CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 6 avril 2000

.s800EAC49 { font-size:12pt } .s598389FD { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:16pt } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s23A41E03 { width:36pt; display:inline-block } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sBA8DCCFC { width:35.45pt; display:inline-block } .s31BEBB9E { width:7.26pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sE55CAA3E { width:1.26pt; display:inline-block } .s9872C2C6 { width:15.43pt; display:inline-block } .s76CF415B { page-break-before:always; clear:both } .s29100277 { font-family:Arial; font-weight:bold } .s63D113AA { margin-top:0pt; margin-bottom:0pt; text-indent:35.45pt } .s4D28B2E2 { width:24pt; display:inline-block } .s21B97EC1 { width:25.99pt; display:inline-block } .s8AFB426F { width:32.67pt; display:inline-block } .s944BDE53 { margin-top:0pt; margin-bottom:0pt; text-indent:36pt } .s3985515B { margin-top:0pt; margin-left:36pt; margin-bottom:0pt } .s6D186F70 { width:22.36pt; display:inline-block } .sF7796C56 { width:260.85pt; display:inline-block } SECOND SECTION   DECISION   AS TO THE ADMISSIBILITY OF   Application no. 38853/97 by Eleonóra ČAPČÍKOVÁ against Slovakia     The European Court of Human Rights (Second Section), sitting on 6 April 2000 as a Chamber composed of     Mr   C.L. Rozakis, President ,   Mr   M. Fischbach,   Mr   G. Bonello,   Mrs   V. Strážnická,   Mr   P. Lorenzen,   Mr   A.B. Baka,   Mr   E. Levits, judges ,   and   Mr   E. Fribergh, Section Registrar ,     Having regard to the above application introduced with the European Commission of Human Rights on 14 October 1997 and registered on 3 December 1997,     Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,     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 FACTS   The applicant is a Slovak national, born in 1949 and living in Banská Bystrica.   A.   Particular circumstances of the case     The facts of the case, as submitted by the parties, may be summarised as follows.   1.   Proceedings concerning the estate of the applicant’s mother     After the death of the applicant’s mother in 1984 the remaining members of the family signed a declaration according to which the deceased had had no property. The State notary’s office in Zvolen therefore discontinued the proceedings concerning the estate on 13   December 1984.     On 17 May 1994 the applicant’s sister initiated new proceedings on the ground that an estate of her late mother did exist.     In June 1994 the claimant submitted further information. On 1 August 1994 the Zvolen District Court (Okresný súd ) instructed a clerk to proceed with the case.     On 6 September 1994 and on 11 October 1994 the claimant submitted further information at the clerk’s request.     On 20 November 1994 the clerk asked the land registry to send her the relevant documents. The land registry complied with the request on 7 February 1995.     On 5 August 1996 the applicant asked the Zvolen District Court to transfer the case to another clerk as there had been no progress in the case. On 9 September 1996 the District Court dismissed the request.     On 23 October 1996 the applicant requested that the case should be transferred to the District Court in Levice where separate proceedings concerning her father’s estate were pending (see “Proceedings concerning the estate of the applicant’s father” below).     On 4 November 1996 the District Court invited the applicant to pay the fees for her request. The letter reached the applicant on 3 January 1997 and the following day she paid the sum.     The District Court submitted the request to the Supreme Court ( Najvyšší súd ) on 12   February 1997. On 24 February 1997 the Supreme Court returned the case file to the District Court   on the ground that the latter had failed to ask the other party for observations on the applicant’s request.     On 6 March 1997 the District Court asked the applicant’s sister for observations. She replied on 1 April 1997.     On 8 April 1997 the case was sent again to the Supreme Court. The latter dismissed the applicant’s request on 23 April 1997.       On 6 June 1997 the applicant again requested the exclusion of the clerk on the ground that she had not proceeded with the case. On 29 July 1997 the District Court acceded to the request. On 22 August 1997 a new clerk was appointed.     On 5 September 1997 the clerk invited the applicant’s sister to submit an expert opinion within thirty days. The request was not complied with.     On 11 November 1997 the applicant urged the clerk to proceed with the case.     On 22 December 1997 the clerk submitted the file to the Zvolen District Court with the request to order the evaluation of the estate by an expert. On 7 January 1998 the District Court acceded to the request and appointed an expert.     The applicant was served with the aforesaid decision on 25 February 1998. In a registered letter sent on the same day the applicant challenged the expert.     On 14 May 1998 the applicant learned that her letter of 25 February 1998 had not been included in the file and that the decision to appoint an expert had become final on 13   March 1998.     On 18 May 1998 the applicant requested the president of the Zvolen District Court for an explanation.     On 5 June 1998 the president of the Zvolen District Court informed the applicant that there had been no undue delays in the proceedings.     On 10 June 1998 the applicant complained to the president of the District Court about delays in the proceedings and that the judge dealing with the case had failed to respond to her submissions. On the same day she submitted to the court an expert opinion which she had obtained at her own expenses and requested that the case be proceeded with.     On 24 June 1998 the District Court asked the expert for comments on the applicant’s objection to his person. On 15 July 1998 the expert withdrew from the case.     On 4 July 1998 the applicant complained to the president of the Banská Bystrica Regional Court ( Krajský súd ) that the proceedings lasted unreasonably long.     