AS TO THE ADMISSIBILITY OF
Application no. 9545/02
by Pavol RUTTKAY and Anna RUTTKAYOVÁ
The European Court of Human Rights (Fourth Section), sitting on 23 May 2006 as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr G. Bonello,
Mr M. Pellonpää,
Mr K. Traja,
Mr L. Garlicki,
Ms L. Mijović,
Mr J. Šikuta, judges,
and Mr T.L. Early, Section Registrar,
Having regard to the above application lodged on 8 February 2002,
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 applicants,
Having deliberated, decides as follows:
The applicants, Mr Pavol Ruttkay, and his mother, Mrs Ruttkayová, are Slovakian nationals who were born in 1943 and 1922 respectively and live in Banská Bystrica. They are represented before the Court by Mr P. Dlhopolček, a lawyer practising in Banská Bystrica. The respondent Government are 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.
The father of the first applicant and the husband of the second applicant, Mr R., had owned a cloth factory until it was expropriated in the late 1940s or the early 1950s and attached to a State owned enterprise.
On 16 March 1992 Mr R. brought an action under the Extra Judicial Rehabilitations Act (Law no. 87/1991 Coll.) against the State owned enterprise in the Banská Bystrica District Court (Okresný súd) for restitution of real property that had once belonged to his factory.
On 6 November 1993 Mr R. died. The applicants and another relative then pursued the action in his stead.
On 22 March 1995, following a hearing held on the same day, the District Court granted the action by ordering the State owned enterprise to enter into an agreement with the applicants on restitution (dohoda o vydaní) of the property in question.
On 7 September 1995, following a hearing of the defendant’s appeal, the Banská Bystrica Regional Court (Krajský súd) quashed the judgment of 22 March 1995 and remitted the case to the District Court for re-examination finding that the latter had failed to establish the relevant facts adequately.
In 1996 and 1997 the State owned enterprise underwent privatisation in the course of which its assets were sold to a private company X. and the State owned enterprise was wound up and liquidated. Company X. was subsequently transformed into a private company Y.
On 14 August 2001, following a hearing held on the same day, the District Court ordered that company X. surrender the property in question to the applicants.
On 31 January 2002 the District Court gave a supplementary judgment (doplňujúci rozsudok) in which it made a similar order against Y.
On 31 July 2002, on appeals by all parties, the Regional Court quashed the judgment of 14 August 2001 and discontinued the proceedings in so far as they concerned company X. It was observed that in 1997 X. had been wound up and no longer legally existed. The Regional Court further observed that the judgment of 31 January 2002 concerning company Y. remained unaffected as no party had challenged it.
B. Relevant domestic law and practice
1. The Constitution
Article 48 § 2 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 the Constitutional Court (Ústavný súd) could commence proceedings upon the petition (podnet) presented by any individual or a corporation claiming that their rights had been violated.
On 23 February 2001 the National Council of the Slovak Republic enacted a constitutional law amending the Constitution. It was published in the Collection of Laws on 17 March 2001 under no. 90/2001.
Amendment no. 90/2001 repealed Article 130 § 3 of the Constitution with the effect as from 1 July 2001 and introduced a new Article 127 to the Constitution with effect as from 1 January 2002.
Pursuant to Article 127, as in force from 1 January 2002, natural and legal persons can complain (sťažnosť) about a violation of their fundamental rights and freedoms. 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, for example, Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01, 60226/00, ECHR 2002-IX).
2. The Constitutional Court Act
The implementation of the above constitutional provisions enacted with effect from 1 January 2002 is set out in more detail in sections 49 to 56 of the Constitutional Court Act (Law no. 38/1993 Coll.), as amended. The relevant amending Act (Law no. 124/2002 Coll.) was published in the Collection of Laws and entered into force on 20 March 2002.
3. The Constitutional Court’s Practice
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 for the authority concerned to provide redress to the person whose rights had been violated (for further details see, for example, Bánošová v. Slovakia (dec.), no. 38798/97, 27 April 2000).
There are several decisions given by the Constitutional Court between March and September 2002, in which it decided on individual complaints under Article 127 of the Constitution that had been filed between 7 January 2002 and 18 February 2002. The complaints concerned the length of proceedings before ordinary courts that had been brought prior to 1 January 2002 (for further details see, for example, Mikolaj and Mikolajová v. Slovakia, no. 68561/01, § 34, 29 November 2005).
The applicants complained under Article 6 § 1 of the Convention that the length of their proceedings had been excessive.
