AS TO THE ADMISSIBILITY OF
by Boris KIŠŠKA
The European Court of Human Rights (Fourth Section), sitting on 24 March 2009 as a Chamber composed of:
David Thór Björgvinsson,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 24 October 2006,
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 Boris Kišška, is a Slovak national who was born in 1977 and lives in Zilina. He was represented before the Court by Mr M. Klimašovský, a lawyer practising in Zilina. 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.
1. Proceedings concerning the action of 1997
On 8 August 1997 a private entrepreneur initiated proceedings before the District Court in Zilina concerning the payment of a sum of money. The applicant and the plaintiff concluded an agreement under which the relevant title was transferred to the former. The applicant asked the District Court for leave to replace the original plaintiff in the proceedings. On 30 January 2004 the District Court granted the request.
On 10 May 2005 the District Court granted the action. The defendant appealed.
On 13 October 2005 the District Court discontinued the proceedings.
On 20 February 2006 the Court of Appeal quashed that decision.
On 5 September 2006 the District Court discontinued the appeal proceedings as the defendant had failed to pay court fees.
2. Constitutional proceedings
On 7 July 2006 the Constitutional Court found that the District Court in Zilina had violated the applicant’s right under Article 48 § 2 of the Constitution to a hearing without unjustified delay. The case was not complex. The applicant by his conduct had not contributed to the length of the proceedings. However, his predecessor, the initial plaintiff, had submitted only on 3 December 2003 a reply to the District Court’s request of 5 September 2002. The District Court had failed to proceed in an appropriate manner and it was responsible for delays totalling 52 months.
The Constitutional Court awarded the equivalent of EUR 1,300 to the applicant as just satisfaction in respect of non-pecuniary damage. It also ordered the District Court to avoid any further delay in the proceedings and to reimburse the applicant’s legal costs.
The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which in the relevant part 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 argued that the applicant could no longer claim to be a victim, within the meaning of Article 34 of the Convention, of a violation of his right to a hearing within a reasonable time. They pointed out that the Constitutional Court had provided the applicant with preventive and compensatory redress which was adequate and sufficient. There had been no further delays after the Constitutional Court’s decision.
The applicant disagreed.
The proceedings started on 8 August 1997 and ended on 5 September 2006. They thus lasted 9 years and 30 days for two levels of jurisdiction. The applicant became a party to the proceedings on 30 January 2004. The question therefore arises whether the applicant can complain about the overall duration of the proceedings.
The Court has distinguished between situations where an applicant has joined civil proceedings pending before domestic courts as the heir of a late predecessor and situations where the applicant replaced the original party to the proceedings in his or her own independent capacity. In the former case, applicants can complain about the length of the proceedings as a whole. However, in the latter case the relevant period to be taken into consideration starts running on the date when the applicant has become a party to the proceedings (see, for example, Sadik Amet and Others v. Greece, no. 64756/01, § 18, 3 February 2005, with further references).
As indicated above, the applicant acquired a title to the sum which was the subject-matter of the impugned proceedings as a result of a business transaction. On that ground he requested and was granted leave to replace the original plaintiff in the proceedings.
Accordingly, the proceedings concerned a determination of his “civil rights and obligations” within the meaning of Article 6 § 1 as from 30 January 2004 when the District Court granted his request.
In view of the above, the Court concludes that as regards the duration of the proceedings prior to 30 January 2004 the applicant cannot claim to be a victim within the meaning of Article 34 of the Convention.
After 30 January 2004 the proceedings lasted 2 years, 7 months and 12 days for two levels of jurisdiction.
Without prejudice to the question whether the applicant can still claim to be a victim in view of the amount of compensation which he obtained, the Court does not find that period excessively long having regard to its established criteria in this area (for which see, for example, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
It follows that the application must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention partly as being incompatible ratione personae with the provisions of the Convention and partly as being manifestly ill-founded.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence Early Nicolas Bratza