DISSENTING OPINION OF JUDGE STRÁŽNICKÁ

In my opinion, there has been no violation of the Convention in the present case for the following reasons.

1. The only domestic remedies which Article 35 of the Convention requires to be exhausted are those that are available and sufficient to afford redress for applicants in respect of the breaches alleged. As regards effectiveness, a remedy is considered to be effective when it is capable of remedying directly the situation complained of or can be expected to produce an effective and adequate result.

2. Having regard to recent developments in the legislation and practice of several Contracting States that have incorporated new domestic remedies into their national machinery for human-rights protection, the Court has reconsidered its general rule that exhaustion of domestic remedies is to be assessed with reference to the date when the application was lodged with the Court. The Court has declared inadmissible a large number of applications against Italy raising similar issues (for example, Brusco v. Italy (dec.), no. 69789/01, 6 September 2001, and Giacometti and Others v. Italy (dec.), no. 34939/97, 8 November 2001), and has held in some cases against Croatia (for example, Nogolica v. Croatia (dec.), no. 77784/01, 5 September 2002) that there were special circumstances justifying a departure from that general principle. That approach has also been followed in several cases against Slovakia (for example, Andrášik and Others v. Slovakia , nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01, 60226/00, 22 October 2002), reflecting the Court’s jurisdiction to reject any application which it considers inadmissible under Article 35 of the Convention at any stage of the proceedings.

3. It is well known that an increasing number of applications have been lodged against Slovakia about the excessive length of proceedings and the absence of an effective domestic remedy in the Slovakian legal system. The amendment of Article 127 of the Constitution was adopted on 23 February 2001, was published in the Collection of Laws on 17 March 2001 and entered into force on 1 January 2002. As a result of that amendment a new domestic remedy has been introduced in the Slovakian legal system. The wording of the amended constitutional provisions sets forth the new constitutional complaint as a remedy capable both of preventing the continuation of an alleged violation of the right to have a hearing within a reasonable time and of providing adequate redress for any violation that has already occurred, including just satisfaction.

4. In the instant case the applicant complained about the excessive length of criminal proceedings instituted against him and the absence of a remedy in this respect. He argued that the new domestic remedy had been introduced after the date on which his application had been lodged with the Court.

There are similarities between the present case and the Nogolica case, in which the applicant lodged his application with the Court before the new legislation providing for an effective remedy had entered into force. In its decision on admissibility the Court noted that although the Constitutional Court had not yet adopted any decision following the introduction of the new remedy, the wording of the relevant legislation was sufficiently clear and the applicant was obliged to avail himself of the remedy.

In my view, the applicant in the present case was in the same position. He must have been aware of the existence of the new constitutional remedy as from March 2001, when the amendments were published in the Collection of Laws, although the new remedy at national level, by which the applicant could lodge a constitutional complaint with the Constitutional Court, was open to him for a limited period (from 1 January until 30 January 2002).

According to the clear wording of the amendment, the Constitutional Court is empowered to take a final decision on complaints by natural and legal persons alleging a violation of their fundamental rights and freedoms and, moreover, in cases where the violation was found as a result of a failure to act, to order the authority which violated such rights or freedoms to take the necessary action to prevent the continuation of the alleged breach. There is no doubt that the new remedy provided redress of both a preventive and a compensatory nature with a reasonable prospect of success for the applicant and, as such, was effective from the date of entry into force of the amendment of the Constitution.

5. With reference to the subsidiarity principle whereby individual rights should preferably be protected at national level, and within the meaning of the requirement to exhaust domestic remedies under the Convention, the applicant should first have lodge a constitutional complaint with the Constitutional Court pursuant to the amended Article 127 of the Constitution.

It is my opinion, that the Government’s objection concerning the non ‑ exhaustion of domestic remedies is well-founded and that the applicant had an effective remedy at his disposal as required by Article 13 of the Convention.