FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 49941/06
by Jozef LEŠKO
against Slovakia
The European Court of Human Rights (Fourth Section), sitting on 17 November 2009 as a Chamber composed of:
Nicolas Bratza, President,
Giovanni Bonello,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Ledi Bianku,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 6 December 2006,
Having regard to the observations submitted by the respondent Government,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Jozef Leško, is a Slovak national who was born in 1922 and lives in Soľnička. The Slovakian Government (“the Government”) were represented by their Agent, Mrs M. Pirošíková.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Proceedings concerning the applicant’s pension
On 18 September 1992 the Social Security Administration refused to adjust the applicant’s old-age pension. The decision stated that the applicant had not fulfilled the statutory requirements which would entitle him to the pension’s adjustment according to the Law No. 319/1991 (see "The relevant domestic law" below).
The case was subsequently dealt with by courts at two levels. On 8 April 2005 the Supreme Court upheld the judgment of the Košice Regional Court of 23 September 2004 by which the administrative decision of 18 September 1992 had been upheld. The courts established that the applicant had been abducted to the Union of Soviet Socialist Republics as a captive of the Hungarian army from the present territory of Austria and not as an individual from the territory of Slovakia. These established facts led to the conclusion that the applicant had not been entitled to the adjustment of his old-age pension.
2. Constitutional proceedings
On 6 October 2005 the applicant complained to the Constitutional Court about unfairness and length of the proceedings before the Supreme Court. On 25 October 2006 the Constitutional Court rejected his complaint. The latter observed that the length of proceedings complaint had been submitted belatedly. As far as the alleged unfairness was concerned, the Constitutional Court stated that it was primarily for the ordinary courts to interpret and apply the domestic legislation and that its role was limited to verifying whether the effects of such interpretation are compatible with the Constitution or international conventions on human rights. The Constitutional Court declared this part of the complaint inadmissible as being manifestly-ill founded as the applicant had alleged errors of facts and law committed by ordinary courts.
B. Relevant domestic law
Section 2 of Law No. 319/1991 on Mitigation of Certain Wrongs of Material Nature and on Powers of State Authorities in the Sphere of Extrajudicial Rehabilitation (Zákon o zmiernení niektorých majetkových krívd a o pôsobnosti orgánov štátnej správy Slovenskej republiky v oblasti mimosúdnych rehabilitácií) was intended to give means of redress to individuals who were forcibly abducted to the Union of Soviet Socialist Republics or to the camps established by the Union of Soviet Socialist Republics in other states between 1944 and 1946. The persons concerned (or their heirs) are to be awarded pecuniary compensation for the period of abduction and for death during the period of abduction.
The entitled person is an individual, who was unlawfully and forcibly abducted by the forces of the Ministry of the Interior of the Union of Soviet Socialist Republics to the Union of Soviet Socialist Republics from the present territory of the Slovak Republic, where such person is a citizen of the Czech and Slovak Federative Republic or its successor States, has permanent residence within its territory, originates from the present territory of the Slovak Republic and the descendants of such person live there.
COMPLAINTS
1. The applicant complained under Article 6 § 1 of the Convention that his right to a fair hearing within a reasonable time had been violated in the proceedings concerning his pension.
2. Under Article 13 of the Convention the applicant complained about the lack of an effective remedy.
THE LAW
1. The applicant complained that his right to a fair hearing had been violated in the above proceedings and that the length of the proceedings had been excessive. He relied on Article 6 § 1 of the Convention, the relevant part of which provides:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time ... by [a] ... tribunal ...”
As to the length of the proceedings complaint, the Government objected that the applicant had not exhausted domestic remedies as he had failed to lodge his constitutional complaint in accordance with the applicable procedural requirements. In particular, it was the Constitutional Court’s practice to entertain complaints about delays in proceedings only where such proceedings were pending at the moment when the complaint was lodged.
In so far as the complaint of the alleged unfairness is concerned, the Government argued that the Social Security Administration established that the applicant had not been entitled to a pension adjustment according to the relevant Law. Courts at two levels of jurisdiction came to the conclusion that the administrative decision was to be upheld. The Government were of the opinion that the conclusions of the courts were not arbitrary.
The applicant failed to submit his observations within the time-limit set for that purpose. Nevertheless, the Court has taken them into account.
(a) The Court reiterates that in order to exhaust domestic remedies as required by Article 35 § 1 of the Convention, applicants should use the remedies available in compliance with the formal requirements and time‑limits laid down in domestic law, as interpreted and applied by domestic courts (see Akdivar and Others v. Turkey, 16 September 1996, § 66, Reports of Judgments and Decisions 1996‑IV).
As regards complaints about length of proceedings in Slovakia, the Court had previously noted that it has been the Constitutional Court’s established practice to examine such complaints when the proceedings were pending at the time when the complaint is lodged (Mazurek v. Slovakia (dec.), no. 16970/05, 3 March 2009).
In the present case, the Constitutional Court concluded that the complaint had been lodged out of time. The Court accepts that that decision was in accordance with the Constitutional Court’s practice to examine similar complaints only where the proceedings complained of were pending. There is no indication that the applicant had been prevented for any relevant reason from using the constitutional remedy while the proceedings complained of were pending.
Thus the applicant failed to use the constitutional remedy in accordance with the applicable procedural requirements, as interpreted and applied by the Constitutional Court.
It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
(b) To the extent that the complaint about unfairness of the proceedings is concerned and in the light of all the materials in its possession, the Court observes that the domestic courts have provided sufficient reasons for their legal conclusion and there is no indication of any arbitrariness or unfairness (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).
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.
2. The applicant further complained that he had not had at his disposal any effective remedy, as guaranteed under Article 13 of the Convention which reads as follows:
“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.”
The Government disagreed.
As far as the alleged lack of domestic remedy in respect of the complaint about unfairness of the proceedings is concerned, the Court observes that the applicant had a remedy at his disposal as he could have sought redress before the ordinary courts at two levels and, ultimately, before the Constitutional Court.
Similarly, the applicant had a remedy at his disposal in respect of the alleged delays in the proceedings, namely a constitutional complaint under Article 127 of the Constitution.
In these circumstances, 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.
Lawrence EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy