INDROVA and INDRA v. SLOVAKIA

FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 46845/99
by Vanda INDROVÁ and Zdeněk INDRA
against Slovakia

The European Court of Human Rights (Fourth Section), sitting on 11 May 2004 as a Chamber composed of

SirNicolas Bratza, President,

MrM. Pellonpää,

MrsV. Strážnická,

MrJ. Casadevall,

MrR. Maruste,

MrL. Garlicki,

MrsE. Fura-Sandström, judges,

and Mr M. O'Boyle, Section Registrar,

Having regard to the above application lodged with the European Commission of Human Rights on 14 February 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants are a married couple, living in Bratislava. The first applicant, Mrs Vanda Indrová, is a Slovakian national and was born in 1935. The second applicant, Mr Zdeněk Indra, is a Czech national and was born in 1935. The respondent Government were represented by their Agent, Mr P. Vršanský, succeeded by Mr P. Kresák in that function as from 1 April 2003.

A.  The circumstances of the case

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

1.  Proceedings on the second applicant's dismissal from work

In 1982 the second applicant was dismissed from his job for unauthorised absence from his work for several days. On 18 June 1984 the Bratislava III District Court (then Obvodný súd, at present Okresný súd) rejected the second applicant's request for a judicial ruling declaring his dismissal null and void. The second applicant's appeal against this decision was rejected, on 19 November 1985, by a three-judge Chamber of the Bratislava City Court (then Mestský súd, at present Krajský súd). The Chamber deciding on the appeal included judges S. and K.

2.  Other proceedings prior to 18 March 1992

In the 1970s and 1980s the applicants were involved in numerous other civil and criminal proceedings, including proceedings resulting in a restriction of the second applicant's legal capacity to act. All those proceedings ended before 18 March 1992 when the Convention entered into force in respect to the former Czech and Slovak Federal Republic, to which Slovakia is one of the successor states.

3.  Proceedings on the second applicant's rehabilitation

On 12 February 1993 the applicants took civil proceedings against the legal successor of the second applicant's former employer before the Bratislava I District Court. They sought the second applicant's rehabilitation under Act No. 87/1991 on Extra-Judicial Rehabilitations (Zákon o mimosúdnych rehabilitáciách - the “87/91 Act”) in respect of his dismissal in 1982.

In a judgment of 27 September 1994, following a hearing held on the same day, a single judge of the Bratislava I District Court considered that the applicants' action aimed at obtaining a judicial order to the defendant to issue a formal confirmation that the second applicant had been dismissed in 1982 for politically motivated reasons and in violation of fundamental human rights and freedoms within the meaning of Section 21 (1) of the 87/91 Act. The court rejected the applicants' action for being unsubstantiated.

On 6 December 1994 the applicants appealed to the Bratislava City Court and, on 10 January 1995, supplemented their appeal. They argued that the District Court had misinterpreted their action in that it had not been aimed at obtaining a judicial order against the defendant, but at obtaining a declaratory judgment to the effect that the second applicant's dismissal had been based on the grounds referred to in Section 21 (1) of the 87/91 Act. They further complained that the District Court had overlooked the fact that the action had also been brought by the first applicant.

The applicants also challenged the impartiality of the single judge of the District Court who had determined their action, as well as all judges of the City Court, on grounds of their involvement in various proceedings in the 1970s and 1980s to which the applicants had been a party and on grounds of their work as judges during the communist era when those judges had applied socialist legal theory and morals. According to the applicants, such judges should not decide on claims under the 87/91 Act as this act is based on substantially different values and morals.

On 24 January 1995 a three-judge Chamber of the Supreme Court (Najvyšší súd) presided over by judge Dz. dismissed the applicants' challenge of the City Court judges. It held that that the subject‑matters of the proceedings in which the applicants had been involved in the past and the subject-matter in the present proceedings were different. The Supreme Court further rejected, for lack of substantiation, the applicants' challenge based on other grounds. Judge Dz. had been involved in several proceedings in the 1970s and 1980s to which the applicants had been a party, but not in the proceedings on the second applicant's dismissal in 1982.

On 28 February 1995, a three-judge Chamber of the Bratislava City Court quashed the District Court's judgment of 27 September 1994, holding that the District Court had failed to determine the action insofar as it had been brought by the first applicant. It remitted the applicants' case to the District Court for a new decision.