The applicants complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, provided in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
The Government objected that the applicants had not exhausted domestic remedies as required under Article 35 § 1 of the Convention. In their view, the applicants could have challenged the overall length of their proceedings by means of a complaint under Article 127 of the Constitution. This remedy was available to them both in theory and in practice as from 1 January 2002 and they should have resorted to it.
The applicants maintained that they had complied with the exhaustion rule pursuant to Article 35 § 1 of the Convention. The Constitutional Court’s practice in examining complaints of the length of proceedings which took place before several instances and/or authorities was contradictory. The applicants considered that they were not required to make use of the remedy under Article 127 of the Constitution given that their proceedings ended at first instance on 31 January 2002 and at second instance on 31 July 2002. In any event, the level of just satisfaction awards by the Constitutional Court in respect of unreasonable length of proceedings was unacceptably low.
The Court finds that the present case raises a general question of effectiveness from the point of view of Article 35 § 1 of the Convention of the remedy pursuant to Article 127 of the Constitution, as in force from 1 January 2002, in respect of complaints of the length of proceedings. In the interest of clarity and legal certainty, the Court deems it appropriate to address this question against the background of other applications against Slovakia in which similar issues have been resolved differently.
The Court observes, first of all, that constitutional amendment no. 90/2001 providing for the remedy pursuant to Article 127 of the Convention was enacted, published in the Collection of Laws, and its relevant part entered into force on 23 February and 17 March 2001 and 1 January 2002, respectively.
The present application was introduced on 8 February 2002, which is after the entry into force of the relevant part of the amendment no. 90/2001. In this aspect the present case is different from those of Žiačik v. Slovakia, no. 43377/98, § 1, 7 January 2003 and Poláčik v. Slovakia, no. 58707/00, § 1, 15 November 2005. In view of the date of its introduction the present application also differs from those of Andrášik and Others, cited above, Mikolaj and Mikolajová, cited above, § 1, Vujčík v. Slovakia, no. 67036/01, § 1, 13 December 2005, Malejčík v. Slovakia, no. 62187/00, § 1, 31 January 2006, Šebeková and Horvatovičová v. Slovakia, no. 73233/01, § 1, 14 February 2006 and Jakub v. Slovakia, no. 2015/02, § 1, 28 February 2006.
The proceedings in the present case ended at first instance no earlier than on 31 January 2002 when the District Court gave its supplementary judgment and ended at second and final instance with the decision of the Regional Court of 31 July 2002. The proceedings were thus pending before all judicial instances involved on and after the date of entry into force of the relevant part of the amendment no. 90/2001. In this aspect the present case must be distinguished from those of Žiačik, cited above, § 21, Mikolaj and Mikolajová, cited above, § 18, Vujčík, cited above, § 25, Malejčík, cited above, § 13, Šebeková and Horvatovičová, cited above, §§ 14 and 21 and Jakub, cited above, § 12.
The application was introduced at a time when the remedy under Article 127 of the Constitution legally existed and could be resorted to in respect of all levels of jurisdiction involved. In so far as the application has been substantiated, the Court has found no reasons for exempting the applicants from the obligation to do so for the purposes of Article 35 § 1 of the Convention.
As to the applicants’ argument that the level of just satisfaction awards by the Constitutional Court in respect of unreasonable length of proceedings is unacceptably low, the Court reiterates that a reasonable amount of just satisfaction awarded in the domestic system is important for the remedy in question to be considered as effective under the Convention (see Dubjaková v. Slovakia (dec.), no. 67299/01, 19 October 2004). If the amount of the just satisfaction award at the domestic level in an individual case is manifestly unreasonable having regard to the Court’s case-law, the redress afforded by it may be considered insufficient from the point of view of the applicant’s status as a “victim” within the meaning of Article 34 of the Convention (see Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 178-215, ECHR 2006-... and Švolík v. Slovakia, no. 51545/99, § 41, 15 February 2005). The Court however finds no grounds for an assumption that, in this context, the level of just satisfaction awards by the Constitutional Court is generally insufficient (see Širancová v. Slovakia (dec.), no. 62216/00, 7 September 2004, Eštok v. Slovakia (dec.), no. 63994/00, 28 September 2004, Dubjaková, cited above and Bako v. Slovakia (dec.), no. 60227/00, 15 March 2005). In cases like the present one, therefore, the remedy under Article 127 of the Constitution should generally be tried for the purposes of Article 35 § 1 of the Convention.
It follows that the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Decides to discontinue the application of Article 29 § 3 of the Convention and declares the application inadmissible.
T.L. Early Nicolas Bratza
RUTTKAY AND RUTTKAYOVÁ v. SLOVAKIA DECISION
RUTTKAY AND RUTTKAYOVÁ v. SLOVAKIA DECISION