AS TO THE ADMISSIBILITY OF
Application no. 51545/99
by Jozef ŠVOLÍK
The European Court of Human Rights (Fourth Section), sitting on 18 May 2004 as a Chamber composed of
Sir Nicolas Bratza, President,
Mr M. Pellonpää,
Mrs V. Strážnická,
Mr S. Pavlovschi,
Mr L. Garlicki,
Mr J. Borrego Borrego,
Mrs E. Fura-Sandström, judges,
and Mr M. O'Boyle, Section Registrar,
Having regard to the above application lodged on 10 September 1999,
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 Jozef Švolík, is a Slovakian national, who was born in 1933 and lives in Bratislava. The respondent Government were represented by their Agent, Mr P. Vršanský, succeeded by Mr P. Kresák as from 1 April 2003.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Proceedings concerning the applicant's claim of 5 January 1994
On 5 January 1994 the applicant lodged an action for damages relating to the defendant's failure to comply with a bail contract. On 25 January 1994 he paid the court fees. On 21 March 1994 the defendant co-operative submitted its memorial to which the applicant replied on 9 May 1994.
On 21 October 1996 the applicant complained to the president of the Bratislava City Court that there was no progress in his case.
On 31 October 1996 the Bratislava City Court informed the applicant that it had transferred the case to the Bratislava II District Court. The latter received the file on 5 November 1996. As the Bratislava II District Court considered that it lacked jurisdiction to deal with the case, it requested the Supreme Court to determine the issue. On 24 February 1997 the Supreme Court found that the case fell within the jurisdiction of the Bratislava Regional Court which had taken over the case files of the former Bratislava City Court. The Regional Court received the Supreme Court's decision on 2 May 1997.
On 4 March 1998 the Bratislava Regional Court held a hearing and decided to adjourn the case. On 18 March 1998 the applicant submitted further information. Between 8 and 27 October 1998 the file was submitted to the Ministry of Justice.
A further hearing before the Bratislava Regional Court was held on 22 February 1999. On 28 May 1999 the Regional Court heard two witnesses. Another hearing before the Bratislava Regional Court scheduled for 24 August 1999 had to be cancelled as a witness failed to appear. The Regional Court therefore requested the Poprad District Court to hear the witness.
On 15 March 2001 the Bratislava Regional Court ordered the defendant to pay 3,400 Slovakian korunas to the applicant and rejected the remainder of the latter's action. On 12 April 2001 the applicant appealed.
By two decisions dated 2 July 2001 the Bratislava Regional Court dismissed the applicant's request for waiver of fees of the appellate proceedings and instructed the applicant to pay those fees. On 31 August 2001 the Supreme Court upheld the Regional Court's decision to dismiss the applicant's request for waiver of court fees. On 9 October 2001 the applicant filed an appeal on points of law against the Supreme Court's decision of 31 August 2001.
On 29 August 2003 the applicant informed the Court that the proceedings are still pending.
2. Proceedings before the Constitutional Court
On 16 June 1998 the Constitutional Court found that the applicant's constitutional right to a hearing without undue delays had been violated in the above proceedings concerning his claim for damages. The Constitutional Court noted, in particular, that the Bratislava City Court had taken more than two years to transfer the case, for reasons of jurisdiction, to the Bratislava II District Court and that the Bratislava Regional Court had remained inactive for ten months after it had received the Supreme Court's decision of 24 February 1997. The Constitutional Court's decision was served on 22 June 1998.
On 13 March 2002 the applicant filed a complaint with the Constitutional Court alleging a violation of his constitutional rights to a hearing without undue delays and to compensation for damage. On 2 May 2002 the Constitutional Court declared admissible the complaint concerning the alleged delays in the proceedings brought on 5 January 1994. In its decision the Constitutional Court noted that the relevant part of the complaint followed its finding of 16 June 1998. It further rejected the remainder of the applicant's complaint noting, in particular, that it lacked jurisdiction to decide on claims for damages relating to unlawful decisions of public authorities or their erroneous official conduct.
3. Applicant's claim for damages under the State Liability Act of 1969
At the relevant time the Constitutional Court lacked jurisdiction to order that the applicant be compensated for the violation of his right to a hearing without undue delay which it had found on 16 June 1998. The applicant therefore claimed compensation for delays in the proceedings under the State Liability Act of 1969 with reference to the Constitutional Court's finding. On 17 November 1998 the Ministry of Justice dismissed the request and informed the applicant that he could seek redress before a court.
The applicant filed an action against the Ministry of Justice claiming (i) protection of his personal rights under Article 11 et seq. of the Civil Code and (ii) compensation for non-pecuniary damage under the State Liability Act of 1969. He referred to the Constitutional Court's finding of 16 June 1998.
On 26 May 1999 the Bratislava I District Court dismissed the applicant's action. It found that the defendant Ministry had not interfered with the applicant's personal rights when determining his claim for compensation. As to the claim for non-pecuniary damages under the State Liability Act of 1969, the court held that the damages claimed corresponded to lost income and related to the subject matter of the compensation proceedings which the applicant had brought on 5 January 1994 and which were still pending. The applicant had therefore to claim compensation from persons who were liable for such damage.
The applicant appealed and claimed that the above Constitutional Court's finding was a valid ground for compensating him for delays in the proceedings brought on 5 January 1994.
On 16 November 1999 the Bratislava Regional Court upheld the District Court's judgment of 26 May 1999. The appellate court found that the applicant had not shown that, as a result of the courts' dealing with his case, he had suffered material damage which could be expressed in terms of money and which could be redressed by means of the payment of a sum of money to him. As regards the applicant's argument that he had suffered damage of a non-pecuniary nature as a result of delays in the proceedings in question the Regional Court held:
“Cases in which the State is liable for damage caused by unlawful decisions delivered by a court in the context of judicial proceedings are specified in Act No. 58/1969 on liability for damage caused by the decision of a State authority or by its erroneous official conduct, and the present case does not fall within one of the classes of case in which compensation can be granted.”
B. Relevant domestic law and practice
1. The Constitution and the relevant 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 the petition (“podnet”) presented by any individual or a corporation claiming that their rights had been violated.
According to its case-law under the 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 case 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 a person whose constitutional right has 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).
According to an explanatory letter by the President of the Constitutional Court of 6 June 2002, nothing has prevented the Constitutional Court from dealing with complaints about length of proceedings in cases in which proceedings have also been instituted before the European Court of Human Rights provided that the domestic proceedings complained of are still pending at the moment when the constitutional complaint is filed. The letter further states that where the Constitutional Court earlier found a violation of Article 48(2) of the Constitution, a further complaint about delays in the same proceedings can be entertained only to the extent that it relates to the period after the delivery of the first finding of the Constitutional Court. However, when deciding on such cases the Constitutional Court will, as a rule, take into account that the ordinary courts have failed to proceed with the case without undue delays following its finding of a violation of Article 48(2) of the Constitution.
2. The State Liability Act of 1969
Section 18(1) of Act No. 58/1969 on the liability of the State for damage caused by a State organ's decision or by its erroneous official action (Zákon o zodpovednosti za škodu spôsobenú rozhodnutím orgánu štátu alebo jeho nesprávnym úradným postupom – “the State Liability Act”) renders the State liable for damage caused in the context of carrying out functions vested in public authorities which results from erroneous official actions of persons entrusted with the exercise of these functions. A claim for compensation under this provision can only be granted when the plaintiff shows that he or she suffered damage as a result of an erroneous action of a public authority, quantifies its amount, and shows that there is a causal link between the damage and the erroneous action in question.
3. Regulation No. 32/1965
Regulation No. 32/1965 governs compensation for damage caused to a person's health. Section 2 provides for compensation for pain resulting from damage to a person's health, subsequent medical treatment and the elimination of the effects of damage to health. The amount of the compensation is to be determined in accordance with the principles and rates attached to the regulation.
Under paragraph 2 of Section 2, compensation for pain is not payable in cases of simple psychic reactions affecting a person's health which are of a passing character or of short-term changes in a person's health which do not require medical treatment or which cannot be established in an objective manner.
