CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 14 mai 2002

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Pastor Ridruejo ,   Mr   J. Makarczyk ,   Mrs   V. Strážnická ,   Mr   M. Pellonpää ,   Mr   R. Maruste ,   Mr   S. Pavlovschi , judges , and Mr M. O’Boyle , Registrar Having regard to the above application lodged with the European Commission of Human Rights on 23 March 1998 and registered on 18   May   1998, 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 partial decision of 13 January 2000, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows:   THE FACTS The applicant, Mr D.K., is a Slovakian national living in Košice. The respondent Government are represented by Mr   P.   Vršanský, their Agent. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. On 11 December 1996 the applicant lodged an action for protection of his good name and reputation with the Košice I District Court ( Okresný súd ). He claimed that his registration as a collaborator of the former secret police in the files kept by the Slovak Information Service had no justification. The applicant further requested that the entry concerning his person should be deleted from the files. On 8 January 1997 the District Court asked the Slovak Information Service to submit its memorial in the action. The defendant complied with the request on 28 January 1997. On 10 February 1997 the applicant submitted his observations in reply. He extended his action and asked the District Court to find that he had not been an agent of the former State Security. On 28 May 1997 the applicant requested the District Court to decide on his action. On 11 August 1997 the applicant complained to the president of the District Court that there had been no progress in his case. On 13 August 1997 the president of the District Court admitted that there had been delays in the proceedings due to the transfer of the judge dealing with the case to another court. On 20 August 1997 the applicant lodged a petition with the Constitutional Court ( Ústavný súd ) alleging that his case had not been heard within a reasonable time. On 2 September 1997 the applicant complained about undue delays in the proceedings to the president of the Košice Regional Court ( Krajský súd ). On 13 November 1997 the Košice I District Court held the first hearing in the case. On 18 November 1997 the applicant submitted documentary evidence to the District Court. On 7 January 1998 the Constitutional Court found that the applicant’s constitutional right to have his case examined without undue delays had been violated. It noted, in particular, that the District Court had failed to decide on the action for protection of the applicant’s personal rights within a year after its introduction as required by Section 200i (4) of the Code of Civil Procedure. On 15 January 1998 the Košice I District Court held another hearing and on 19 February 1998 it dismissed the applicant’s action. The judgment stated that the relevant facts of the case were secret and that the evidence available indicated that the action was manifestly ill-founded. On 30 March 1998 the applicant appealed to the Košice Regional Court. He alleged that the District Court had not established all relevant facts of the case. On 27 August 1998 the Supreme Court ( Najvyšší súd ) transferred the case to the Prešov Regional Court. On 30 October 1998 the Košice I District Court dismissed the applicant’s request for an exemption from the obligation to pay court fees. The applicant appealed. On 10 January 1999 the applicant informed the Prešov Regional Court that he wished to withdraw his action against the Slovak Information Service lodged on 11 December 1996 and requested that he be exempted from the obligation to pay court fees. On 24 February 1999 the Prešov Regional Court quashed the first instance judgment and discontinued the proceedings on the ground that the applicant had withdrawn his action concerning his claims that (i)   he had not been an agent of the State Security, (ii) he had been erroneously entered in the files of the State Security as a collaborator of the latter and (iii) the defendant be ordered to delete the entry concerning the applicant in the files of the former State Security. The Regional Court further upheld the District Court’s decision on the court fees of 30 October 1998 and ordered the applicant to pay the defendant’s fees. The decision became final on 19 April 1999. On 9 June 1999 the applicant complained to the president of the Prešov Regional Court that the appellate court had failed to decide on his claim that he had not been an agent of the former State Security. The applicant alleged, with reference to his earlier submissions, that he had not withdrawn this part of his action and asked the court to proceed with it without delay. On 11 August 1999 the president of the Prešov Regional Court replied to the applicant that the proceedings had been discontinued on 24 February 1999 and that there had been no undue delays in them. On 12 November 1999 the Ministry of Justice found unjustified the applicant’s complaint about delays in the proceedings. On 12 January and on 15 March 2000 the applicant filed a petition to the Constitutional Court. He alleged that he had not withdrawn his claim submitted on 15 February 1997 in extension of his original action. The Regional Court had failed to proceed with that part of the action and thus caused delays in the proceedings. On 30 March 2000 the Constitutional Court dismissed the petition. It held that it was evident from the Regional Court’s decision of 24 February 1999 that the appellate court had interpreted the applicant’s submission of 10 January 1999 as concerning his action as a whole and that the proceedings had been discontinued in respect of all his claims. The applicant’s expectation that the Prešov Regional Court would proceed with the examination of one of his claims after the delivery of the decision of 24   February 1999 was therefore ill-founded. The applicant’s constitutional right to a hearing without delays could not have been therefore violated as a result of the Regional Court’s failure to proceed with the case after 24   February 1999.   