FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 35316/05
by Roman TÖVIŠ
against Slovakia
The European Court of Human Rights (Fourth Section), sitting on 4 December 2007 as a Chamber composed of:
SirNicolas Bratza, President,
MrG. Bonello,
MrK. Traja,
MrL. Garlicki,
MsL. Mijović,
MrJ. Šikuta,
MrsP. Hirvelä, judges,
and Mrs F. Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 23 September 2005,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the declaration submitted by the respondent Government on 25 October 2007 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Roman Töviš, is a Czech national who was born in 1966 and lives in Košice. He was represented before the Court by Mr M. Kožiak, a lawyer practising in Košice. The Slovak Government (“the Government”) were represented by their Agent, Ms M. Pirošíková.
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Action
On 19 December 1994 the applicant brought an action against a private commercial company, R., in the Košice Regional Court (Krajský súd). He sought an order for payment of an amount of money in connection with their previous transaction which involved a sale of trucks to R., the assumption by R. of the applicant’s debt and a settlement of the associated tax liabilities.
On 27 December 1994 the Regional Court found that it lacked jurisdiction to examine the action and that it fell to be determined at first instance by the Košice II District Court (then Obvodný súd, at present Okresný súd). The action was consequently transmitted to the latter court under Article 9 §§ 1 and 3 (3) of the Code of Civil Procedure (CCP).
Between 12 June 1998 and 27 February 2001 the District Court held 9 hearings.
Following the hearing of 27 February 2001, on the same day, the District Court granted a major part of the applicant’s claim and dismissed the remainder. The defendant appealed to the Regional Court.
The Regional Court scheduled hearings on the appeal for 27 October and 8 December 2003 and 15 March 2004, but they all had to be adjourned due to the defendant’s absence.
On 24 February 2005 the Regional Court quashed the judgment of 27 February 2001 and discontinued the proceedings. It observed that the defendant had been erased from the Commercial Register (Obchodný register) (see below). Consequently, the defendant no longer had legal capacity to be a party to court proceedings and this procedural obstacle could not be overcome. The decision became final and binding on 21 April 2005.
2. Insolvency and liquidation
On 20 February 2002 the Regional Court dismissed an insolvency petition against R. on the ground that the defendant had no assets. The ruling became final and binding on 21 March 2002.
On 24 March 2004 R. was erased from the Commercial Register and thereby legally ceased to exist. It had no legal successor.
3. Constitutional complaint
On 31 January 2005 the applicant lodged a complaint under Article 127 of the Constitution with the Constitutional Court (Ústavný súd) in respect of the length of the proceedings in his action. He directed the complaint against both the District Court and the Regional Court.
On 22 June 2005 the Constitutional Court declared the complaint inadmissible.
The Constitutional Court held that that the complaint was belated in so far as it concerned the District Court since the part of the proceedings which had taken place before that court had ended with the judgment of 2001. However, the constitutional complaint had been introduced on 31 January 2005, which was outside the two month time-limit applicable under section 53 (3) of the Constitutional Court Act.
The Constitutional Court held that the remainder of the applicant’s complaint, which concerned the Regional Court, was manifestly ill-founded. It was observed that the proceedings before the Regional Court were in fact still pending and that the Regional Court had been inactive during a considerable period of time. However, as the defendant had been liquidated without a legal successor being designated, the only legally permissible and practically foreseeable outcome of the proceedings was their discontinuation under Article 107 § 1 of the CCP. Although the Regional Court had failed to discontinue the proceedings as indicated above and, on the contrary, had taken several other procedural steps, these could only delay but not alter the termination of the proceedings. These considerations led the Constitutional Court to conclude that there could be no violation of the applicant’s rights.
COMPLAINTS
1. The applicant complained under Article 6 § 1 of the Convention that the length of the proceedings had been excessive.
2. The applicant also complained under Article 13 of the Convention that he had no effective remedy at his disposal in respect of the length of the proceedings.
THE LAW
A. Length of proceedings
The applicant complained that the length of the proceedings had breached 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 ... hearing within a reasonable time by [a] ... tribunal...”
