Application no. 3585/02
by Dušan KONČEK
The European Court of Human Rights (Fourth Section), sitting on 12 September 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 Mrs F. Elens-Passos, Deputy Section Registrar,
Having regard to the above application lodged on 17 November 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 parties’ formal declarations accepting a friendly settlement of the case,
Having deliberated, decides as follows:
The applicant, Mr Dušan Konček, is a Slovakian national who was born in 1944 and lives in Košice. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Mrs A. Poláčková.
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Proceedings concerning the applicant’s dismissal
The applicant was dismissed from a job in a publishing house which had its registered office in Bratislava. He worked in the Košice branch office of the company. On 24 February 2000 the applicant challenged the lawfulness of the termination of his contract of employment before the Košice I District Court.
In March, April and August 2000 the District Court unsuccessfully requested the defendant to submit comments on the claim together with relevant documents. As a result of its failure to comply the District Court imposed a procedural fine on the defendant on 3 August 2000. The defendant company submitted the relevant documents on 25 September 2000. It appealed against the decision to fine it. On 11 October 2000 the District Court exempted the company from the obligation to pay the fine.
On 16 November 2000 the Košice I District Court transmitted the file to the Bratislava I District Court as it considered that the case fell within the latter’s jurisdiction. On 27 November 2000 the Bratislava I District Court requested the Supreme Court to determine the court which had jurisdiction in the case. On 4 December 2000 the Supreme Court decided that the case was to be determined by the Bratislava II District Court. That decision became final on 31 May 2000. This was due to the fact that the defendant had been deleted from the companies’ register on 27 February 2001. The decision had therefore to be served on the defendant’s legal successor.
The file was transmitted to the Bratislava II District Court on 13 June 2001.
On 26 June 2001 the applicant was invited to specify his claims. He replied on 18 July 2001. The defendant was requested to submit comments. The mail was returned to the District Court on 17 September 2001 as the defendant’s address had changed.
Between 17 September 2001 and 4 October 2001 the file was examined by the Constitutional Court.
In November 2001 the judge asked for a document from the companies’ register, which was submitted on 21 December 2001.
On 23 February 2002 the applicant received a District Court’s notification of 15 January 2002 informing him that the company indicated in his action as defendant had ceased to exist and that a different company had become its successor. In the meantime, bankruptcy proceedings had been brought against the latter company.
On 27 February 2002 the applicant requested that the action be determined proposing that the administrator in bankruptcy of the company in issue was to act as defendant.
On 27 March 2002 the Bratislava II District Court informed the applicant that, due to the above fact, the proceedings concerning his claim had been stayed ex lege. The applicant received the notification on 8 April 2002.
On 28 March 2002 the applicant registered his claim with the Bratislava Regional Court in the context of the bankruptcy proceedings against the defendant company.
The bankruptcy proceedings are pending. The liquidator has regularly informed the Regional Court about the progress in liquidating the bankrupt company’s assets and about satisfying the creditors’ claims.
On 22 February 2006 the Regional Court in Bratislava refused to consider the applicant’s claim in the context of the bankruptcy proceedings on the ground that it had been registered out of time. On 24 March 2006 the applicant appealed. The file was submitted to the Supreme Court on 29 March 2006.
2. Constitutional proceedings
On 10 May 2001 the applicant complained to the Constitutional Court that the four courts involved in his case up until that date had violated his right to a hearing without unjustified delay.
On 25 October 2001 the Constitutional Court found that the Košice I District Court had violated the applicant’s above right. In particular, the Košice I District Court had failed to identify correctly the court which had jurisdiction in the case. As a result, there was an unjustified delay in the case between 19 June 2000 and 13 June 2001. At that time the Constitutional Court lacked competence to award just satisfaction to the applicant for the violation found.
On 11 October 2002 the applicant filed a complaint under Article 127 of the Constitution, as effective from 1 January 2002. He alleged that the Bratislava II District Court had failed to determine his case within a reasonable time.
The Constitutional Court rejected the complaint on 17 September 2003. The decision stated that the proceedings concerning the applicant’s claim had been stayed in accordance with the relevant law. For that reason, the fact that the District Court did not proceed with the case could not be qualified as an unjustified delay. To the extent that the applicant’s complaint concerned the period prior to staying the District Court proceedings for the above reason, the applicant should have filed his complaint before 8 April 2002, that is prior to the date when he was informed that the proceedings had been stayed.
The applicant complained that the length of the proceedings concerning his action had been excessive. He also complained that his right to a tribunal established by law had been violated in that the Supreme Court had erroneously decided that the case fell within the jurisdiction of the Bratislava II District Court. The applicant invoked Article 6 § 1 of the Convention.
On 8 August 2006 the Court received the following declaration signed by the Agent of the Government:
“I, Alena Poláčková, the Agent of the Government of the Slovak Republic before the European Court of Human Rights, declare that the Government of the Slovak Republic offer to pay 190,800 (one hundred and ninety thousand and eight hundred) Slovakian korunas to Mr Dušan Konček with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable and payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. 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. The payment will constitute the final resolution of the case.”
On 2 August 2006 the Court received the following declaration signed by the applicant:
“I, Dušan Konček, the applicant, note that the Government of the Slovak Republic are prepared to pay me the sum of 190,800 (one hundred and ninety thousand and eight hundred) Slovakian korunas with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable and payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
I accept the proposal and waive any further claims against Slovakia in respect of the facts giving rise to this application. I declare that this constitutes a final resolution of the case.”
The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols (Article 37 § 1 in fine of the Convention). Accordingly, Article 29 § 3 of the Convention should no longer apply to the case and it should be struck out of the list.
For these reasons, the Court unanimously
Decides to discontinue the application of Article 29 § 3 of the Convention and to strike the application out of its list of cases.
Françoise Elens-Passos Nicolas Bratza
Deputy Registrar President
KONČEK v. SLOVAKIA DECISION
KONČEK v. SLOVAKIA DECISION