CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 8 novembre 2005

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Bonello ,   Mr   K. Traja ,   Mr   S. Pavlovschi ,   Mr   L. Garlicki ,   Ms   L. Mijović ,   Mr   J. Šikuta, judges , and Mrs F. Elens-Passos , Deputy Section Registrar , Having regard to the above application lodged on 10 November 2000, 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 observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, Ms Marcela Chlebovičová, is a Slovakian national who was born in 1983 and lives in Košice. She is represented before the Court by Ms I. Rajtáková, a lawyer practising in Košice. The respondent Government were represented by their Agent, Mr   P.   Kresák, succeeded by Ms A. Poláčková. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. 1.     Maintenance proceedings On 16 November 1998 the applicant claimed an increase in maintenance which her father had been earlier ordered to pay to her. At that time the applicant’s father held the post of Vice-President of the Košice - okolie District Court. On 15 January 1999 the Košice II District Court heard the applicant’s mother with a view to establishing whether the applicant, then under age, acted through her intermediary. Four judges of the Košice II District Court dealing with similar issues considered themselves biased as they knew the defendant. On 12   March   1999 the case-file was therefore submitted to the Košice Regional Court with a view to determining whether the Košice II District Court judges were to be excluded. All Regional Court judges but for one also considered that they lacked impartiality. The case was therefore submitted to the Supreme Court on 12   May 1999. On 24 May 1999 the Supreme Court transferred the case to the Regional Court in Žilina. The latter court received the file from the Regional Court in Košice on 4 August 1999. The Supreme Court’s decision was served on the parties on 9 June 1999. On 10 September 1999 the Žilina Regional Court asked all judges of the Košice II District Court to state whether or not they considered themselves biased. Statements of 27 judges of the District Court were submitted to the Regional Court in Žilina on 25 November 1999. On 28 January 2000 the Regional Court in Žilina ordered the Michalovce District Court to determine the applicant’s action. That decision was served on the parties in the second half of March 2000. The file was transmitted to the District Court in Michalovce on 3 April 2000. On 6 April 2000 the Michalovce District Court judge involved stated that he considered himself biased. Subsequently the other judges of that court made a statement to the same effect on the ground that they knew the defendant or his new partner. On 27 September 2000 the Michalovce District Court sent the file back to the Regional Court in Žilina. On 5 October 2000 the Regional Court excluded ten Michalovce District Court judges from dealing with the case. The file was returned to the District Court in Michalovce on 30   October   2000. In the course of January 2001 the Michalovce District Court obtained information about income of the applicant’s parents. On 2 March 2001 the District Court appointed a guardian to represent the interests of the applicant in the proceedings. On 15 March 2001 it heard the applicant’s mother. After it had obtained further evidence, the District Court heard the defendant and the applicant on 5 April 2001. On 23 April 2001 the Michalovce District Court granted in part the applicant’s action. The applicant, who reached full age in the meantime, appealed on 22 May 2001. On 21 August 2001 the defendant submitted his observations in reply to the appeal. The file was transmitted to the Regional Court on 17 September 2001. After it had obtained further evidence the Regional Court, on 12   December 2001, quashed the first instance judgment and instructed the District Court to take further evidence. The decision stated that the District Court had failed to establish all relevant facts correctly. It was served on the applicant on 7 March 2002. In March 2002 the District Court obtained new evidence. It heard the applicant and her mother on 17 April 2002. Further information concerning the situation of the parties was obtained in the course of May 2002 and in August 2002. At a hearing held on 4 September 2002 the applicant requested that further evidence should be taken concerning the situation of the defendant. The relevant information was submitted to the District Court in September   2002. The District Court also requested a third court to hear the defendant. The defendant was heard on 8 November 2002. On 11 December 2002 the Michalovce District Court delivered a new judgment on the merits in which it increased the maintenance to which the applicant was entitled. On 28 February 2003 the defendant appealed. On 19 March 2003 the District Court ordered the defendant to complete his appeal. The applicant submitted her observations in reply on 17 April 2003. On 29 April   2003 the case was transmitted