The Constitutional Court’s decision further stated that it had been open to the applicant to seek redress by means of an appeal on points of law after he had learned from the appellate court’s decision that his submission of 10 January 1999 had been misinterpreted. B.     Relevant domestic law and practice Pursuant to Section 237 (f) of the Code of Civil Procedure, an appeal on points of law may be lodged against a decision of the court of appeal if a party to the proceedings was prevented from acting before the court due to a wrong court procedure. Section 240 (1) provides that an appeal on points of law can be lodged within one month after the appellate court’s decision has become final. In accordance with the Supreme Court’s case-law, the possibility of filing an appeal on points of law pursuant to Section 237 (f) of the Code of Civil Procedure extends to cases when the merits of an action have not been examined as a result of an erroneous action of the court. COMPLAINTS The applicant complains under Article 6 § 1 of the Convention that the proceedings concerning his case lasted unreasonably long and that his right   of access to a court was violated as the Prešov Regional Court did not decide on one of his claims. THE LAW 1. The applicant complains that his right of access to a court guaranteed by Article 6 § 1 of the Convention was violated as the Prešov Regional Court did not decide on one of his claims. The Court notes that it was open to the applicant to seek redress in this respect by means of an appeal on points of law pursuant to Section 237 (f) of the Code of Civil Procedure. However, the applicant did not use such a remedy. It follows that this complaint must be rejected under Article   35 §§   1 et   4 of the Convention for non-exhaustion of domestic remedies. 2. The applicant further complains under Article 6 § 1 of the Convention about the length of the proceedings concerning his case. The Government first object that the applicant failed to exhaust domestic remedies as he did not claim compensation for damage pursuant to the relevant provisions of the State Liability Act of 1969. They further argue that this part of the application is inadmissible as the applicant waived his rights under Article 6 § 1 in that he withdrew his action. The applicant contends that he exhausted all available remedies and that his rights under Article 6 § 1 were affected as he withdrew only a part of his action. As to the objection that the applicant failed to exhaust domestic remedies in that he did not lodge an action for damages under the State Liability Act of 1969, the Court has previously found that this remedy need not be exhausted for the purposes of Article 35 § 1 of the Convention as it neither offers reasonable prospects of success nor is it capable of providing direct protection for the right to a hearing within a reasonable time guaranteed by Article 6 § 1 of the Convention as required by the relevant case-law (see, e.g., Havala v. Slovakia (dec.), no. 47804/99, 13 September 2001, unreported). It sees no reason for reaching a different conclusion in the present case.   The Court further notes that the Government’s argument according to which this part of the application is inadmissible as the applicant withdrew his action and thereby waived his rights under Article 6 § 1 is based on a false factual premise as it appears from the applicant’s submissions that he only withdrew a part of his action. Accordingly, the Government’s above two objections must be dismissed. As to the merits of the case, the Government admit, with reference to the Constitutional Court’s finding of 7   January 1998, that the applicant’s right under Article 6 § 1 of the Convention to a hearing within a reasonable time was breached. The applicant alleges that the proceedings lasted unreasonably long. He points out, in particular, that the Regional Court failed to decide on one of his claims and caused thereby considerable delays in the proceedings.   The proceedings complained of started on 11 December 1996. The period to be taken into consideration ended on 24 February 1999 when the Prešov Regional Court discontinued the proceedings on the ground that the applicant had withdrawn his action. It is evident from the Regional Court’s decision that it related to all claims submitted by the applicant. Therefore, the applicant’s argument that the proceedings have extended beyond 24   February 1999 cannot be upheld. Accordingly, the period to be considered lasted two years, two months and thirteen days. The assertion of the Government that the length of the proceedings was in violation of the reasonable time requirement laid down in Article 6 § 1 of the Convention is a statement concerning the merits of the application which cannot be relied upon by the Court, even at the stage of admissibility, without an independent assessment of the case (see, e.g., the H. v. France judgment of 24 October 1989, Series A no. 162, p. 20, § 47 and also Ganchev v. Bulgaria, application no. 28858/95, Commission decision of   25   November 1996, Decisions and Reports 87, p. 130). The Court has examined the overall length of the proceedings in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicants’ conduct and that of the competent authorities as well as what was at stake for the applicant). Having regard to all the information in its possession it finds that the proceedings in question did not last unreasonably long despite the fact that certain delays in them were admitted by the domestic authorities. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and   4 of the Convention. For these reasons, the Court unanimously Declares inadmissible the remainder of the application.   Michael O’Boyle   Nicolas Bratza   Registrar   President