On 5 August 1998 the president of the Regional Court transmitted the applicant’s complaint to the president of the Zvolen District Court and requested the latter to inform him monthly about the progress in the case.     On 12 August 1998 the District Court appointed another expert and instructed him to submit an opinion within sixty days.     On 17 August 1998 the president of the Zvolen District Court informed the applicant that there had been no undue delays in the proceedings.     On 24 November 1998 the expert submitted the opinion to the Zvolen District Court. The latter sent the file back to the clerk on 27 November 1998.     A hearing before the clerk held on 11 January 1999 had to be adjourned as the applicant’s sister made new proposals.     On 29 January 1999 the clerk determined the shares in the estate.     On 1 March 1999 the clerk submitted the draft decisions on the determination of the estate and on the costs to the District Court for approval. The judge dealing with the case requested that the drafts should be amended. New draft decisions were submitted to the District Court on 26 March 1999 and the judge signed them on 7 April 1999. They were served on 27 April 1999.     On 11 May 1999 the applicant’s sister appealed.     On 24 August 1999 the Banská Bystrica Regional Court quashed the decisions complained of and sent the case back to the District Court. The Regional Court’s decisions were served on the applicant on 9 and 12 November 1999 respectively.   2.   Proceedings concerning the estate of the applicant’s father     On 9 July 1992 proceedings were brought before the Levice District Court with a view to determining the estate of the applicant’s father.     On 18 August 1992 a preliminary list of the assets was drawn up.     On 2 and 11 February 1993 the clerk requested the competent authorities to provide her with relevant documents.     On 27 March 1993 an expert evaluated the estate.     On 8 April 1993 the applicant requested a second expert opinion. On 26 November 1993 the clerk asked another expert for an opinion.     A hearing before the clerk was held on 15 February 1994. The Government maintain that the estate was evaluated whereas the applicant contends that the case was adjourned as her sister failed to appear.     As the expert appointed on 26 November 1993 remained inactive, the clerk urged him to submit the opinion on 27 May 1994. The opinion was submitted on 10 June 1994.     On 23 September and 4 October 1994 the applicant challenged the clerk.     On 3 April 1995 the applicant complained to the president of the Levice District Court that the case had not been proceeded with.     On 4 April 1995 the president of the Levice District Court admitted that the clerk had not proceeded with the case without any relevant reason since 10 June 1994. The case was transmitted to another clerk.     At a hearing before the clerk held on 23 May 1995 the parties requested that another expert opinion be submitted.     On 21 June 1995 an expert was appointed. He examined the property in question in the presence of the parties in January 1996 and submitted his opinion on 20   January 1996. The District Court returned the case file to the clerk on 7 May 1996.     On 23 April 1996 the applicant complained to the president of the Levice District Court about delays in the proceedings.     On 27 May 1996 the president of the Levice District Court informed the applicant that following her request to obtain another expert opinion the file had been with the expert for a longer period. The letter further stated that the file had been transmitted to the court’s clerk on 7 May 1996 and that she had been instructed to proceed with the case without delays.     On 13 June 1996 a certificate of the estate was drawn on the basis on an agreement the parties reached in the presence of the clerk. On 21 June 1996 the applicant’s sister challenged the certificate.     On 18 October 1996 the proceedings were stayed as a preliminary issue concerning a part of the property was to be determined (see “Proceedings concerning the ownership of the house of the applicant’s parents” below).     On 6 November 1996 the District Court decided on the expert’s fees. On 24 January 1997 the applicant challenged this decision.     On 25 February 1999 the clerk determined the estate. On 12   March 1999 the Levice District Court delivered a formal decision to this effect.     On 1 April 1999 the applicant’s sister appealed. On 31 May 1999 the Nitra Regional Court quashed the District Court’s decision of 12 March 1999.   3.   Proceedings concerning the ownership of the house of the applicant’s parents     The applicant considered that her sister had unlawfully taken out a mortgage on a house which had been built by her late parents. On 4 November 1996 the applicant lodged an action with the Zvolen District Court claiming that the house formed part of her parents’ estate and that she should be granted the costs of the proceedings.     On 13 January 1997 the applicant’s sister informed the Zvolen District Court that she did not contest the applicant’s claim and invited the court to grant the action as it was the only means of harmonising the legal position with the existing factual situation. She further stated that she had never intended to infringe the applicant’s rights.     On 14 January 1997 the Zvolen District Court decided that half of the house was to be included in the estate of the applicant’s father and the other half in the estate of her mother. It further ordered the defendant, with reference to Section 142 (1) of the Code of Civil Procedure (see “Relevant domestic law” below) to reimburse the court fees the applicant had paid in advance and also the fees of the applicant’s lawyer. The sum granted to the applicant amounted to 8,590 Slovak korunas.     On 11 February 1997 the applicant’s sister appealed. She claimed that the fees of the applicant’s lawyer had not been determined in accordance with the relevant provisions of the Lawyers’ Fees Regulation of 1990. The applicant’s representative was invited to submit observations on the appeal but he failed to do so.     On 27 March 1997 the Banská Bystrica Regional Court modified the first instance judgment in that it refused reimbursement of the procedural costs to the applicant.     