AS TO THE ADMISSIBILITY OF
Application No. 25189/94
by Ivan PRELOZNÍK
against the Slovak Republic
The European Commission of Human Rights (Second Chamber) sitting
in private on 15 January 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 20 April 1994 by
Ivan PRELOZNÍK against the Slovak Republic and registered on
19 September 1994 under file No. 25189/94;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
14 February 1996 and the observations in reply submitted by the
applicant on 14 March 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Slovak citizen born in 1956. He is a
businessman and resides in Bratislava.
The facts of the case, as submitted by the parties, may be
summarised as follows.
A. The particular circumstances of the case:
On 16 June 1991 the applicant bought a business at a public
auction. At the same time he acquired the right to a five year lease
of the premises.
On 23 August 1991 the applicant was informed that the building
where his business was situated would undergo reconstruction. For this
reason the grant of the lease was delayed. Since the lease comprised
a break clause, the applicant could not run his business properly.
On 22 May 1992 the applicant lodged a claim for damages with the
Bratislava 1 District Court (Obvodny súd). On 23 July 1992, at the
court's request, he quantified the damage he had suffered. The
applicant also asked the Bratislava City Court (Mestsky súd) to waive
court fees on the ground of his indigence.
On 8 September 1992 the Bratislava 1 District Court informed the
applicant that under the rules in force the President of the Bratislava
City Court could only waive or reduce court fees if they did not exceed
20,000 Czechoslovak crowns, whereas the fees in the applicant's case
amounted to 54,544 crowns.
The applicant was further informed that he could request a waiver
of court fees under Section 138 para. 1 of the Code of Civil Procedure.
The court asked him either to pay the fees within 15 days or to lodge,
within the same time limit, a completed request for waiver including
documents proving his indigence.
On 19 October 1992 the Bratislava 1 District Court stayed the
proceedings as the applicant had failed either to pay the fees or to
lodge, within the time limit, an appropriate request for their waiver.
On 16 November 1992 the applicant appealed against the aforesaid
decision to the Bratislava 1 District Court. He claimed that he could
not pay the fees because of his indigence, and that he had not applied
for a waiver since he had been informed by the first instance court
that fees could only be waived if they did not exceed 20,000 crowns.
On 21 June 1993 the applicant complained of the length of the
proceedings concerning his case with the Ministry of Justice. On
20 January 1994 the Vice-President of the Bratislava 1 District Court,
to whom the complaint had been transmitted, dismissed it on the ground
that the decision of 19 October 1992 had become final on 23 November
1992 as the applicant had failed to lodge an appeal against it.
The applicant then lodged a complaint with the President of the
Bratislava City Court. On 23 May 1994 the latter found that the
applicant was justified in his complaint. She apologised to the
applicant, and the fees for the complaint were paid back to him. The
applicant was also informed that the President of the Bratislava 1
District Court would be requested to arrange for submitting the case
to the Appellate Court.
On 24 June 1994 the Vice-President of the Bratislava 1 District
Court transferred the case to the Bratislava City Court.
On 12 September 1994 the Bratislava City Court dealing with the
applicant's appeal quashed the decision of the Bratislava 1 District
Court and ordered the District Court to deal with the case again. On
23 September 1994 the Bratislava 1 District Court received this ruling.
On 31 October and 7 November 1995 the applicant was served in persona
and by mail with the ruling.
On 21 December 1994 the applicant requested the Bratislava 1
District Court to change the defendant. Upon this request, the Vice-
President of the Court summoned the applicant for a meeting on 22 March
1995. On 10 March 1995 the applicant received the summons.
On 22 March 1995 the applicant appeared and the meeting in
question was held.
On 7 June 1995 the applicant asked the Bratislava 1 District
Court to add another defendant to the proceedings, to amend the amount
of interest of the late payments and to disclaim the waiver of court
fees.
On 9 February 1996 the Bratislava 1 District Court dismissed the
applicant's request to add a further defendant and stayed the
proceedings as the original defendant did not have legal status.
From the applicant's most recent submissions it appears that he
appealed to the Bratislava City Court, which on 25 April 1996 confirmed
the Bratislava 1 District Court's decision.
On 16 May 1996 the Constitutional Court (Ústavny súd) declared
inadmissible the applicant's "podnet" introduced in March 1996 as he
was not represented by a lawyer.
B. Relevant domestic law and case-law:
Article 48 para. 2 of the Constitution provides:
"Every person has the right to have his or her case tried
publicly without unreasonable delay ..."
Pursuant to Section 6 of the Code of Civil Procedure, when
examining cases the courts are to proceed in cooperation with all
participants so that, inter alia, the protection of rights is
expeditious and effective.
Under Section 6 of the Courts and Judges Act (Zákon o súdoch a
sudcoch) complaint about delays in court proceedings may be put to the
authorities responsible for the State administration of courts.
According to Section 17 para. 1 of the State Administration of
Courts Act (Zákon o sídlach a obvodoch súdov Slovenskej republiky,
státnej správe súdov, vybavovaní stazností a o volbách prísediacich)
No. 80/1992, any natural person or corporation can turn to State
authorities responsible for the administration of courts (the Ministry
of Justice, the President and Vice-President of the Supreme Court and
the Presidents and Vice-Presidents of Regional and District Courts)
with complaints only in cases of delayed proceedings or misconduct
caused by improper performance of and/or undignified interference with
the proceedings by officers of the court. According to Sections 24 -
27 of the Act the responsible authority is required to establish all
relevant facts and, if necessary, hear the persons concerned.
