AS TO THE ADMISSIBILITY OF
by František HOLLÝ
The European Court of Human Rights (Fourth Section), sitting on 3 November 2009 as a Chamber composed of:
Nebojša Vučinić, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 4 September 2003,
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 František Hollý, is a Slovak national who was born in 1946 and lives in Bratislava. He was represented before the Court by Mr M. Benedik, a lawyer practising in Bratislava. 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.
A. Purchase contract and joint ownership of an immovable property
In 1991 the applicant concluded a contract with nine persons by which he bought their 9/10 ownership share in an immovable property. The remaining 1/10 share was owned by two individuals whose whereabouts were unknown.
B. Proceedings on dissolution of the joint ownership
On 24 January 1992 the applicant lodged a civil action requesting the Bratislava II District Court to dissolve the joint ownership of the above mentioned property and to recognise him as the sole owner. The District Court found in the applicant’s favour by a decision which became final on 2 March 1992.
On 3 July 1992 an heir of one of the two co-owners, whose whereabouts had been unknown, requested the reopening of the proceedings.
On 27 January 1994 the District Court stayed the proceedings on the request for reopening pending the outcome of another action concerning the validity of the purchase contract of 1991 (see point C below).
On 18 January 2000 the District Court resumed the proceedings on the request for reopening and decided to reopen the original proceedings.
On 11 December 2001, on the applicant’s petition (podnet) under Article 130 § 3 of the Constitution, the Constitutional Court found that the District Court had violated the applicant’s right to a hearing without unjustified delay under Article 48 § 2 of the Constitution in the reopened proceedings. It found no delays in the period of the proceedings on the request for reopening.
On 4 June 2002 the District Court stayed the reopened proceedings pending the outcome of the applicant’s request to reopen the proceedings on the validity of the 1991 purchase contract (see point C below).
On 3 April 2003, on the applicant’s complaint (sťaZnosť) under Article 127 of the Constitution, the Constitutional Court found that the District Court had violated the applicant’s right to a hearing within a reasonable time and its constitutional equivalent in the period after the Constitutional Court’s earlier judgment of 11 December 2001. The Constitutional Court ordered the District Court to proceed with the case and, having regard to its earlier finding of a violation of the constitutional equivalent of Article 6 § 1 of the Convention, it awarded the applicant 60,000 Slovakian korunas (SKK) (the equivalent of 1,463 euros (EUR) at that time) as just satisfaction for non pecuniary damage suffered.
The reopened proceedings were resumed in the context of the Supreme Court’s decision of 11 June 2004 (see point C below).
On 3 October 2005 the proceedings were again stayed on the ground that the Prosecutor General had lodged an extraordinary appeal on points of law in the proceedings concerning the request to reopen the proceedings on the validity of the 1991 purchase contract.
After the proceedings had been resumed, the District Court found against the applicant on 6 October 2008.
The applicant appealed and the proceedings are pending before the court of appeal.
C. Proceedings on the validity of the purchase contract of 1991
This related set of proceedings concerning the validity of the purchase contract of 1991 is the subject-matter of another application lodged by the applicant, which is pending before the Court under number 50755/08.
On 3 July 1992 an individual (the heir of one of the two remaining co owners mentioned above) requested the District Court to declare the purchase contract of 1991 null and void.
On 2 October 1998 the District Court granted the action and on 22 June 1999 the Regional Court upheld the judgment. After having been served on the applicant, the judgment became final on 17 September 1999.
On 20 December 2000 the applicant requested that the proceedings be reopened. His request was dismissed, on appeal, on 31 October 2003. On 11 June 2004 the Supreme Court declared the applicant’s appeal on points of law inadmissible.
On 25 October 2005 the Supreme Court dismissed the extraordinary appeal on points of law lodged by the Prosecutor General.
On 30 October 2007, on the applicant’s complaint under Article 127 of the Constitution, the Constitutional Court quashed the above Supreme Court’s decision and remitted the case to the latter.
On 25 June 2008 the Supreme Court again rejected the Prosecutor General’s extraordinary appeal on points of law. On 17 October 2008 the applicant challenged that decision before the Constitutional Court. The constitutional proceedings are still pending.
The applicant complained under Article 6 § 1 of the Convention that in the proceedings concerning the dissolution of the joint ownership he had not received a “fair hearing” within a “reasonable time”.
The applicant complained that the proceedings on the dissolution of the joint ownership had been unfair and had lasted an excessively long time. He relied on Article 6 § 1 of the Convention which provides:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal...”