The Regional Court considered that such a decision was justified by the position the defendant had taken in respect of the merits of the applicant’s claim. The Regional Court based its decision on Section 150 of the Code of Civil Procedure. It decided on the claim without a public hearing in accordance with Section 214 (2) (f) of the Code of Civil Procedure. The decision was served on the applicant’s lawyer on 10 June 1997.     On 30 June and on 2 September 1997 the applicant lodged an appeal on points of law. She alleged, in particular, that her sister had given rise to the proceedings in that she had unlawfully registered the house as her property. The applicant further argued that bringing the proceedings had been for her the only means of having the house included in the estate and that it had been open to her sister to settle the case.     On 27 October 1997 the Supreme Court rejected the applicant’s appeal on points of law as such a remedy was not available.   B.   Relevant domestic law     Pursuant to Section 142 (1) of the Code of Civil Procedure, a court shall award a successful party the costs necessary for claiming or defending a right.     Under Section 150 of the Code of Civil Procedure, a court may, exceptionally, refuse the reimbursement of the procedural costs to the successful party when it is justified by the particular circumstances of the case.     Section 214 (2) (f) of the Code of Civil Procedure provides that an oral hearing is not required when an appeal concerns exclusively, inter alia , the costs of the proceedings.   COMPLAINTS     The applicant complains under Article 6 § 1 of the Convention that the proceedings concerning her parents’ estates have lasted unreasonably long.     The applicant further complains that her right to a fair and public hearing as guaranteed by Article 6 § 1 of the Convention was violated in the proceedings in which the Banská Bystrica Regional Court decided, on 27 March 1997, on her procedural costs.   PROCEDURE     The application was introduced before the European Commission of Human Rights on 14 October 1997 and registered on 3 December 1997.     On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.     On 29 June 1999 the Court decided to communicate the application   to the respondent Government.     The Government’s written observations were submitted on 21 October 1999. The applicant replied on 1 December 1999.   THE LAW   The applicant complains about the length of the proceedings concerning her parents’ estates and that her right to a fair and public hearing was violated in the proceedings in which the Banská Bystrica Regional Court decided, on 27 March 1997, on her procedural costs. She alleges a violation of Article 6 § 1 of the Convention which provides, so far as relevant, as follows:   “In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by a[n] ... tribunal ...”   1.   As to the complaint about delays in the proceedings concerning the estate of the applicant’s mother, the Government contend that their length is mainly due to the conduct of the applicant. They further submit that between 1 January 1993 and 31 July 1999 the Zvolen District Court had before it 14,663 cases concerning an estate out of which only 876 were still pending at the latter date.     The applicant submits that the length of the proceedings is imputable to the conduct of the domestic authorities. She maintains, in particular, that there was no progress in the case between 17 May 1994 and 29 July 1997 and that subsequently the Zvolen District Court failed to act with due diligence with a view to obtaining an expert opinion.     The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant’s conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.   2.   As regards the length of the proceedings concerning the estate of the applicant’s father, the Government contend that following the applicant’s complaints lodged in 1994 and in 1995 the Slovak authorities proceeded with the case with due diligence. They maintain that the overall length of the proceedings is mainly imputable to the behaviour of both the applicant and her sister.     The applicant submits that the length of the proceedings has been excessive. She maintains that there were delays imputable to the Levice District Court between 18 August 1992 and 4 April 1995 as well as between 23 May 1995 and 13 June 1996. The applicant further submits that there has been no progress in the case after 31 May 1999 and concludes that her right to a hearing within a reasonable time was violated.     The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant’s conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.   3.   The applicant complains that her right to a fair and public hearing was violated in the proceedings in which the Banská Bystrica Regional Court decided on her procedural costs.     The Government submit that Article 6 § 1 of the Convention is applicable to the proceedings concerning the procedural costs. They maintain that the guarantee of a fair and public hearing was respected in the proceedings leading to the Zvolen District Court’s judgment of 14 January 1997 and that, in these circumstances, the appellate court was not required to rehear the parties. The Government further contend that the applicant did not   submit any observations on her sister’s appeal against the Zvolen District Court’s decision on the costs.     The applicant maintains that the refusal to grant her procedural costs in proceedings in which she had been successful was arbitrary and that the Banská Bystrica Regional Court delivered the decision of 27 March 1997 without having heard the parties.     Having examined the above issues the Court finds that they raise serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. Accordingly, this part of the application cannot be regarded as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other ground for declaring it inadmissible has been established.     For these reasons, the Court, unanimously,   DECLARES THE APPLICATION ADMISSIBLE , without prejudging the merits of the case.             Erik Fribergh   Christos Rozakis Registrar President