By letter dated 22 October 2007 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this complaint. They further requested the Court to strike out this part of the application in accordance with Article 37 § 1 (c) of the Convention.
The declaration provided as follows:
“The Government acknowledge both the applicant’s status of the victim within the meaning of Article 34 of the Convention and the unreasonable duration of the domestic proceedings in which the applicant was involved.
I, Marica Pirošíková, the Agent of the Government of the Slovak Republic before the European Court of Human Rights, declare that the Government offer to pay ex gratia to the applicant Mr Roman Töviš the sum of EUR 7,000 (seven thousand euros). This sum shall cover any pecuniary and non-pecuniary damage together with any costs and expenses incurred by the applicant with respect to the violation of his right under the Convention.
The Government would suggest that the above information might be accepted by the Court as “any other reason” justifying the striking out of the case out of the Court’s list of cases, as referred to in Article 37 § 1 (c) of the Convention.
In the event of the Court’s decision pursuant to Article 37 § 1 of the Convention, the Government undertake to pay to the applicant the declared sum within three months from the date of notification of the decision. This sum will be converted into Slovakian korunas at the rate applicable on the date of payment, and free of any taxes that may be applicable. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. This payment will constitute final settlement of the case.”
The applicant in his written reply dated 9 November 2007 rejected the Government’s initiative without offering any reasons.
The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
The Court also recalls that under certain circumstances, it may strike out an application under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued. To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (see Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; Meriakri v. Moldova ((striking out), no. 53487/99, 1 March 2005; Swedish Transport Workers Union v. Sweden ((striking out), no. 53507/99, 18 July 2006; and Van Houten v. the Netherlands ((striking out), no. 25149/03, ECHR 2005 IX).
The Court has established in a number of cases its practice concerning complaints about the violation of one’s right to a hearing within a reasonable time (see, for example, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006 ....). Furthermore, it has already had occasion to address complaints related to alleged breach of one’s right to a hearing within a reasonable time in cases against the Slovak Republic (see, for example, Kuril v. Slovakia, no. 63959/00, §§ 35-43, 3 October 2006; Rišková v. Slovakia, no. 58174/00, §§ 88-97, 22 August 2006 or Sika v. Slovakia, no. 2132/02, §§ 28-35, 13 June 2006).
Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed (which is consistent with the amounts awarded in similar cases), the Court considers that it is no longer justified to continue the examination of the relevant part of the application (Article 37 § 1 (c)) (see, for the relevant principles, Tahsin Acar as cited above; Haran v. Turkey, no. 25754/94, judgment of 26 March 2002 and also Felbert v. Slovakia (dec.), no. 14081/03, 19 June 2007 and Zemanová v. Slovakia (dec.), no. 32494/05, 11 September 2007). Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this part of the application (Article 37 § 1 in fine). Accordingly, it should be struck out of the list.
B. Remaining complaint
The applicant also complained of the absence of an effective remedy contrary to Article 13 of the Convention, which provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Court reiterates that the word “remedy” within the meaning of Article 13 of the Convention does not mean a remedy which is bound to succeed, but simply an accessible remedy before an authority competent to examine the merits of a complaint (see, mutatis mutandis, Bensaid v. the United Kingdom, no. 44599/98, § 56, ECHR 2001-I).
The complaint under Article 127 of the Constitution is in principle considered “effective” in the Convention sense in respect of excessive length of proceedings (see, for example, Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01 and 60226/00, ECHR 2002 IX and Obluk v. Slovakia, no. 69484/01, § 60, 20 June 2006).
Although the applicant’s constitutional complaint did not provide him with any redress, the Court does not find enough grounds in this case for holding this remedy to be ineffective within the meaning of Article 13 of the Convention.
It follows that the remainder of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
C. Article 29 § 3 of the Convention
In view of the above conclusions, it is appropriate to discontinue the application of Article 29 § 3 of the Convention.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in so far as it concerns the length of the proceedings complaint, in accordance with Article 37 § 1 (c) of the Convention; and
Declares the remainder of the application inadmissible.
Fatoş AracıNicolas Bratza
Deputy RegistrarPresident
Full & Egal Universal Law Academy