FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 13071/05
by Jaroslav HAGARA
against Slovakia
The European Court of Human Rights (Fourth Section), sitting on 7 December 2010 as a Committee composed of:
David Thór Björgvinsson, President,
Päivi Hirvelä,
Mihai Poalelungi, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 21 March 2005,
Having regard to the comments submitted by the Government of the Slovak Republic (“Government”) and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Jaroslav Hagara, is a Slovak national who was born in 1945. By a letter of 27 July 2010 the applicant’s legal representative informed the Court that the applicant had died. On 18 October 2010 Mrs Anna Divékyová, the late applicant’s spouse, represented by Mr V. Mikuš, a lawyer practising in Zvolen, informed the Court of her wish to pursue the application in the applicant’s stead.
The Government were represented by their Agent, Mrs M. Pirošíková.
The facts of the case, as submitted by the parties, may be summarised as follows.
In a judgment which became final on 15 March 1996 a married couple was ordered to pay a sum of money to the applicant.
On 18 June 1996 the applicant requested the Žiar nad Hronom District Court to enforce the judgment by selling real property owned by the debtors. The District Court took a series of steps with a view to selling the property. On 22 November 2000 the Žiar nad Hronom District Court found that the property in issue could no longer be sold as a different creditor had acquired it in the meantime in the context of a different set of proceedings.
On 8 January 2001 the applicant claimed compensation from the State represented by the Ministry of Justice under the State Liability Act 1969 on the ground that by its conduct the District Court had thwarted the enforcement of the sum to which he was entitled. The Ministry dismissed the request.
On 8 June 2001 the applicant filed his above mentioned claim with the Žiar nad Hronom District Court. The court dismissed the action on 10 December 2001.
On 27 December 2001 the applicant appealed. At the applicant’s request the Supreme Court transferred the case to the Nitra District Court.
The Nitra District Court received the file on 21 February 2002. It transmitted the file to the court of appeal on 29 May 2002.
On 28 February 2003 the applicant complained to the Constitutional Court of the length of (i) the enforcement proceedings before the Žiar nad Hronom District Court and (ii) the proceedings before both the Nitra District Court and the Žiar nad Hronom District Court concerning his claim for damages.
On 7 May 2003 the Constitutional Court dismissed the complaint. It held that the complaint in respect of the Žiar nad Hronom District Court had been filed belatedly as that court had stopped dealing with both the applicant’s request for enforcement and his claim for damages more than two months before the applicant had lodged his complaint with the Constitutional Court. As regards the conduct of the Nitra District Court, it had received the file on 21 February 2002 and had transferred it to the court of appeal on 29 May 2002. There was no appearance of a violation of the applicant’s right to a hearing without unjustified delay in that respect.
In the meantime, on 10 April 2003, the Nitra Regional Court upheld the first-instance judgment of 10 December 2001. The applicant filed an appeal on points of law.
On 27 November 2003 the Supreme Court quashed the Regional Court’s judgment. On 31 May 2004 the Regional Court quashed the first‑instance judgment of 10 December 2001 and remitted the case to the District Court for a new determination.
The Nitra District Court dismissed the applicant’s claim. On 28 June 2007 the Nitra Regional Court upheld the first-instance judgment following the applicant’s appeal.
On 25 March 2009 the Supreme Court rejected the applicant’s appeal on points of law.
COMPLAINTS
1. The applicant complained under Article 6 § 1 of the Convention that his right to a hearing within a reasonable time was violated both in the enforcement proceedings and in the proceedings related to his claim for damages.
2. Under Article 13 of the Convention the applicant complained that he had had no effective remedy at his disposal as regards his above complaints under Article 6 § 1.
3. Finally, the applicant complained that the facts of his case had amounted also to a violation of Article 17 of the Convention.
THE LAW
1. The applicant complained that his right to a fair hearing within a reasonable time had been violated both in the enforcement proceedings and in the proceedings related to his claim for compensation. He relied on Article 6 § 1 of the Convention which in its relevant part provides:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
As regards the length of the enforcement proceedings the Court notes that they were terminated by the decision of the Žiar nad Hronom District Court of 22 November 2000 since the property in issue could no longer be sold. The Court further notes that the applicant lodged his length‑of‑proceedings constitutional complaint related to the enforcement proceedings on 28 February 2003, that is more than two years and three months after the proceedings had ended and the Constitutional Court rejected it as belated.
The Court finds no reasons to depart from the Constitutional Court’s conclusion. It follows that this complaint must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies.
Concerning the applicant’s complaint of the length of the proceedings on his claim for damages the Government argued that the applicant’s constitutional complaint related to the length of the proceedings before the Žiar nad Hronom District Court had been lodged out of time since at the time of lodging the complaint the District Court had no longer dealt with the case. The Government further referred to the Constitutional Court’s conclusions that the length of the proceedings before the Nitra District Court was not unreasonable. Furthermore the applicant failed to complain of the length of the proceedings pending before the Supreme Court and the Nitra Regional Court and thus had not allowed the Constitutional Court to examine their overall length. Finally, they argued that the applicant was obliged to lodge a fresh constitutional had he believed that any delays had occurred before the District Court after the Constitutional Court’s decision.
The applicant disagreed.
The Court notes that on 8 June 2001 the applicant initiated proceedings before the Žiar nad Hronom District Court. On 29 May 2002 the Nitra District Court to which the case was later assigned transmitted the case to the Nitra Regional Court following the applicant’s appeal against the first‑instance decision.
The Court further notes that the applicant directed his constitutional complaint of 28 February 2003 against the Žiar nad Hronom District Court and the Nitra District Court. The Constitutional Court excluded from its examination the period pending before the Žiar nad Hronom District Court holding that as from 21 February 2002 the case had been dealt with by the Nitra District Court. It held that it could not be concluded that any unreasonable delays had occurred before the Nitra District Court since on 29 May 2002 the District Court transmitted the case to the Nitra Regional Court.
As regards applications against Slovakia concerning the length of proceedings the Court reiterates that a complaint under Article 127 of the Constitution is an effective remedy which applicants are required to use for the purpose of Article 35 (see Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01, 60226/00, 22 October 2002).
Without evaluating the Constitutional Court’s decision to dismiss a part of the applicant’s constitutional complaint for non-exhaustion of domestic remedies, the Court observes that the proceedings at the time of the Constitutional Court’s decision had lasted one year and eleven months at two levels of jurisdiction with one procedural issue decided by the Supreme Court. Having regard to its case-law, the Court considers that under the circumstance of the present case the above length of proceedings was not contrary to the requirements laid down in Article 6 § 1 of the Convention.
The Court reiterates that in certain situations applicants who have already sought redress before the competent domestic authority in respect of their complaint under Article 6 § 1 about excessive length of proceedings may be required to have recourse again to that remedy irrespective of whether or not they have filed an application under Article 34 of the Convention in the meantime. Such is the case, for example, when an applicant considers excessively long the period which lapsed after the first finding of the competent domestic authority (see, mutatis mutandis, Musci v. Italy [GC], no. 64699/01, § 141, ECHR 2006-V (extracts) and, in particular, when the first decision of the domestic authority is consistent with the Convention principles (see Sukobljević v. Croatia, no. 5129/03, § 45, 2 November 2006, Becová v. Slovakia (dec.), no. 23788/06, 18 September 2007).
Turning to the facts of the present case in the light of the above, the Court considers that the applicant should have again sought redress before the Constitutional Court as regards his allegation that further delays had occurred in the proceedings.
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.
2. The applicant further complained that he had no effective remedy at his disposal as regards his above complaints under Article 6 § 1 of the Convention. He relied on Article 13 of the Convention which provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
According to the Court’s case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52).
The Court has found above that the applicant’s complaints under Article 6 § 1 of the Convention were inadmissible as being manifestly ill‑founded and for non‑exhaustion of domestic remedies. For similar reasons, the applicant did not have an “arguable claim” and Article 13 is therefore inapplicable to his case. This part of the application is also manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.
3. Finally, the applicant complained that the facts of his case amounted also to a violation of Article 17 of the Convention which reads as follows:
“Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”
However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Fatoş AracıDavid Thór Björgvinsson
Deputy RegistrarPresident
Full & Egal Universal Law Academy