European Court of Human Rights

FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 44369/05
by Dušan KONČEK and Others
against Slovakia

The European Court of Human Rights (Fourth Section), sitting on 20 October 2009 as a Chamber composed of:

Nicolas Bratza, President,
Giovanni Bonello,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Ledi Bianku,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,

Having regard to the above application lodged on 23 November 2005,

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 FACTS

The applicants are three Slovakian nationals. Mr Dušan Konček (the first applicant) was born in 1944 and lives in Košice. The second applicant, Mr Milan Konček, is the first applicant’s brother who was born in 1951 and lives in Košice. The third applicant, Mrs Jolana Končeková, was their mother. She was born in 1921, lived in Rybník pri Ratkovej and died on 26 February 2006. The Slovak Government (“the Government”) were represented by their Agent, Mrs M. Pirošíková.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 14 June 2001 the applicants filed an action with the Rimavská Sobota District Court claiming a sum of money. On 1 October 2001 the applicants specified their action.

On 6 February 2002 the District Court delivered a payment order. On 25 February 2002 the defendant company filed an objection to the order. The order ceased to have effect.

The District Court scheduled hearings for 17 April and 6 May 2002. On 5 and 29 April 2002 the applicants requested that the hearings be cancelled and that their representative be heard, for reasons of procedural economy, by a court in Košice.

On 25 June 2003 the applicants’ representative was heard by a different court in accordance with the applicants’ above proposal. On 7 July 2003 the case file was returned to the Rimavská Sobota District Court.

On 12 November 2003 the District Court dismissed the action. On 30 December 2003 the Banská Bystrica Regional Court quashed the first-instance judgment.

The applicants challenged the length of the proceedings before the Rimavská Sobota District Court by way of a constitutional complaint. On 20 May 2004 the Constitutional Court found that the applicants’ right under Article 6 § 1 of the Convention to a hearing within a reasonable time had not been violated. It held that there had been a single period of inactivity between 7 July and 12 November 2003 which did not justify the conclusion that the length of the proceedings was excessive. It noted that the applicants by their unspecific action had contributed to the overall length of the proceedings.

On 19 July 2004 the District Court rejected the action. The decision was quashed by the court of appeal on 29 September 2004.

On 29 September 2005 the case was assigned to another judge.

On 26 February and 28 October 2008 the District Court dismissed the action and the judgments were quashed by the court of appeal on 19 August 2008 and 25 February 2009, respectively. The proceedings are pending.

COMPLAINT

The applicants complained under Article 6 § 1 of the Convention about the length of the proceedings. They alleged, in particular, that the Constitutional Court had disregarded the period from 17 April 2002 to 19 May 2003 during which the District Court had remained inactive.

THE LAW

The applicants complained that the proceedings had lasted an excessively long time. They relied on Article 6 § 1 of the Convention which provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

In so far as the period examined by the Constitutional Court is concerned, the Government agreed with the finding of the Constitutional Court in that the length of the proceedings before the Rimavská Sobota District Court had not been unreasonable and that the applicants’ conduct had contributed to the overall length of the proceedings.

The Government further expressed the opinion that, as regards the period after the Constitutional Court’s finding, the applicants could have lodged a fresh complaint under Article 127 of the Constitution.

The applicants reiterated that the length of proceedings had been excessive contrary to Article 6 § 1 of the Convention. As to the proceedings examined by the Constitutional Court, the applicants pointed to the delays in the periods between 14 June 2001 and 6 February 2002 and between 17 April 2002 and 19 May 2003.

As to the period after the Constitutional Court’s finding, the applicants argued that they were not obliged to seek redress by lodging a fresh constitutional complaint. They alleged that the District Court had not proceeded with the case in an effective manner and that they had not contributed to the length of the proceedings. They also pointed to several delays in the proceedings.

The Court observes that the applicants’ constitutional complaint was directed exclusively against the Rimavská Sobota District Court. It will, therefore, examine only the period when the case was dealt with by that court.

The Court notes that at the time of the Constitutional Court’s finding the case had been dealt with by the Rimavská Sobota District Court for 2 years and 9 months. During this period the Košice District Court was requested to hear the applicants’ representative. The Court does not consider relevant the applicants’ arguments concerning delays in the proceedings complained of before the Constitutional Court. Even assuming that the District Court proceeded with the case ineffectively for a certain period of time, it does not render the overall duration of the District Court’s proceedings at the time of the Constitutional Court’s finding contrary to the requirements laid down in Article 6 § 1 of the Convention (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). In view of the above, the Court finds no reason for disagreeing with the Constitutional Court’s conclusion.

In these circumstances, the applicants were required to file a fresh complaint under Article 127 of the Constitution in respect of any alleged delays in proceedings subsequent to the Constitutional Court’s finding (see Becová v. Slovakia (dec.), no. 23788/06, 18 September 2007).

The Court notes that it is still open to the applicants to lodge such constitutional complaint and seek redress in respect of the proceedings as a whole (see, for example, Šidlová v. Slovakia, no. 50224/99, § 53, 26 September 2006, with further references).

It follows that the application must be rejected in accordance with Article 35 §§ 1, 3 and 4 of the Convention partly as being manifestly ill-founded and partly for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Declares the application inadmissible.

Lawrence Early Nicolas Bratza
Registrar President