The applicant disagreed and reiterated his complaint. He stated that, even though the Constitutional Court had found a violation of his right to a hearing within a reasonable time on two occasions, the proceedings had not yet been concluded. He also stated that the Constitutional Court had examined the proceedings only as from 18 January 2000 and not their overall duration. Lastly, he expressed the view that, as he had twice sought redress before the Constitutional Court to no avail, he was not required to do so for the third time.
As to the determination of the period of the proceedings within its jurisdiction, the Court firstly notes that the original proceedings, which had lasted one month, ended before 18 March 1992, that is before the recognition by the former Czech and Slovak Federal Republic, to which Slovakia is one of the successor States, of the right of individual petition took effect.
Secondly, it reiterates that Article 6 § 1 of the Convention is not applicable to the determination of a request for reopening of proceedings. Nonetheless, the proceedings concerning the re-examination of a civil right or obligation do fall within the scope of this provision, where the reopening was granted (see, among other authorities, Sablon v. Belgium, no. 36445/97, § 87, 10 April 2001 or Umek v. Slovenia, no. 5463/02, § 41, 18 January 2009).
In view of the above and having regard to its case-law on the subject, the Court finds that the relevant period within its temporal and material jurisdiction started running only on 18 January 2000, that is when the proceedings were reopened. Since then, they have been pending for almost ten years at two levels of jurisdiction.
In the present case the Constitutional Court twice found a violation of Article 6 § 1 of the Convention in the proceedings before the District Court. Contrary to the applicant’s suggestion, it also examined the period concerning the request for reopening of the proceedings. The Court notes that only the second judgment of the Constitutional Court was adopted under the complaint procedure pursuant to Article 127 of the Constitution, which had been available as from 1 January 2002, and which is considered an effective remedy for length of proceedings complaints (see Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01, 60226/00, 22 October 2002).
In connection with the amount of just satisfaction awarded by the Constitutional Court, the Court reiterates that an applicant’s status as a victim within the meaning of Article 34 of the Convention depends, inter alia, on whether the redress afforded at domestic level on the basis of the facts complained of before the Court was adequate and sufficient having regard to just satisfaction as provided for under Article 41 of the Convention. While there is no requirement under the existing case-law that the domestic authorities should award the same sum by way of compensation as the Court would be likely to award, the level of just satisfaction granted at domestic level must nevertheless not be manifestly inadequate in the particular circumstances of the case (see the principles established under the Court’s case-law in Cocchiarella v. Italy [GC], no. 64886/01, §§ 65-107, ECHR 2006-... or Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 178-213, ECHR 2006 - ...).
On 3 April 2003 the Constitutional Court ordered the District Court to proceed without any further delay and awarded the applicant the equivalent of EUR 1,463. At that time the proceedings lasted three years and two months at one level of jurisdiction after they had been reopened on 18 January 2000. The Court acknowledges that even though the Constitutional Court formally considered only the period of the proceedings subsequent to its earlier judgment of 2001, it took into account its earlier finding when deciding on the amount of just satisfaction.
Having regard to the relevant period under the Court’s consideration examined by the Constitutional Court (that is from 18 January 2000 until 3 April 2003), the amount of just satisfaction awarded can be considered to have provided adequate and sufficient redress to the applicant in view of the Court’s established case-law (see Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 178-213, ECHR 2006-..., and Cocchiarella v. Italy [GC], no. 64886/01, §§ 65-107, ECHR 2006-...). In view of the above, the Court concludes that the applicant can no longer claim to be a “victim” within the meaning of Article 34 of the Convention of the alleged violation of his right to a hearing within a reasonable time (see, for example, Bič v. Slovakia (dec.), no. 5423/03, 23 September 2008).
The Court further finds that the applicant was required, for the purposes of Article 35 § 1 of the Convention, to again resort to the complaint under Article 127 of the Constitution in respect of the proceedings subsequent to the Constitutional Court’s judgment of 3 April 2003 (see, for the recapitulation of relevant principles, Becová v. Slovakia (dec.), no. 23788/06, 18 September 2007).
The Court notes that it is open to the applicant to lodge such constitutional complaint and formulate it in accordance with the applicable procedural rules and established practice so as to allow the Constitutional Court to examine the proceedings as a whole, that is, including the first instance and appeal phases (see, for example, Šidlová v. Slovakia, no. 50224/99, § 53, 26 September 2006, with further references).
It follows that the complaint must be rejected in accordance with Article 35 §§ 1, 3 and 4 of the Convention as being manifestly ill-founded and for non-exhaustion of domestic remedies.
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Declares the application inadmissible.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President