In the course of a hearing held before the District Court on 20 April 1995, the applicants challenged all judges of the Bratislava I District Court, including the judge who had given the judgment of 27 September 1994. In a letter of 22 April 1995 to the District Court the applicants submitted their reasons for their challenge, namely that all judges of the District Court had acted as judges during the socialist era. They argued that such judges should not decide on rehabilitation requests based on wrongs committed by the socialist regime.

On 21 July 1995 a three-judge Chamber of the Bratislava City Court rejected the applicants' challenge, holding that no reasons had appeared either in the applicants' arguments or otherwise for accepting it. The Chamber was presided over by judge K. who had been a member of the three‑judge Chamber of the City Court that, on 19 November 1985, had rejected the second applicant's appeal in the proceedings on his dismissal in 1982.

On 31 October 1995 a single-judge of the District Court dismissed the applicants' civil action of 12 February 1993. The court found it established that the second applicant had been dismissed from his work in 1982 for his unexcused absence for several days. The court found that the second applicant had failed to show that his dismissal had had a political context or that it had been based on any of the grounds referred to in Section 21 § 1 of the 87/91 Act. It further found that the first applicant had no standing in the case, in that the dismissal did not directly concern her.

On 25 January 1996 the applicants filed an appeal with the City Court, arguing that the District Court had misinterpreted their action, that its decision was consequently incorrect and, without indicating any specific ground, that the District Court judge who had dealt with their case was biased.

On 11 April 1996 a hearing was held on the applicants' appeal before a three‑judge Chamber of the City Court. According to the formal record (zapisnica) of this hearing, the applicants were present and, in reply to a specific question put by the President of the Chamber, stated that they did not wish to challenge any of the judges of the Chamber dealing with their case. According to this record, both applicants were invited to make oral submissions and actually used that opportunity. They referred to their written submissions, as filed with the City Court, and mainly reiterated the arguments set out in these submissions. The applicants requested the City Court, in case it would find against them, to grant leave for an appeal on points of law (dovolanie).

On the same day, the City Court upheld the District Court's judgment of 31 October 1995 and granted leave for an appeal on points of law to the Supreme Court.

On 5 August 1996 and through his lawyer, the second applicant filed an appeal on points of law with the Supreme Court, arguing that the District Court and the City Court had erred in their determination of the facts and law in his case. The adversary party's written comments on the second applicant's appeal on points of law were received by the Supreme Court, but were not transmitted to the second applicant. No hearing was held before the Supreme Court on the appeal on points of law.

On 28 November 1996, after having deliberated in camera on the basis of the parties' written submissions, a three-judge Chamber of the Supreme Court rejected the second applicant's appeal on points of law. It accepted as correct the findings made by the District Court as upheld on appeal by the City Court. The Supreme Court Chamber included judges Dz. (see above) and S. The latter had been a member of the three‑judge Chamber of the City Court that, on 19 November 1985, had rejected the second applicant's appeal in the proceedings on his dismissal in 1982. The remaining member of the Chamber, judge O. had been involved in several proceedings in the 1970s and 1980s to which the applicants had been a party, but not in the proceedings on the second applicant's dismissal in 1982.

4.  Proceedings on the applicants' claim for damages

On 5 August 1992 the applicants lodged a civil action with the Liptovský Mikuláš District Court against an insurance company and the Ministry of the Interior. The applicants claimed payment of damages incurred as a result of burglaries committed between 1981 and 1988 in the judicial district of Liptovský Mikuláš of which they were victims. They argued that the insurance company had unjustly failed to satisfy their insurance claim and that the police had failed to investigate these burglaries properly and had failed to provide the applicants with a report on the police investigation.

As the District Court considered the applicants' hand‑written civil action to be illegible and incomprehensible, it instructed the applicants, by letter of 3 May 1993, to remedy the shortcomings in their submissions. On 20 May 1994 the applicants requested an extension of the time‑limit fixed for this purpose.

By letter dated 28 August 1994 the applicants supplemented their original submissions to the District Court. This letter was received at the District Court on 2 September 1994 and resulted in a formal registration of the applicants' civil action.

On 16 July 1997 the Liptovský Mikuláš District Court judge requested the Bratislava II District Court, in the judicial district of which the applicants were residing, to hear the applicants for the purpose of further clarification of the civil action taken by them.

At some unspecified point in time, the applicants were informed that their case would be heard before the Liptovský Mikuláš District Court on 8 October 1998.

On 8 October 1998 the Liptovský Mikuláš District Court held a hearing in the applicants' case. The applicants, however, did not appear. On the same day, the District Court found against the applicants.

In its judgment, it noted that the applicants had refused to accept the summons, sent by mail and issued by the Liptovský Mikuláš District Court for the purpose of hearing them in order to obtain further clarification of their civil action. It further noted that, when the police subsequently tried to serve this summons on the applicants in person, the applicants refused to open the door and that, according to the police report on their attempt to serve the summons, the applicants “live on a low social level, they avoid contacts with their neighbours and it is impossible to deliver mail to them”.

The District Court further noted that the applicants had informed the District Court – by letter of 20 November 1997 which had been sent in the context of a different set of proceedings also pending before the District Court – that owing to long-time hospitalisation for treatment of a heart attack and subsequent complications, treatment for cancer consisting of an operation and subsequent radiation treatment, and the necessary permanent post‑treatment medical care and control, the applicants claimed to be unable to comply with requests to present themselves in person to various authorities and to check their mail and that, for these reasons, they had requested the District Court to extend the time‑limits fixed for complying with requests made by the District Court and not to send them any reminders.

It further noted that the applicants – after having been informed that a hearing in the present case would be held on 8 October 1998 – informed the District Court that they would be unable to attend as they were hospitalised and requested the court to determine their civil action in case the adversary parties also did not appear at the hearing or, should the adversary parties appear, to adjourn the hearing.

However, as the applicants had failed to substantiate their alleged hospitalisation with any documentary or other evidence, the District Court decided to pursue its examination of the action. As to the merits of the applicants' civil action, the District Court held that it was formally lodged in 1994. This being so, the claim against the insurance company had become statute‑barred. It further held that the Ministry of the Interior could not be held liable for the facts on which the applicant's claim for damages was based.

The District Court's judgment was served on the applicants on 25 November 1998. It was accompanied by written submissions filed by the insurance company in the proceedings before the District Court.

On 27 November 1998 the applicants filed an appeal by sending a notification to the District Court. In a subsequent letter sent by regular mail to the District Court, the applicants submitted the grounds for their appeal. This letter is formally dated 27 November 1998. However, from the documents submitted, it is not clear when it was actually sent and received.

In their further letter of 4 December 1998 to the District Court, the applicants extended their civil action in that it was also directed against the Ministry of Justice. In this letter, the applicants referred to the grounds for their appeal that they had already submitted.

By letter of 7 December 1998 the District Court instructed the applicants to bring their appeal against the judgment of 8 October 1998 in conformity with the procedural requirements under Articles 42 (3) and 205 of the Code of Civil Procedure within seven days. They were warned that a failure to do so would result in the inadmissibility of their appeal.

On 22 January 1999 the Žilina Regional Court declared the applicants' appeal inadmissible, holding that the applicants had failed to submit the grounds for their appeal despite the District Court's request of 7 December 1998. No further appeal lies against this decision.

On 10 March 1999 the applicants requested the Žilina Regional Court “to correct manifest errors” in its decision of 22 January 1999, and suggested various formal and material changes to that decision.

On 12 April 1999 the Regional Court rejected the applicant's request of 10 March 1999. It held that, insofar as the applicants' request did in fact concern elements in the decision of 22 January 1999 eligible for correction, the request had been filed out of time in that the delay for such a request had expired on 27 February 1999 when the decision of 22 January 1999 had become final and binding.

However, on 31 July 2001, the above letter formally dated 27 November 1998 which contained the applicants' grounds for their appeal against the District Court's decision of 8 October 1998 was found in another case‑file at the Liptovský Mikuláš District Court where it had apparently been filed by mistake. This letter was subsequently added to the District Court's case‑file on the applicants' civil action for damages.

On 15 October 2001, the District Court transmitted the applicants' appeal of 27 November 1998, accompanied by their grounds for appeal, to the Regional Court. In light of the circumstances, it requested a fresh determination of the applicants' appeal by the Regional Court.

On 27 June 2002 the Žilina Regional Court discontinued the proceedings on the applicants' appeal. It observed that the appeal had already been determined by its decision of 22 January 1999. Having found no support in the applicable procedural rules for re‑considering the appeal, it held the matter to be res iudicata. In its reasoning, however, the Regional Court expressed the view that, by its mistake, the District Court had deprived the applicants of the possibility to act before the court of appeal. The Regional Court concluded that, in these circumstances, its decision was eligible for a review by the Supreme Court on an appeal on points of law to be filed by the applicants.