Examination of the complaint is to be terminated within two months, and
the applicant is to be informed in writing of the conclusion. When the
complaint has been dealt with by the President of a District Court, an
applicant is entitled to request a review of the conclusion by the
President of the appropriate Regional Court.
According to Article 130 para. 3 of the Constitution, the
Constitutional Court can commence proceedings upon the "podnet"
presented by any individual or a corporation claiming that their rights
have been violated.
In a judgment of 25 October 1995, the Constitutional Court found
a violation of the petitioner's right to have his case tried without
unreasonable delay guaranteed by Article 48 para. 2 of the
Constitution.
Pursuant to Section 18 of Act No. 58/1969 on Liability for Damage
Caused by a State Organ's Decision or by an Erroneous Official Act
("the State Liability Act"), as amended, the State is responsible for
the damage caused by erroneous official acts committed by persons who
carry out tasks vested in State organs.
COMPLAINTS
The applicant complains of the length of the proceedings
concerning his claim for damages. He alleges that by inactivity of the
courts he has suffered further damage, and claims compensation. He
invokes Article 6 para. 1 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 20 April 1994 and registered
on 19 September 1994.
On 29 November 1995 the Commission decided to communicate the
application to the respondent Government, pursuant to Rule 48 para. 2
(b) of the Rules of Procedure.
The Government's written observations were submitted on
14 February 1996. The applicant's observations in reply were submitted
on 14 March 1996.
THE LAW
The applicant complains, under Article 6 para. 1 (Art. 6-1) of
the Convention, about the length of the proceedings concerning his
claim for damages. He alleges that by the inactivity of the courts he
has suffered further damage, and claims compensation.
Article 6 para. 1 (Art. 6-1) of the Convention provides, as far
as relevant:
"In the determination of his civil rights and obligations
..., everyone is entitled to ... a ... hearing within a
reasonable time ..."
The Government submit that the applicant has not exhausted the
domestic remedies which were at his disposal, and that the application
should be declared inadmissible on this ground. The applicant has
failed to file either a complaint under Section 17 para. 1 of the State
Administration of Courts Act No. 80/1992 and/or a "podnet" as provided
by Section 130 para. 3 of the Constitution. In support of their
argument the Government invoke the Constitutional Court's judgment of
25 October 1995. They add that a Constitutional Court's finding of a
violation of a fundamental right or freedom entitles the person
concerned to claim damages pursuant to Act No. 58/1969.
The applicant has expressed doubts about effectiveness of these
remedies.
The Commission observes that when the applicant lodged the
present application the proceedings were pending before the first
instance court. Thus, it is necessary to consider the effectiveness
of the domestic remedies in question in the light of this fact.
The Commission recalls the Convention organs' case-law, according
to which the decisive question in assessing the effectiveness of a
remedy concerning a complaint about the length of proceedings is
whether the applicant can raise this complaint before domestic courts
by claiming specific redress; in other words, whether a remedy exists
that could answer his complaints by providing a direct and speedy, and
not merely indirect, protection of the rights guaranteed in Article 6
para. 1 (Art. 6-1) of the Convention (cf. Eur. Court HR, the Deweer v.
Belgium judgment of 27 February 1980, Series A no. 35, p. 16, para.
29). It is incumbent on the Government claiming non-exhaustion of
domestic remedies to show that the remedy was an effective one
available in theory and in practice at the relevant time, that is to
say, that it was accessible, was one which was capable of providing
redress in respect of the applicant's complaints and offered reasonable
prospects of success (cf. Eur. Court HR, the Akdivar and Others v.
Turkey judgment of 16 September 1996, para. 68, Reports-1996).
As regards the administrative remedy referred to by the
Government, i.e. the complaint under Section 17 para. 1 of the State
Administration of Courts Act No. 80/1992, the Commission observes that
the applicant pursued this remedy in substance. The Commission is not
required to determine whether the complaint is an effective remedy, as
the Government's objection is based on an incorrect factual premise.
As regards the "podnet", the Commission observes that the
applicant, in his observations in reply, informed the Commission that
in February/March 1996 he had lodged a "podnet" before the
Constitutional Court and that on 16 May 1996 it was rejected as he was
not represented by a lawyer.
It is true that the "podnet" can give rise to a declaration of
excessive length of proceedings and, according to the Government, to
an award of damages in respect of the length. However, where
proceedings are still pending at first instance, the Commission
considers that a remedy must be capable of accelerating the proceedings
if it is to be effective. It has not been suggested that the
Constitutional Court in "podnet" proceedings, is capable of interfering
with pending proceedings in any way. The Constitutional Court had
held on several occasions that it could not interfere with the
decisions of the general courts, nor could it act as an appellate court
in matters which are within the jurisdiction of the general courts
(cf. No. 26384/95, Dec. 26.6.96).
In these circumstances, the Commission finds that it has not been
established that the applicant had or has any effective remedy at his
disposal which could remedy his complaints under Article 6 para. 1
(Art. 6-1) of the Convention. Accordingly, the application cannot be
declared inadmissible for non-exhaustion of domestic remedies.
As regards the merits of the application, the Government submit
that they cannot consider the length of the proceedings as the
applicant's claim for damages is still pending. Nevertheless, they are
of the opinion that in the present case the proceedings have not been
unreasonably slow.
The applicant submits that the overall length of the proceedings
exceeds any notion of reasonableness.
The Commission considers, in the light of the criteria
established by the case-law of the Convention organs on the question
of "reasonable time", and having regard to all the information in its
possession, that an examination of the merits of the complaint is
required.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the
merits of the case.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy