CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 mars 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                           Application No. 25006/94                       by I.S.                       against the Slovak Republic        The European Commission of Human Rights (Second Chamber) sitting in private on 4 March 1996, 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                  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 3 May 1994 by I.S. against the Slovak Republic and registered on 25 August 1994 under file No. 25006/94;        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 26      March 1996 and the observations in reply submitted by the      applicant on 16 May 1996;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a Slovak national born in 1956.   He is an electrician and resides in Zilina.   Before the Commission he is represented by Mr. F. Feník, a commercial lawyer practising in Zilina.        The facts of the case, as submitted by the parties, may be summarised as follows.     A.    The particular circumstances of the case        On 19 November 1991 the applicant and four other persons lodged a claim for restitution of land with the Zilina District Court (Okresny súd) against two state enterprises.   On 23 March 1992 the first hearing was held.   On 21 January 1993 the Court ordered an inspection of the site for 9 February 1993.   On 9 February 1993 the Court asked the applicant to designate a new defendant.   On 8 March 1993 the applicant urged the judge to decide the case as soon as possible.        On 7 April 1993 the applicant complained of delays in the proceedings with the President of the Zilina District Court.   He referred to Sections 5 and 6 of the Courts and Judges Act No. 335/1991 (Zákon o súdoch a sudcoch) and to Section 6 of the Code of Civil Procedure (Obciansky súdny poriadok).   He also requested the exclusion of the judge on the ground that she was concerned by the complaint about unnecessary delays in the proceedings.        On 31 May 1993 the Banská Bystrica Regional Court (Krajsky súd) dismissed the request for the exclusion of the judge.   On 27 August 1993 the decision was served on the applicant.   On 25 November 1993 the Supreme Court (Najvyssí súd) rejected the applicant's appeal for lack of jurisdiction and held that the Regional Court's decision of 31 May 1993 was final.   On 1 February 1994 the case file was sent to the Zilina District Court.        As the applicant did not receive any reply as regards his complaint about delays in the proceedings, he lodged another complaint with the Ministry of Justice on 10 August 1993.   The complaint was transmitted to the President of the Zilina District Court.        On 29 September 1993 the President of the Zilina District Court informed the applicant that his complaint had been considered as a request for exclusion of the judge and that it had not been dealt with without undue delay.   He also noted that the restitution proceedings could not be pursued as one of the co-plaintiffs had died (on 15 May 1993) and separate proceedings relating to her estate had to be terminated first.        On 19 October 1993 the President of the Banská Bystrica Regional Court upheld, in reply to the applicant's complaint of 10 August 1993, the position of the Zilina District Court's President.        On 8 February 1994 the Zilina District Court again asked the applicant to designate the new defendant which he did on 16 February 1994.   On 12 August 1994 the Court informed the applicant that his designation was not sufficient and requested him to specify it within seven days.   The applicant did this on 19 August 1994.        On 26 April, 25 and 31 May, 7 and 27 June 1995 the Zilina District Court adjourned the trial for procedural reasons until 25 and 31 May, 7, 27 June and 15 September 1995, respectively.   The applicant and his lawyer were not present at the hearing of 7 June 1995.        On 15 September 1995 the Zilina District Court requested an expert to establish the boundaries of the plot at issue and to draw a plan.   On 8 January 1996 the expert presented his report.        On 18 January 1996 the Zilina District Court, after hearing the co-plaintiffs' submissions, again adjourned the trial.        On 30 January 1996 the Zilina District Court decided in favour of the applicant.        From the applicant's most recent submissions it appears that on 11 April 1996 the co-plaintiffs appealed to the Banská Bystrica Regional Court, which on 30 May 1996 quashed the decision of 30 January 1996 and referred the case back to the Zilina District Court.   The written decision was notified to the Zilina District Court and the applicant on 4 October and 26 November 1996 respectively.     B.    The 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, the courts are to examine cases in cooperation with all participants so that, inter alia, the protection of rights is expeditious and effective.        According to Section 5 para. 1 of the Courts and Judges Act No. 335/1991, as amended, judges are required to decide, inter alia, without delay.   Under Section 6 a 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, President and Vice-President of the Supreme Court and Presidents and Vice-Presidents of Regional and District Courts) with complaints only in cases of delayed proceedings or misconduct caused by improper performance 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 a complaint is to be terminated within two months, and an applicant is to be informed in writing about the conclusion.   After the complaint has been dealt with by the President of a District Court, the applicant is entitled to request a review of the conclusion by the President of an appropriate Regional Court.        According to Article 130 para. 3 of the Constitution, the Constitutional Court (Ústavny súd) can commence proceedings upon the "podnet" presented by any individual or a corporation claiming that his or its 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 damage caused by erroneous official acts committed by persons who carry out tasks vested in State organs.   COMPLAINTS        The applicant complains that his case has been dealt with by a judge who lacked independence and impartiality and that his claim for restitution of real property has not been decided within a reasonable time.   He alleges a violation of Article 6 para. 1 of the Convention.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 3 May 1994 and registered on 25 August 1994.        On 17 January 1996 the Commission decided to communicated 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 26 March 1996.   The applicant's observations in reply were submitted on 16 May 1996.     THE LAW   1.    The applicant complains, under Article 6 para. 1 (Art. 6-1) of the Convention, that his claim for restitution of real property has not been decided within a reasonable time.        