On 18 October 2002 the applicants filed an appeal on points of law to the Supreme Court. They contested the Žilina Regional Court decisions of 22 January 1999 and 27 June 2002. On 22 November 2002 the Supreme Court transmitted this appeal to the Liptovský Mikuláš District Court which was to take further procedural steps. On 25 November 2002 the applicants requested a waiver of the court fees for the appeal on points of law and demanded a State paid legal counsel to be assigned to them. On 2 December 2002 the District Court requested the applicants to provide details concerning their material situation so that their request of 25 November 2002 could be determined. According to the information available in the court‑file, the proceedings on the appeal on points of law are still pending.

5.  Constitutional Complaint

On 20 December 2002 the applicants lodged a complaint with the Constitutional Court. They relied on the Constitution and on Article 6 of the Convention and alleged a violation of their rights to judicial protection and public and fair trial within reasonable time before an impartial tribunal in the proceedings on their action for damages before the Liptovský Mikuláš District Court and the Žilina Regional Court.

On 9 January 2003, under Section 23a of the Constitutional Court Act, a single Constitutional Court judge informed the applicants that their complaint could not be dealt with as it clearly did not meet the formal requirements for a constitutional complaint. At the same time, he informed the applicants of the formal requirements for filing such a remedy. The applicants have not indicated that they have pursued their constitutional complaint after this letter.

B.  Relevant domestic law

1.  The Extra-Judicial Rehabilitations Act (no. 87/1991 Coll., as amended)

On 21 February 1991 the Federal Assembly of the Czech and Slovak Federal Republic enacted the Extra‑Judicial Rehabilitations Act. It entered into force on 1 April 1991 and has been amended several times since. It is still in force in Slovakia.

The purpose of the Rehabilitation Act, as set out in Section 1 (1), is to endeavour the mitigation of consequences of certain injustices and property losses having occurred between 25 February 1948 and 1 January 1990 by acts falling within the sphere of civil law, labour law, and by administrative acts incompatible with the principles of a democratic society respecting the rights of citizens as enshrined in the Charter of the United Nations and the Universal Declaration of Human Rights.

Pursuant to Section 21 (1), legal actions terminating a person's contract of employment for reasons of political persecution or in violation of generally recognised human rights and freedoms are to be considered void.

Section 22 (1) provides that the former employer or its legal successor shall issue, at the request of the person concerned, a certificate that the latter's contract of employment was terminated for reasons mentioned in Section 21 (1).

Paragraph 3 of Section 22 entitles the person concerned to claim the determination of this issue by a court when the certificate is not delivered within three months.

2.  The Code of Civil Procedure (Act no. 99/1963 Coll., as amended)

Under Article 14 (1), judges are disqualified from dealing with a case if there may be doubts about their impartiality in relation to the subject-matter of the case, the parties to the proceedings or the parties' legal representatives.

Pursuant to Article 15 (1), as soon as a judge learns of facts disqualifying him or her from dealing with a case, he or she is to notify the president of the court accordingly without any delay.

Under Article 15 (2), parties to civil proceedings are obliged to inform the court immediately of any facts disqualifying a judge dealing with their case. It further confers a right on the parties to civil proceedings to state their views if disqualification of a judge is being considered.

A decision on removal of a judge from a case is to be taken by a Chamber of the higher instance court (Article 16 (1)).

Civil actions may be aimed at a determination of questions of personal status and family law (Article 80a); at a determination of legal obligations arising out of a contract, a legal relation or a breach of the law (Article 80b); or at obtaining a declaratory judgment on the existence of legal rights and obligations where there is a “pressing legal interest” in obtaining such a declaratory finding (Article 80c).

Proceedings on appeals on points of law are governed by Head Three, Part Four of the Code. Under Article 236 (1) an appeal on points of law is available against final decisions of a court of appeal in cases provided for by law.

In accordance with Article 237 an appeal on points of law is admissible against any decision of the appellate court where:

(a)  the decision concerns a subject-matter which falls outside the jurisdiction of courts,

(b)  a person acting as a party to the proceedings lacked capacity to do so,

(c)  a party to the proceedings lacked procedural capacity and was not duly represented,

(d)  the same matter has been earlier determined by a final decision or where other proceedings on the same matter started earlier,

(e)  no request for proceedings to be started was filed despite the fact that such a request was required by the law,

(f)  a party has been prevented, by the appellate court's conduct, from acting before the court,

(g)  the case was decided upon by an excluded judge or where the court's composition was incorrect.

In accordance with Article 241 (2) an appeal on points of law may only be based on the following grounds:

(a)  flaws in the proceedings as set out in Article 237 [of the Code of Civil Procedure],

(b)  other flaws in the proceedings which resulted in a wrong decision on the merits,

(c)  a court's decision on the basis of a factual finding which, in its substantive part, is not supported by the evidence taken,

(d)  court's decision resulting from an erroneous legal assessment of the matter.”

The scope of the Supreme Court's examination of an appeal on point of law is in principle limited to the grounds of appeal as submitted by an appellant (Article 242(1)). Except for flaws listed under Article 237 and flaws that have resulted in an incorrect decision on the merits, the Supreme Court does not review ex officio any procedural flaws that have not been complained of by an appellant.

3.  The Civil Code

According to Article 11, any natural person has the right to protection of his or her personality, in particular of his or her life and health, civil and human dignity, privacy, name and personal characteristics.

Pursuant to Article 13 (1), any natural person has the right to request that unjustified infringement of his or her personal rights should be stopped and the consequences of such infringement eliminated, and to obtain appropriate satisfaction.

Article 13 (2) provides that in cases when the satisfaction obtained under Article 13 (1) is insufficient, in particular because a person's dignity and position in society has been considerably diminished, the injured person is entitled to compensation for non-pecuniary damage. According to paragraph 3 of Article 13, when determining the amount of such compensation the courts have to take into account the seriousness of the prejudice suffered by the person concerned and also the circumstances under which the violation of that person's rights occurred.

COMPLAINTS

1.  In respect of the rehabilitation proceedings, the applicants complained under Article 6 § 1 of the Convention that they did not have a fair and public hearing and an adequate possibility to present their case orally before an impartial tribunal in that:

(a)  the courts had failed to communicate to them the adversary party's written comments on the second applicant's appeal on points of law and that the courts had erroneously interpreted and arbitrarily dismissed their action;

(b)  they had not been provided by the City Court with an adequate opportunity to state their case during the oral hearing held before this court;

(c)  no public hearing had been held in the proceedings before the Supreme Court;

(d)  some of the judges involved in these proceedings had acted in the proceedings on the dismissal of the second applicant in 1982, others had been involved in other unrelated subsequent proceedings in the 1970s and 1980s to which either the second applicant or both applicants had been a party and all of them had worked as judges during the communist era.

2.  As regards the proceedings on their claim for damages, the applicants complained under Article 6 § 1 of the Convention:

(a)  that the courts' decisions were arbitrary, that they had been deprived of the possibility to present their case during an oral hearing, that the judges involved in these proceedings lacked independence and impartiality, that the Regional Court had failed to take into account their grounds of appeal; and

(b)  that the proceedings had exceeded a reasonable time.

3.  The applicants further complained that a reference to their personal circumstances – irrelevant for the subject‑matter of the proceedings – was included in the District Court's judgment of 8 October 1998 thus constituting a violation of their rights guaranteed by Article 8 of the Convention.

4.  Relying on Article 9 of the Convention, the applicants complained of being persecuted by secret police.

5.  The applicants complained under Article 13 of the Convention that they had no effective remedy at their disposal in respect of the violations of their rights under Article 6 § 1 of the Convention in the rehabilitation proceedings and in the proceedings on their claim for damages.

6.  Under Article 14 of the Convention, the applicants also complained that they were discriminated against on grounds of their social and national origin and for having opposed the past communist regime.

7.  The applicants finally alleged a violation of Article 17 of the Convention.

THE LAW

1.  The applicants complained that, in the rehabilitation proceedings, they had been deprived of a fair and public hearing, that they had been prevented from presenting their case orally and that the judges who had decided upon their action had lacked impartiality. They invoked Article 6 § 1 of the Convention, which, insofar as relevant, provides:

“In the determination of his civil rights and obligations ... , everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law.”

(a)  The Court notes at the outset that the proceedings complained of were aimed at rehabilitation of the second applicant for his dismissal from work in 1982. The Court further notes the finding of the District Court in its judgment of 31 October 1995, which was later upheld by the higher courts, that the first applicant had no standing to sue in these proceedings.

The Court therefore considers that the first applicant cannot claim to be a victim, within the meaning of Article 34 of the Convention, in respect of these proceedings.

It follows that this part of the application, insofar as it is brought by the first applicant, must be rejected for being incompatible ratione personae, pursuant to Article 35 §§ 3 and 4 of the Convention.

(b)  The second applicant complained that the proceedings had been unfair in that the courts had erroneously interpreted and arbitrarily dismissed his action and, in particular, in that they had failed to communicate to him the adversary party's written comments on his appeal on points of law.

The Government maintained that the guarantees of a fair trial had been respected in these proceedings.

The second applicant disagreed. He emphasised that the courts had insufficiently established and unjustly assessed the facts of the case and that they had decided arbitrarily in bad faith against him.

The Court considers, in the light of the parties' submissions, that this complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

(c)  As regards the complaint that the second applicant had not had an adequate opportunity to present his case orally before the Bratislava City Court, the Government submitted that the second applicant's allegation was contradicted by the facts of the case. Thus, according to the formal record of the oral hearing held on 11 April 1996 before the City Court, the second applicant was present at that hearing and there is no indication that, on this occasion, he would not have been given an adequate opportunity to state his case.

The second applicant disagreed and reiterated that, at the hearing held on 11 April 1996 before the City Court, he and his wife had not had a fair chance to make oral submissions.

The Court notes that the second applicant did not complain in his appeal on points of law that he could not orally present his case in the course of the appellate proceedings.

The Court therefore considers that, as regards this complaint, the second applicant failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention.

It follows that the relevant part of the application must be rejected under Article 35 §§ 1 et 4 of the Convention for non-exhaustion of domestic remedies.

(d)  In so far as the second applicant complained that there had been no oral hearing before the Supreme Court, the Government submitted that those proceedings had only concerned points of law, which in principle do not require further oral submissions. In support of this argument, they maintained that there had been public hearings both before the court of first instance and the court of appeal.

The second applicant disagreed and emphasised that there had not been any hearing at all before the Supreme Court in violation of Article 6 § 1 of the Convention.

The Court has held that, provided that there has been a public hearing at first instance, the absence of “public hearings” at second or third instance may be justified by the special features of the proceedings at issue. Thus proceedings only involving points of law, as opposed to questions of fact, may comply with the requirements of Article 6 even when the appellant was not given an opportunity of being heard in person by the appeal or cassation court (see Meftah and Others v. France [GC], nos. 32911/96, 35237/97 and 34595/97, § 41, 26 July 2002).

The Court notes that, in the rehabilitation proceedings, an oral hearing was held before the District Court as well as before the City Court. The Court also notes the scope of the Supreme Court's competence in reviewing appeals on points of law in civil proceeding which is, in principle, limited to questions of the procedural conformity and points of law. The Court cannot find that the fact that the second applicant was not given an opportunity to plead his case orally before the Supreme Court infringed his rights under Article 6 § 1 of the Convention.

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.

(e)  As regards the complaint that the action for rehabilitation was not dealt with by impartial judges, the Government maintained that the second applicant's challenges had all been duly entertained by the competent superior courts in accordance with the applicable procedural rules and that they had been assessed as being unfounded.

The Government pointed out that, at the hearing held before the City Court on 11 April 1996, the applicants had expressly stated that they had not wished to challenge the judges of that court dealing with their action. They concluded that this complaint was manifestly ill‑founded.

The second applicant reiterated his complaint. He maintained that the presiding judge of the City Court Chamber deciding on 21 July 1995 on the applicants' challenge of bias of 20 and 22 April 1995, judge K., and one of the judges in the Supreme Court Chamber deciding on the second applicant's appeal on points of law, judge S., had been members of the appellate court Chamber which had delivered the judgment of 19 November 1985 in the original proceedings concerning the second applicant's dismissal.

He further maintained that judges Dz. and O., who had sat in the Supreme Court Chamber deciding of the appeal on points of law, had been involved in several other proceedings in the 1970s and 1980s to which the applicants had been a party.

The second applicant finally pointed out that he had had no opportunity to learn who were the judges sitting in the Supreme Court Chamber determining the second applicant's appeal on points of law and that, consequently, he had had no opportunity to challenge them on ground of bias.

The Court notes that, after the applicants' action had been considered on the second occasion by the District Court on 31 October 1995, it was examined on an appeal by the City Court as a court with full jurisdiction. At the hearing held before the City Court on 11 April 1996, the applicants expressly stated that they did not wish to challenge the judges of the Chamber of that court. The Court thus considers that any possible failings in respect of impartiality of the District Court judge dealing with the case were cured by the re‑hearing of the case on the appeal (see De Cubber v. Belgium, judgment of 26 October 1984, Series A no. 86, p. 19, § 33).

Thus it only remains to be examined whether the guarantees of an impartial tribunal were respected in the proceedings before the Supreme Court. In particular, the question of impartiality must be resolved in respect of judges S., Dz. and O, who sat in the Supreme Court Chamber determining the second applicant's appeal on points of law, and in respect of the judge K., who decided on the applicants' challenge of bias of 20 and 22 April 1995.

The Court recalls that the existence of impartiality for the purposes of Article 6 § 1 of the Convention must be determined according to a subjective test, that is on the basis of the personal conviction of a particular judge in a given case, and also according to an objective test, that is, by ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (see Wettstein v. Switzerland, no. 33958/96, § 42, ECHR 2000-XII).

As to the subjective test, the personal impartiality of a judge must be presumed until there is proof to the contrary (see Wettstein, cited above, § 43).

Under the objective test, it must be determined whether, quite apart from the judge's personal conduct, there are ascertainable facts which may raise doubts as to his impartiality. In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public. Accordingly, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw. This implies that in deciding whether in a given case there is a legitimate reason to fear that a particular judge lacks impartiality, the standpoint of the party concerned is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see Wettstein, cited above, § 44).

(i)  Insofar as the second applicant's complaint concerns judge S., who, before being a member of the Supreme Court Chamber determining his appeal on points of law in the rehabilitation proceedings, had been a member of the appellate court Chamber in the original proceedings concerning his dismissal, the Court considers, in the light of the parties' submissions, that this complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

(ii)  The second applicant further complained that, before sitting in the Supreme Court Chamber deciding on his appeal on points of law, judges Dz. and O. had been involved in other court proceedings concerning the applicants and that, in general, they had been acting in the judiciary during the communist regime.

The Court cannot find that a mere fact that judges acted as judges in the communist regime and that they were involved in some unrelated court proceedings concerning the applicants would, as such, infringe the guarantees of impartiality within the meaning of Article 6 § 1 of the Convention.

The Court notes that the applicants have not substantiated this part of the application by any specific circumstances that would justify a different conclusion in the present case.

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.

(iii)  The second applicant finally complained that, before being the presiding judge of the Supreme Court Chamber determining the applicants' challenge of bias of 20 and 22 April 1995, judge K. had been a member of the Chamber of the City Court deciding upon his appeal in the original proceedings on legality of his dismissal.

The Court notes that the involvement of judge K. in the rehabilitation proceedings was limited to the determination of the applicants' challenge of bias of the judges of Bratislava 1 District Court. In the Court's view, this was a mere procedural decision which did not involve the determination of the merits of second applicant's “civil rights and obligations” within the meaning of Article 6 § 1 of the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2.  Relying on Article 6 § 1 of the Convention, the applicants further complained that their right to a fair hearing before an independent and impartial tribunal within reasonable time had not been respected in the proceedings on their action for damages.

The Government submitted, in the first place, that the proceedings complained of did not enjoy the protection of Article 6 § 1 of the Convention in that the rights asserted by the applicants had no basis in domestic law and in that the action was abusive.

The Court considers that it is not called upon to decide whether Article 6 § 1 of the Convention applies to the present proceedings as, in any event, this part of the application is inadmissible for the following reasons.

(a)  As to the complaints of the course and outcome of these proceedings, the Government further pointed out that the proceedings were still pending and proposed to reject the relevant part of the application as being premature.

The applicants disagreed. They maintained that the proceedings had effectively been terminated by the Žilina Regional Court's decision of 22 January 1999 and stated that the following judicial process could not be considered as a real continuation of the proceedings on their action.

The Court recalls that the question whether proceedings before national authorities satisfy the requirements of a fair hearing by an independent and impartial tribunal can in principle only be determined by examining the proceedings as a whole, that is to say only once they have been concluded (see Kuráková v. the Slovak Republic (dec.), no. 37895/97, 1 February 2001).

In the present case the applicants' appeal of 27 November 1998 together with its subsequent reasons was again decided upon by the Regional Court on 27 June 2002. On 18 October 2002 the applicants filed an appeal on points of law against this decision to the Supreme Court. The appeal on points of law is still pending there. Accordingly, the complaints about the course and outcome of these proceedings are premature.

It follows that this part of the application must be rejected under Article 35 §§ 1 et 4 of the Convention for non-exhaustion of domestic remedies.

(b)  As regards the complaint of the length of these proceedings, the Government pointed out that the proceedings are still pending. They maintained that the applicants have failed to exhaust domestic remedies on this point in that they did not lodge a constitutional compliant under Article 127 of the Constitution, which became available to them as from 1 January 2002. The Government further stated that, in any event, the length of the proceedings was mainly due to the applicants' behaviour.

The applicants pointed out that they had introduced the application before 1 January 2002 and considered that they were therefore not required to use the said remedy.

The Court has found that the complaint under Article 127 of the Constitution is an effective remedy, both in law and in practice, in the sense that it is capable of preventing the continuation of the alleged violation of the right to a hearing without undue delays and of providing adequate redress for any violation that has already occurred. It has held that the applicants in cases against Slovakia complaining about delays in proceedings which were still pending after 1 January 2002 should have recourse to this remedy notwithstanding that it was enacted after their applications had been filed with the Court or the European Commission of Human Rights (see Andrásik and Others v. Slovakia (dec.), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01, 60226/00, 22 October 2002).

In the present case the proceedings are still pending. The applicants have not showed that they had made use of the constitutional complaint under Article 127 of the Constitution in accordance with the applicable procedural rules.

It follows that this complaint must be rejected under Article 35 §§ 1 et 4 of the Convention for non-exhaustion of domestic remedies.

3.  The applicants further complained that the District Court had arbitrarily included irrelevant information about their social and health situation in its judgment of 8 October 1998. They relied on Article 8 of the Convention which, insofar as relevant, provides:

“1.  Everyone has the right to respect for his private ... life ...

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Court notes that, under Article 11 and the following of the Civil Code, the applicants could have taken proceedings before a general court with a view to having the alleged interference with their personality rights established, to having eliminated the consequences of such interference and to obtaining appropriate redress for it. The Court observes that such proceedings could in principle be taken against the State and/or against the judge(s) involved and that they could be aimed inter alia at obtaining financial satisfaction by way of non-pecuniary damages. The Court considers that, in the particular circumstances of the case, a civil action under Article 11 and following of the Civil Code was, in principle, capable of remedying the applicants' situation. It is therefore a remedy that the applicants should have tried for the purposes of Article 35 § 1 of the Convention.

However, the applicants have not availed themselves of this remedy.

It follows that this complaint must be rejected under Article 35 §§ 1 et 4 of the Convention for non-exhaustion of domestic remedies.

4.  The applicants complained that they had no effective remedy at their disposal as regards the alleged violations of their rights under Article 6 § 1 of the Convention in respect of both the rehabilitation proceedings and the proceedings in their action for damages. They relied on Article 13 of the Convention which provides 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 argued that, as regards the complaint about the lack of impartiality of the judges involved in the rehabilitation proceedings, the second applicant did have a remedy at his disposal, namely a right of challenge on grounds of bias.

As to the complaint of an inadequate opportunity to present the case orally before the City Court, the Government pointed out that the second applicant had a remedy - the appeal on points of law.

Finally, as to the complaint about the lack of a remedy in respect of the length of the proceedings on the applicants' action for damages, the Government referred to their argument under Article 6 § 1 of the Convention that these proceedings did not enjoy the protection of the latter article. They concluded that, in this respect, the applicants did not have an “arguable claim” under Article 6 § 1 of the Convention and that the complaint under Article 13 was consequently manifestly ill-founded. The Government further maintained that, in any event, the applicants had a remedy, namely the constitutional complaint under Article 127 of the Constitution.

The applicants disagreed.

(a)  To the extent that the second applicant complained about the absence of an effective remedy in respect of his complaints (i) that the courts had failed to communicate to him the adversary party's observations on his appeal on points of law and that the rehabilitation proceedings as a whole were unfair; and (ii) that judge S. sitting in the Supreme Court Chamber that had determined his applicant's appeal on points of law had lacked independence, the Court considers, in the light of the parties' submissions, that this part of the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

(b)  The Court has found above that the applicants' remaining complaints under Article 6 § 1 of the Convention are inadmissible. For similar reasons, in this respect the applicants did not have an “arguable claim” and Article 13 is therefore inapplicable to this part of the application (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52).

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

5.  The applicants finally complained of a violation of their rights protected under Articles 9, 14 and 17 of the Convention.

The Court finds that, insofar as this part of the application has been substantiated and falls within its competence, the facts of the case do not disclose any appearance of a violation of these provisions of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the second applicant's complaints under Article 6 § 1 of the Convention (i) that the courts had failed to communicate to him the adversary party's observations on his appeal on points of law and that the rehabilitation proceedings as a whole were unfair; (ii) that judge S. sitting in the Supreme Court Chamber that had determined his appeal on points of law had lacked impartiality; and (iii) his complaint under Article 13 of the Convention that he had no effective remedy at his disposal in this respect;

Declares the remainder of the application inadmissible.

Michael O'BoyleNicolas Bratza
RegistrarPresident

Full & Egal Universal Law Academy