AS TO THE ADMISSIBILITY OF
Application no. 1387/02
by Marko STOLÁRIK
The European Court of Human Rights (Fourth Section), sitting on 16 May 2006 as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr J. Casadevall,
Mr M. Pellonpää,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović,
Mr J. Šikuta, judges,
and Mr O’Boyle, Section Registrar,
Having regard to the above application lodged on 16 December 2001,
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 applicant, Mr Marko Stolárik, is a Slovakian national who was born in 1943 and lives in Košice. The respondent Government were represented by Mrs A. Poláčková, their Agent.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Criminal proceedings against Š.
On 1 March 1996 criminal proceedings were brought against Š. who was suspected of fraud. On 15 March 1996 the applicant’s wife joined the proceedings with a claim for damages.
The main hearing scheduled for 7 June 1996 had to be adjourned as the accused person had failed to appear.
The accused was remanded in custody on 27 September 1996. On the same day he admitted before the Košice II District Court judge that he owed the sum in question to the applicant’s wife.
Hearings in the criminal case were held on 18 October 1996 as well as on 8 and 26 November 1996. In the meantime, on 6 November 1996, the accused was released from detention on remand.
On 6 December 1996 the case was adjourned as the assessors were absent.
Between 25 March 1997 and 3 October 1997 the District Court scheduled 9 hearings. The accused failed to appear at the last two hearings. At these hearings the case was not proceeded with for various reasons, mainly due to the absence of an assessor but also because of the absence of witnesses.
In the meantime criminal proceedings were brought against Š. before the Košice I District Court for similar offences imputed to him and another person. On 1 October 1997 the Košice Regional Court decided that all charges against Š. and the other person should be determined by the Košice II District Court in a single set of proceedings.
On 17 November 1998 the case was adjourned.
On 25 November 1998 the applicant’s wife died. The heirs concluded an agreement according to which her estate passed to the applicant.
On 30 March 1999 the case was adjourned as the other accused had not appeared. On 9 November 1999 the accused was remanded in custody, but the Košice Regional Court ordered his release on 16 December 1999.
Neither accused person appeared before the Košice II District Court on 17 March 2000. The District Court therefore issued warrants which were submitted to the police on 23 and 27 March 2000 respectively.
Only one of the accused persons was brought by the police to a hearing scheduled for 13 July 2001. The police was unable to establish the whereabouts of Š., the other accused, who had earlier admitted that he owed a sum to the applicant’s wife. The District Court decided to deal with the charges against Š. separately. It returned the case concerning the other accused to the public prosecutor.
On 19 December 2001 the applicant confirmed to the District Court that, as heir of his late wife, he maintained the above claim for damages.
On 24 October 2003 the president of the Košice I District Court informed the Constitutional Court that the accused Š. had not yet been remanded. The letter stated that it was for the police to establish the whereabouts of that accused.
The proceedings are pending.
2. Constitutional proceedings
The applicant complained to the Constitutional Court that the Košice II District Court had violated his right under Article 48(2) of the Constitution to a hearing without unjustified delay in the criminal proceedings in which the above claim for damages was to be determined.
On 26 November 2003 the Constitutional Court delivered a finding concluding that there had been no violation of Article 48(2) of the Constitution.
The Constitutional Court first held, with reference to the Court’s case-law under Article 6 § 1 of the Convention, that the guarantees of Article 48(2) of the Constitution were applicable as the applicant’s civil right to compensation was to be determined in the context of criminal proceedings against Š.
As to the merits of the case, the Constitutional Court held that there had been only one significant delay of approximately eight months in the proceedings, namely during the period between 6 October 1997 and 17 November 1998. It further held that the proceedings had also been unduly delayed as a result of repeated adjournments of the case between December 1996 and September 1997. As to the period subsequent to 17 November 1998, the Constitutional Court found no delays in the proceedings which could be imputed to the District Court. In particular, the District Court had been unable to proceed with the case effectively as the accused had not been arrested pursuant to the warrant issued in March 2000, and the responsibility for arresting the accused lay with the police. The Constitutional Court explicitly noted that the applicant himself had not included that period among the unjustified delays for which he held the District Court responsible. The Constitutional Court found that the applicant had not contributed to the length of the proceedings. Despite the above delays imputable to the District Court, the overall length of the proceedings was principally due to the complexity of the case.
B. Relevant domestic law
Pursuant to section 20(1) of the Constitutional Court Act (Act 38/1993 Coll.), a petition for proceedings to be brought before the Constitutional Court shall indicate, inter alia, the party against whom it is directed and the decision which the plaintiff seeks to obtain.
With the exception of cases where the Act otherwise provides, the Constitutional Court is bound by a petition for proceedings to be brought before it (paragraph 3 of section 20).
The applicant complained under Article 6 § 1 of the Convention that the claim for damages filed in the context of criminal proceedings against Š. had not been determined within a reasonable time.
The applicant’ complaint relates to the length of the criminal proceedings in the context of which his late wife’s claim for damages is to be determined. He relies on 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...”
The civil claim originally filed by the applicant’s wife as an injured party still being a component of the pending criminal proceedings in issue, Article 6 § 1 of the Convention applies to those proceedings (Krumpel and Krumpelová v. Slovakia, no. 56195/00, § 41, 5 July 2005).
Since the applicant succeeded his deceased wife who had originally claimed damages in the context of the proceedings under examination, the relevant period started running on 15 March 1996 (see Cocchiarella v. Italy [GC], no. 64886/01, § 113, ECHR 2006-...). According to the information before the Court, the proceedings have not yet ended.
The Government contended that the applicant had not exhausted domestic remedies. They argued, in particular, that in his complaint to the Constitutional Court the applicant had indicated the Košice II District Court as the sole authority responsible for the alleged violation of his right to a hearing without unjustified delay. For reasons which were relevant, the Constitutional Court had concluded that, despite certain delays, the District Court had not violated the applicant’s right in issue. In particular, it pointed out that the failure to arrest the accused person could not be imputed to the District Court. As the Constitutional Court was bound by the specification by the applicant of the defendant in the proceedings before it, it could not examine whether the other authorities concerned had acted contrary to the applicant’s right to a hearing without unjustified delay.
The applicant disagreed. He argued that the District Court had not proceeded with the case in an appropriate manner and that it was responsible for several delays in the proceedings. As the case had not been formally returned to the prosecuting authorities, he had not been required to complain separately about their inactivity to the Constitutional Court.
According to Article 35 § 1 of the Convention, the Court may only deal with an issue after all domestic remedies have been exhausted. The purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, for example, Hentrich v. France, judgment of 22 September 1994, Series A no. 296-A, p. 18, § 33, and Remli v. France, judgment of 23 April 1996, Reports of Judgments and Decisions 1996-II, p. 571, § 33).
The Court has held that a complaint under Article 127 of the Constitution (as effective from 1 January 2002) is a remedy which persons complaining of unjustified delays in proceedings before Slovakian authorities should use (Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01, 60226/00, 22 October 2002).
The applicant in the present case used the constitutional remedy and he indicated the Košice II District Court as the authority responsible for the alleged violation. The Constitutional Court examined such complaint and concluded that, despite several delays indicated in its decision, the District Court had not violated the applicant’s right to a hearing within a reasonable time. It also held that, after the arrest warrant had been issued against the accused in March 2000, any failure by the prosecuting authorities to ensure compliance with that order could not be imputed to the District Court. The Constitutional Court explicitly noted that the applicant himself had not included that period among unjustified delays for which he held the District Court responsible.
In view of these facts, the Court accepts the Government’s argument according to which the applicant did not exhaust domestic remedies in that he failed to complain to the Constitutional Court about the failure by the prosecuting authorities to ensure the attendance of the accused person at hearings before the District Court.
As to the period between 15 March 1996 and 17 March 2000, the Court concurs with the conclusion of the Constitutional Court that, despite certain delays imputable to the District Court, its length is not contrary to the reasonable time requirement laid down in Article 6 § 1.
It follows that this complaint must be rejected under Article 35 §§ 1, 3 and 4 of the Convention partly for non-exhaustion of domestic remedies and partly as being manifestly ill-founded.
Having regard to the above conclusion, the application of Article 29 § 3 of the Convention to the case should be discontinued.
For these reasons, the Court by a majority
Declares the application inadmissible.
Michael O’Boyle Nicolas Bratza
STOLÁRIK v. SLOVAKIA DECISION
STOLÁRIK v. SLOVAKIA DECISION