The applicant complained that his right to a hearing within a reasonable time was violated in the proceedings concerning his action for damages of 5 January 1994 and that he had no effective remedy at his disposal in this respect. He alleged, inter alia, that the courts' failure to proceed with the case in a smooth manner had caused physical and mental suffering to him. It resulted in diabetes which had been diagnosed in April 2000 as well as in insomnia. The applicant relied on Articles 6 § 1 and 13 of the Convention.
The applicant complained about the length of the proceedings concerning his action of 5 January 1994 and that he had no effective remedy at his disposal in respect of this complaint. He relied on Articles 6 § 1 and 13 of the Convention which, insofar as relevant, provide:
Article 6 § 1
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
“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.”
The Government argued that the applicant had not exhausted domestic remedies as required by Article 35 § 1 of the Convention. To the extent that the applicant alleged that he had contracted diabetes as a result of suffering due to the excessive length of the proceedings, he could have claimed compensation under the State Liability Act of 1969 read in conjunction with Regulation No. 32/1965. The Government further contended that the applicant had not correctly specified his claim under the State Liability Act of 1969 in the proceedings which ended in the Regional Court's judgment of 16 November 1999 as the damages claimed by him related to the conduct of the defendant and not that of the courts dealing with the case.
As regards the merits of the complaint under Article 6 § 1, the Government referred to the Constitutional Court's finding of 16 June 1998 and admitted that there had been certain delays in the proceedings complained of. Those delays were mainly due to the heavy workload of the judge dealing with the case.
Finally, the Government maintained that the applicant had an effective remedy at his disposal as required by Article 13, namely a claim for damages under Section 18 of the State Liability Act. In their view, the fact that the applicant's action under this provision was rejected could not affect the position as the sum claimed by him corresponded to the sum which was the subject-matter of the proceedings in which the alleged delays had occurred and which were still pending. He thus failed to show that there was a causal link between the damage in question and any erroneous official conduct of the Regional Court. As to the applicant's argument that he had contracted diabetes as a result of suffering due to the excessive length of the proceedings, the Government contended that the applicant could have claimed compensation under the State Liability Act of 1969 read in conjunction with Regulation No. 32/1965.
The applicant contended that the remedy invoked by the Government was not effective as it was not capable of directly redressing the alleged violation of his right under Article 6 § 1 of the Convention and that it did not permit the obtaining of compensation for damage of non-pecuniary nature relating to excessive length of proceedings. He further pointed out that diabetes was not included among diseases for which compensation could be granted under Regulation No. 32/1965, that it had been diagnosed after he had filed the application and that, in any event, damage to health was not the only damage of a non-pecuniary nature which he had suffered as a result of the length of the proceedings.
As to the merits of the complaint under Article 6 § 1, the applicant argued that the heavy workload of judges did not exempt the Government from their obligation to ensure respect for his right to a hearing within a reasonable time. He further contended that the Regional Court had caused further delays in the proceedings after the delivery of the Constitutional Court's finding of 16 June 1998.
The Court notes that the Government argue, with reference to the State Liability Act of 1969 and Regulation No. 32/1965, that the applicant failed to exhaust domestic remedies. It finds that issues as to the availability of redress and as to the effectiveness of the remedy in question arise under the substantive complaint made by the applicant under Article 13 in conjunction with Article 6 § 1 of the Convention. The submissions made by the Government concerning non-exhaustion are closely connected with these aspects.
In view of the particular circumstances of the case, the Court considers that the question of exhaustion of domestic remedies should be joined to the merits of the application and reserved for later consideration.
In the light of the parties' submissions, the Court considers that the application raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.
For these reasons, the Court unanimously
Joins to the merits the question relating to the exhaustion of domestic remedies;
Declares the application admissible, without prejudging the merits of the case.
Michael O'Boyle Nicolas Bratza
ŠVOLÍK v. SLOVAKIA DECISION
ŠVOLÍK v. SLOVAKIA DECISION