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 first submit that the application, insofar as it relates to events prior to 18 March 1992, the date of ratification of the Convention by the former Czech and Slovak Federal Republic, is outside the competence ratione temporis of the Commission.            The Government further 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 a Constitutional Court's judgment of 25 October 1995.   They add that a finding by the Constitutional Court of a violation of a fundamental right or freedom entitles the person concerned to claim damages under Act No. 58/1969.        The applicant claims that the remedies referred to by the Government have been exhausted.   He submits that on 7 April 1993 he complained of delays in the proceedings with the President of the Zilina District Court with reference to Sections 5 and 6 of the Courts and Judges Act No. 335/91 and to Section 6 of the Code of Civil Procedure.   At the same time,   he requested the exclusion of the judge.        As regards the Government's allegation that he did not lodge his complaint in conformity with the provisions of Section 17 of Act No. 80/1992, the applicant replies that what is decisive is the content of the petition and not the specific legal provision to which it refers.   He underlines that he addressed his complaint to the competent person, i.e. the President of the Zilina District Court.   Pursuant to Section 25 of Act No. 80/1992, the statutory time limit for dealing with a complaint is two months.   As the President of the Zilina District Court had not replied within such time limit, on 10 August 1993 the applicant sent his complaint to the Ministry of Justice which promptly referred it to the President of the Banská Bystrica Regional Court.   The President of the Zilina District Court answered the applicant's representative by letter of 29 September 1993 and noted that his complaint of 7 April 1993 was qualified as a complaint against the bias of the judge.   However, the applicant emphasises that this letter was sent in response to the complaint which had been referred to the Ministry of Justice; it did not reply to his original complaint of 7 April 1993.        With regard to the Government's allegation that he failed to lodge a "podnet" with the Constitutional Court, the applicant submits that there is no clear legal guarantee of the right for a claimant to effectively claim the protection of his right under Article 48 para. 2 of the Constitution.        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 which was 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.   In fact, on 7 April 1993 he complained of delays in the proceedings with the President of the Zilina District Court with reference to Sections 5 and 6 of Act No. 335/1991 and to Section 6 of the Code of Civil Procedure.   The fact that in his complaint the applicant did not expressly refer to Act No. 80/1992 cannot affect his intention to challenge a delay in the proceedings and, accordingly, to accelerate them.        As regards the "podnet", the Commission recalls that that remedy can give rise to a declaration of excessive length of proceedings, but it is not capable of accelerating the proceedings which are still pending (cf. No. 25189/94, Prelozník v. the Slovak Republic, Dec. 15.1.97).        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 provide satisfaction in regard to 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 contend that the restitution claim in question involved legal issues of complex nature.   The Zilina District Court proceeded with the case without unreasonable delay and gave its judgment within a reasonable period of time.   The first hearing was held on 23 March 1992, and on 21 January 1993 the inspection of the site was ordered.   Further hearings were held on 26 April, 25 and 31 May, 7 and 27 June 1995.   On 8 January 1996 an expert, who was appointed on 15 September 1995, submitted a report, and the judgment was given on 30 January 1996.   The applicant's conduct also contributed to the length of the proceedings.   In particular, he had presented an amended claim concerning the extension of the restitution claim to a new defendant, requested by the judge on 9 February 1993, one year and six months later.   The applicant himself failed to cooperate with the Court by complying with its requirements. Furthermore, he appealed against the decision of the Banská Bystrica Regional Court, even though no appeal was admissible against this judgment.        The applicant objects to the Government's observations. He submits that the case is not as complex as the Government contend.   He also claims that the reason for not lodging any amended claim between 9 February and 30 June 1993 was the fact that the first defendant had a legal status and that there was no argument to include the third defendant in the proceedings.   In his view, the five successive hearings in 1995 at the Zilina District Court were influenced by his complaint of the length of proceedings brought before the President of the Zilina District Court, the President of the Banská Bystrica Regional Court and the Ministry of Justice, and by his application lodged with the European Commission of Human Rights.        The Commission notes that the relevant period did not begin as from the institution of the restitution proceedings in November 1991, but only as from 18 March 1992 when the former Czech and Slovak Federal Republic ratified the Convention and recognised the right of individual application.   However, in assessing the reasonableness of the time that elapsed after 18 March 1992, account must be taken of the state of proceedings at that time (cf. Eur. Court HR, the Baggetta v. Italy judgment of 25 June 1978, Series A no. 119, p. 32, para. 20).   The proceedings are still pending before the Zilina District Court.   The period to be considered thus amounts to four years and eleven months.        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.   2.    The applicant also complains, under Article 6 para. 1 (Art. 6-1) of the Convention, that his case has been dealt with by a judge who lacked independence and impartiality.        The Commission observes that the restitution proceedings are still pending before the Zilina District Court.   Thus, the applicant's claim is premature.        It follows that this part of the application must be rejected in accordance with Article 27 (Art. 27) of the Convention.        For these reasons, the Commission, by a majority,          DECLARES ADMISSIBLE, without prejudging the merits of the case,      the applicant's complaint concerning the length of the civil      proceedings;        DECLARES INADMISSIBLE the remainder of the application.        M.-T. SCHOEPFER                               G.H. THUNE         Secretary                                   President    to the Second Chamber                       of the Second Chamber