to the Žilina Regional Court. On 13 May 2003 the file was sent back to the Michalovce District Court as a date in the operative part of its judgment had to be corrected. That shortcoming was remedied on 28 May 2003, and the amended decision was served on the parties on 2 and 16 June 2003 respectively. Between 2 and 24 July 2004 the file was examined by the Constitutional Court to whom the applicant had filed a complaint in the meantime. On 10 September 2003 the Žilina Regional Court upheld the first instance decision on the merits of the case. The Regional Court further ordered the District Court to adjudicate anew on the costs of the proceedings. On 14 November 2003 the District Court asked the applicant’s lawyer to specify the costs. The lawyer replied on 25 November 2003. In February   2004 the District Court asked for further information on the matter. The information was submitted to it on 8 and 10 March 2004. The District Court decided on the costs of the proceedings on 11   March   2004. The defendant appealed on 6 April 2004. On 9 July 2004 the Žilina Regional Court modified the first instance decision on the parties’ costs. 2.     Proceedings before the Constitutional Court On 28 February 2003 the applicant filed a complaint to the Constitutional Court pursuant to Article 127 of the Constitution. She alleged, inter alia , a violation of her right to a hearing without undue delay by a tribunal established by law. On 9 October 2003 the Constitutional Court rejected the applicant’s complaint. As regards the applicant’s complaint that her right to a hearing by a tribunal established by law had been violated, the Constitutional Court found that the applicant had not challenged the composition of the court which determined her action by means of an appeal against the Michalovce District Court’s judgment of 11 December 2002. As regards the alleged violation of the applicant’s right to a hearing without undue delay, the decision stated that the Košice II District Court, the Košice Regional Court and the Supreme Court had finished dealing with the case before the applicant filed her complaint to the Constitutional Court on 28 February 2003. The relevant part of her complaint was therefore manifestly ill-founded. The Constitutional Court further held that the Michalovce District Court had delivered its judgment on the merits on 11 December 2002, that is prior to introduction of the applicant’s complaint under Article 127 of the Constitution, and that it could not further deal with the case as the appellate court had upheld that judgment. The Constitutional Court therefore found no link permitting it to entertain the applicant’s complaint to the extent that it concerned the length of the proceedings before the Michalovce District Court. Finally, the Constitutional Court’s decision stated that the Žilina Regional Court had decided on the applicant’s appeal on 10   September   2003, that is after less than five months. The length of the proceedings before the Žilina Regional Court was therefore not excessive. B.     Relevant domestic law and practice Article 48(2) of the Constitution provides, inter alia , that every person has the right to have his or her case tried without unjustified delay. Pursuant to Article 130(3) of the Constitution, as in force until 30   June   2001, the Constitutional Court could commence proceedings upon a petition (“ podnet ”) presented by any individual or a corporation claiming that their rights had been violated.   According to its case-law under former Article   130(3) of the Constitution, the Constitutional Court lacked jurisdiction to draw legal consequences from a violation of a petitioner’s rights under Article 48(2) of the Constitution. It could neither grant damages to the person concerned nor impose a sanction on the public authority liable for the violation found. In the Constitutional Court’s view, it was therefore for the authority concerned to provide redress to the person whose rights were violated. As from 1 January 2002, the Constitution has been amended in that, inter alia , individuals and legal persons can complain about a violation of their fundamental rights and freedoms pursuant to Article 127. Under this provision the Constitutional Court has the power, in the event that it finds a violation of Article 48(2) of the Constitution, to order the authority concerned to proceed with the case without delay. It may also grant adequate financial satisfaction to the person whose constitutional rights have been violated as a result of excessive length of proceedings (for further details see, e.g., Andrášik and Others v.   Slovakia (dec.), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01, 60226/00, 22   October   2002). COMPLAINTS 1.     The applicant complained under Article 6 § 1 of the Convention that (i) the length of the proceedings concerning her maintenance had been excessive and (ii) her right of access to a court and to a hearing by a tribunal established by law had been violated in that the courts concerned had failed to duly examine whether reasons existed for excluding judges of the courts in Košice whereby the proceedings had been unjustifiably prolonged. 2.     Under Article 13 of the Convention the applicant complained that she had no effective remedy at her disposal in respect of her complaints under Article 6 § 1 of the Convention. THE LAW 1.     The applicant complained that her right to a fair hearing within a reasonable time had been violated in the proceedings concerning her maintenance. She alleged a violation of Article 6 § 1 of the Convention the relevant part of which reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time by a[n] ... tribunal established by law...” a)     The Government contended that there had been no unjustified delays in the proceedings imputable to domestic courts. The applicant disagreed. She argued, in particular, that the courts had not proceeded with the case in an appropriate manner and with due diligence when determining whether their judges were to be excluded. As a result, more than two years had elapsed from the introduction of the proceedings until the Michalovce District Court had started examining the applicant’s claim. The length of the subsequent period was due to various shortcomings in the proceedings imputable mainly to the District Court. In particular, that court had failed to establish the relevant facts in an efficient and reliable manner. Finally, the applicant argued that the conduct of the parties had not contributed in a significant manner to the length of the proceedings. The period to be taken into consideration began on 16 November 1998 and ended on 9 July 2004 by the appellate court’s decision on the costs of the proceedings. It thus lasted 5 years, 7 months and 23 days. The Court notes that the determination of the merits of the applicant’s claim lasted until 10 September 2003, that is 4 years, 9 months and 24 days. During this period two appellate courts and the Supreme Court dealt with the case with a view to deciding on the exclusion of judges and, thereafter, courts at two levels twice examined the case with a view to determining the merits. In addition, certain aspects of the case were also examined by the Constitutional Court. Following the delivery of the decision on the merits, courts at two levels of jurisdiction decided on the parties’ costs. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender   v   France [GC], no. 30979/96, § 43, ECHR 2000-VII). A delay at some stage may be tolerated if the overall duration of the proceedings cannot be deemed excessive (see, for example, Pretto and Others v. Italy , judgment of 8 December 1983, Series A no. 71, p. 16, § 37). The Court accepts the applicant’s argument that there had been certain delays in the proceedings due, in particular, to the way in which the question of the exclusion of judges was being determined. However, having regard to the documents before it and to its case-law on the subject, the Court considers that in the instant case the overall length of the proceedings was not contrary to the reasonable time requirement laid down in Article   6   §   1 of the Convention. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. b)     The applicant also complained that her right of access to a court and to a hearing by a tribunal established by law had been violated in that the courts concerned had failed to duly examine whether reasons existed for excluding judges of the courts in Košice whereby the proceedings had been unjustifiably prolonged. The Court has above considered the impact which the deciding on exclusion of judges might have had on the length of the proceedings in issue. It further notes that the domestic courts ultimately granted the applicant’s claim for an increase in maintenance which her father was obliged to pay to her. In these circumstances, she can no longer claim to be a victim, within the meaning of Article 34 of the Convention, of a violation of her right to a fair hearing by a tribunal within the meaning of Article   6   §   1. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and   4 of the Convention. 2.     Finally, the applicant complained that she had no effective remedy at her disposal in respect of her complaints under Article 6 § 1. She relied on Article 13 of the Convention which reads as follows: “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.” According to the Court’s case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom , judgment of 27 April 1988, Series A no. 131, § 52). The Court has above found that the applicant’s complaints under Article   6 § 1 were inadmissible as being manifestly ill-founded. For similar reasons, the applicant did not have an “arguable claim” and Article   13 is therefore inapplicable to her case. This part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4. For these reasons, the Court unanimously Decides to discontinue the application of Article 29 § 3 of the Convention and declares the application inadmissible. Françoise Elens-Passos   Nicolas Bratza Deputy Registrar   President