remedies exists, and whether the applicant exhausted them before coming to Strasbourg.

With respect to the first point, that is, the existence of an effective remedy in respect of undue delays in the proceedings, Article 127 of the Slovakian Constitution provides for a complaint to the Constitutional Court about violations of fundamental rights or freedoms (which include the right to a trial without undue delay). Section 53 of the Slovakian Constitutional Court Act determines that for such a complaint to be entertained by the Constitutional Court, the applicant must first have exhausted the existing legal remedies. And in that regard, sections 62 and 63 of the Slovakian Courts Act specifically provide that complaints about unjustified delays should be brought before and heard by the president of the lower court in question, in order to rectify any shortcomings that may be found.

In view of these provisions, the Slovakian Constitutional Court was correct in ruling that a party must first address his complaint concerning undue delays to the president of the court that is hearing the relevant case, so that the court may rectify any shortcomings; and, if the complaint is not dealt with adequately, the party may then lodge a complaint with the Constitutional Court. In that way, the competent court will have the opportunity to preventively correct the undue delay, while the Constitutional Court’s role is thus limited to acting only as a final guarantee in this preventive system or, if warranted, in a compensatory manner. This prerequisite of complaining to the president of the competent lower court avoids undue recourse to the Constitutional Court, as well as even further delays in the proceedings. Of course for the recourse to the president of the competent court to be effective, that court must be provided with a reasonable time-frame in which to remedy the alleged undue delays. When provided with adequate time, this system does indeed provide an effective remedy in respect of complaints arising from undue delays.

Against the position adopted by the Slovakian Constitutional Court, the present judgment, from which I dissent, does not deem the requisite prior complaint to the president of the competent court to be a remedy that must be exhausted before taking a case to the Constitutional Court, despite its being deemed a remedy in the Slovakian Courts Act. The consequences of the Strasbourg Court’s interpretation are twofold: running counter to Slovakian legislation, it deprives the ordinary courts of the possibility of remedying their own excessive delays by expediting their proceedings, and it imposes a burden on the Constitutional Court to directly decide all cases involving undue delays which the competent courts have been denied the power to examine.

As to whether the applicants did indeed exhaust the existing domestic remedies, the applicants submitted their complaint concerning the excessive length of the proceedings to the President of the District Court on 2 October 2006 and received the President’s response on 27 October, indicating that he had already ordered the competent judge to proceed with the case without further delay. However, on that same day the applicants proceeded to file an additional complaint for undue delays with the Constitutional Court.

It is therefore clear that the applicants did not allow the competent court a reasonable time-frame in which to remedy the alleged delays before taking their case to the Constitutional Court and, as a consequence, the Constitutional Court rightly declared their claim inadmissible. In such circumstances, the applicants’ merely formal complaint to the President of the District Court cannot be deemed to have exhausted the available domestic remedies before their application to this Court.

Moreover, the facts of the case clearly show that the applicants were indeed provided with an effective remedy in respect of the alleged delays since, as a consequence of their complaint to the President of the District Court, the proceedings were expedited and the hearings in their case resumed less than two months after that complaint was filed.