EUROPEAN COMMISSION OF HUMAN RIGHTS
SECOND CHAMBER
Application No. 25189/94
Ivan Prelo?ník
against
the Slovak Republic
REPORT OF THE COMMISSION
(adopted on 3 December 1997)
TABLE OF CONTENTS
Page
I.INTRODUCTION
(paras. 1-5)1
II.ESTABLISHMENT OF THE FACTS
(paras. 6-18)2
III.OPINION OF THE COMMISSION
(paras. 19-33)4
A.Complaint declared admissible
(para. 19)4
B.Point at issue
(para. 20)4
C.As regards Article 6 para. 1 of the Convention
(paras. 21-33)4
CONCLUSION
(para. 33)5
DISSENTING OPINION OF Mr F. MARTINEZ6
APPENDIX :DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION7
I.INTRODUCTION
1.The present Report concerns Application No. 25189/94 introduced on 20
April 1994 against the Slovak Republic and registered on 19 September 1994.
The applicant is a Slovak citizen, born in 1956 and resident in
Bratislava.
The respondent Government are represented by their Agent, Mr. Robert Fico.
2.The application was communicated to the Government on 29 November 1995.
Following an exchange of written observations, the complaint relating to the
length of proceedings (Article 6 para. 1 of the Convention) was declared
admissible on 15 January 1997. The decision on admissibility is appended to
this Report.
3.Having noted that there is no basis upon which a friendly settlement
within the meaning of Article 28 para. 1(b) of the Convention can be secured,
the Commission (Second Chamber), after deliberating, adopted this Report on 3
December 1997 in accordance with Article 31 para. 1 of the Convention, the
following members being present:
Mrs.G.H. THUNE, President
MM.G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. ŠVÁBY
P. LORENZEN
E. BIELI?NAS
E.A. ALKEMA
A. ARABADJIEV
4.In this Report the Commission states its opinion as to whether the facts
found disclose a violation of the Convention by the Slovak Republic.
5.The text of this Report is now transmitted to the Committee of Ministers
of the Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
II.ESTABLISHMENT OF THE FACTS
6.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, he could not run his
business properly.
7.On 22 May 1992 the applicant lodged a claim for damages with the
Bratislava 1 District Court (Obvodný 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 (Mestský súd) to waive court fees on the ground of his
indigence.
8.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.
9.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.
10.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.
11.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.
12.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 District
Court transferred the case to the Bratislava City Court.
13.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 1994 the applicant was served in persona and by mail with the ruling.
14.On 21 December 1994 the applicant requested the Bratislava 1 District
Court to amend the defendant to the proceedings. 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.
15.On 22 March 1995 the applicant appeared and the meeting in question was
held.
16.On 7 June 1995 the applicant asked the Bratislava 1 District Court to add
a further defendant to the proceedings and to amend the amount of interest on
the late payments. He also informed the Court that he wished to withdraw his
request for waiver of the court fees.
17.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. On 25 April 1996 the Bratislava
City Court confirmed the Bratislava 1 District Court's decision.
18.On 16 May 1996 the Constitutional Court (Ústavný súd) declared
inadmissible the applicant's "podnet" introduced on 12 March 1996 as he was not
represented by a lawyer.
III.OPINION OF THE COMMISSION
A.Complaint declared admissible
19.The Commission has declared admissible the applicant's complaint that his
case has not been heard within a reasonable time and that he has suffered
further damage by the inactivity of the courts.
B.Point at issue
20.The only point at issue is whether the length of the proceedings
complained of has exceeded the "reasonable time" requirement referred to in
Article 6 para. 1 (Art. 6-1) of the Convention.
C.As regards Article 6 para. 1 (Art. 6-1) of the Convention
21.The relevant part of Article 6 para. 1 (Art. 6-1) of the Convention
provides as follows:
"In the determination of his civil rights and obligations ..., everyone is
entitled to a hearing within a reasonable time by [a] tribunal ..."
22.The Commission would first note that the applicant's claim that he
suffered damage by reason of the inactivity of the courts is a matter relating
to the damages suffered as a result of the length of the proceedings. It will
therefore fall to be considered, if at all, in the context of Article 50 (Art.
50) or Article 32 para. 2 (Art. 32-2) of the Convention.
23.The proceedings in question concerned the applicant's claim for damages he
had incurred in connection with the fact that it was impossible to run his
business properly on the premises he had leased but which were to be
reconstructed. The purpose of the proceedings was to obtain a decision in a
dispute over "civil rights and obligations", and they accordingly fall within
the scope of Article 6 para. 1 (Art. 6-1) of the Convention.
24.The proceedings, which started on 22 May 1992 and ended on 25 April 1996
by the stay of proceedings, lasted three years and eleven months.
25.The Commission recalls that the reasonableness of the length of
proceedings must be assessed in the light of the particular circumstances of
the case and with the help of the following criteria: the complexity of the
case, the conduct of the parties and the conduct of the authorities dealing with
the case (see Eur. Court HR, Vernillo v. France judgment of 20 February 1991,
Series A no. 198, p. 12, para. 30).
26.The applicant submits that the overall length of the proceedings exceeds
any notion of reasonableness.
27.The respondent Government do not give any explanation to justify the
reasonableness of the length of the proceedings in question.
28.In the present case the courts concerned were called upon to decide on the
applicant's claim for damages. In the Commission's opinion the case was not,
therefore, particularly complex, notwithstanding the fact that no decision was
ever taken on the merits.
29.The Commission finds that the applicant contributed to the length of the
proceedings by his requests for change of the defendant and for the addition of
a further defendant, submitted to the Bratislava I District Court on 21 December
1994 and 7 June 1995, respectively. However, in the Commission's view, the
applicant's conduct alone cannot explain the overall length of the proceedings.
30.In respect to the conduct of the Slovak courts, the Commission notes that
the applicant's appeal introduced on 16 November 1992 against the decision of 19
October 1992, by which the Bratislava I District Court stayed the proceedings,
was dealt with by the Bratislava City Court on 12 September 1994 (i.e. with a
lapse of more than one year and nine months). The Commission further notes a
period of inactivity between 7 June 1995 and 9 February 1996, i.e. eight months,
which occurred between the applicant's request for addition of a further
defendant and the decision of the Bratislava I District Court. In view of these
circumstances the Commission considers that it cannot be said that the courts
were diligent in the conduct of the case. They are therefore mainly responsible
for the overall length of the proceedings.
31.The Commission reaffirms that it is for Contracting States to organise
their legal system in such a way that their courts can guarantee the right of
everyone to obtain a final decision on disputes relating to civil rights and
obligations within a reasonable time (see Eur. Court HR, Vocaturo v. Italy
judgment of 24 May 1991, Series A no. 206-C, p. 32, para. 17).
32.In the light of the criteria established by the case-law and having regard
to the circumstances of the present case, the Commission considers that the
length of the proceedings was excessive and failed to meet the "reasonable time"
requirement.
CONCLUSION
33.The Commission concludes, by 12 votes to 2, that in the present case there
has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
(Or. French)
DISSENTING OPINION OF Mr F. MARTINEZ
J'estime, pour ma part, que la Commission n'est pas compétente pour
examiner le bien-fondé de cette affaire. En effet, l'article 26 de la Convention
stipule clairement que "la Commission ne peut être saisie qu'après l'épuisement
des voies de recours internes". Or, faute pour le requérant d'avoir fait usage
des voies de droit mises à sa disposition en droit interne, la Commission ne
saurait statuer sur le fond de la requête.
A maintes reprises, la Commission a affirmé que, lorsqu'une voie de droit
interne est irrecevable pour vice de forme imputable au requérant, l'épuisement
des voies de recours internes au sens de l'article 26 de la Convention ne se
trouve pas réalisé.
Dans le cas d'espèce, la Cour constitutionnelle de l'Etat défendeur a
déclaré irrecevable le "podnet" introduit par le requérant sans le concours d'un
avocat. Donc, selon la jurisprudence constante de la Commission, les voies de
recours internes n'ont pas été épuisées.
APPENDIX
DECISION OF THE COMMISSION
AS TO THE ADMISSIBILITY OF
Application No. 25189/94
by Ivan Prelo?ník
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. ŠVÁBY
P. LORENZEN
E. BIELI?NAS
E.A. ALKEMA
Mrs.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
PRELO?NÍK 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 (Obvodný 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 (Mestský 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 1994 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 (Ústavný 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, štátnej správe súdov,
vybavovaní s?a?ností a o vo?bách 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 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 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 of the Convention (cf. Eur. Court HR, 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, Akdivar and Others v. Turkey
judgment of 16 September 1996, Reports of Judgments and Decisions for 1996-IV,
p. ..., para. 68).
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 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. SCHOEPFERG.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy