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FOURTH
SECTION
CASE OF KOCIANOVÁ
v. SLOVAKIA
(Application
no. 21692/06)
JUDGMENT
STRASBOURG
18
May 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Kocianová v. Slovakia,
The
European Court of Human Rights (Fourth Section), sitting 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
deliberated in private on 27 April 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 21692/06) against the
Slovak Republic lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a Slovak national, Ms Viera
Kocianová (“the applicant”), on 10 May 2006.
- The
applicant was represented by Mr T. Šafárik, a lawyer
practising in Košice. The Slovak Government
(“the Government”) were represented by their Agent, Mrs
M. Pirošíková.
- On
5 March 2009 the
President of the Fourth Section decided to give notice of the
application to the Government. It was decided to rule on the
admissibility and merits of the application at the same time (Article
29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1959 and lives in Viničné.
A. Proceedings concerning the applicant’s action of 1997
- On
12 November 1997 the applicant lodged an action with the Bratislava
Regional Court against a limited liability company. She claimed,
among other issues, to have the right to consult the company’s
documentation and to enter its premises. In this way the applicant
wished to receive information allowing her to lodge an action for
damages against the company. The Supreme Court, on appeal, found in
her favour. The decision was served on the applicant on 7 July
2003, it thus became final.
- At
the applicant’s request, on 29 September 2003, the Pezinok
District Court appointed an enforcement officer to enforce the above
decision. Due to the inactivity of the enforcement officer, the
applicant requested that the decision be enforced by a court. The
enforcement by the enforcement officer was discontinued on 9 March
2005.
- The
enforcement proceedings were then pending before the Bratislava III
District Court. On 14 April 2005 they were discontinued on the
ground that the defendant company had been dissolved and wound up.
The decision became final on 17 May 2005.
- In
the meantime, on 18 April 2005, the applicant complained about the
inactivity of the enforcement officer to the Association of
Enforcement Officers. On 24 October 2005 the complaint was rejected
as being manifestly ill-founded. On 19 March 2007 the Ministry of
Justice concluded that the applicant’s complaint was justified.
It informed the enforcement officer that no disciplinary proceedings
would be initiated.
B. Constitutional proceedings
- On
13 July 2005 the applicant complained before the Constitutional Court
about, among other issues, the overall length of the proceedings. On
21 September 2005 the Constitutional Court declared inadmissible the
complaint about the length of the proceedings under Article 6 §
1 of the Convention. The Constitutional Court held that the civil
proceedings had ended on 7 July 2003, that is more than two months
before the applicant had lodged the constitutional complaint. As
regards the period of the enforcement by the enforcement officer, it
held that the applicant did not use the available remedies pursuant
to the Act on Enforcement Officers and
Enforcement Proceedings, that is a complaint against an
enforcement officer or a request that her case be assigned to another
enforcement officer. It examined the period of the enforcement
proceedings pending before the District Court and found no delays in
that phase.
- The
Constitutional Court rejected the complaint under Article 1 of
Protocol No. 1 as being manifestly ill-founded and noted that at the
time when the applicant had requested enforcement of the judgment of
2003, the defendant company had already been dissolved. The decision
was served on the applicant’s lawyer on 14 November 2005.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention and
Article 1 of Protocol No. 1 about the length of the proceedings.
The Court considers it reasonable to examine the complaint under
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...”
A. Admissibility
- The
Government argued that the applicant had not sought redress before
the Constitutional Court in accordance with the applicable formal
requirements and the Constitutional Court’s practice. They
noted that it was the latter’s practice (i) to examine the
length of proceedings complaints only when the proceedings were still
pending before the authority liable for the alleged violation at the
moment when the complaint was lodged with the Constitutional Court,
and (ii) to declare inadmissible the complaints which were introduced
after the proceedings complained of had been concluded. They further
stated that such practice had also been accepted by the Court (see
also Obluk v. Slovakia, no. 69484/01, §§ 61-62, 20
June 2006 and Mazurek v. Slovakia (dec.), no. 16970/05, 3
March 2009).
- The
applicant argued that she had complained before the Constitutional
Court about the overall length of the proceedings and the
Constitutional Court’s decision to split the examination of
their length into several parts had been too formalistic.
-
In the case of Mazurek, cited above, the Court held that the
applicants should, in line with the Constitutional Court’s
practice, lodge their length of proceedings complaints before the
proceedings complained of had ended. However, the position in the
present case is different. The Constitutional Court did not
declare the applicant’s complaint inadmissible on the ground
that the proceedings as a whole were no longer pending at the time of
the lodging of the complaint. It examined the last phase of the
proceedings (which had ended within the statutory two-month
time-limit) and concluded that its duration had not been
unreasonable. This part of the application cannot therefore be
rejected for the applicant’s failure to lodge her
constitutional complaint in accordance with the formal requirements.
- The
Court reiterates that enforcement of a judgment given by any court is
to be regarded as an integral part of the “trial” for the
purposes of Article 6 of the Convention. This principle has been
found applicable in cases concerning the length of proceedings (see
Sika v. Slovakia, no. 2132/02, § 25, 13 June 2006,
with further references).
- The
Court observes that the applicant formulated her constitutional
complaint in a manner permitting the Constitutional Court to examine
the overall duration of the proceedings (see Obluk, cited
above). The Constitutional Court thus could have addressed their
overall length, in line with the Court’s approach when
examining similar cases (see SOFTEL, spol. s r. o. v. Slovakia
(no. 2), no. 32836/06, § 21, 16 December 2008). In
a number of cases the Constitutional Court, indeed, adopted such
approach (see also Bako v. Slovakia (dec.), no. 60227/00, 15
March 2005; Šedý v. Slovakia, no. 72237/01, §§
66-67, 19 December 2006; and SOFTEL, spol. s r. o. v.
Slovakia (no. 1), no. 32427/06, § 8, 16 December 2008).
However, in the present case it excluded from its review a
substantial phase of the proceedings on the ground that the Regional
Court was no longer dealing with the case and that the statutory
two-month time-limit had expired, and examined only the last short
period of the District Court’s proceedings.
- In
view of the above, the Court does not accept the Government’s
argument that the applicant should have separately complained before
the Constitutional Court of the individual parts of the proceedings
in her case at the time when they were pending before each of the
authorities involved.
- The
Government’s objections must therefore be dismissed.
- The
Court observes that the civil proceedings were dealt with by courts
at two levels of jurisdiction for five years and eight months and the
subsequent enforcement stage lasted more than a year and a half.
Their overall duration was thus approximately seven years and a
half.
- It
follows that this part of the application cannot be rejected for
non exhaustion of domestic remedies within the meaning of
Article 35 § 1 of the Convention and it is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Frydlender, cited above).
- Having
examined all the materials submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant, in substance, claimed that she could not effectively seek
redress before the Constitutional Court. Even though she did not
invoke Article 13 of the Convention, the Court considers it
appropriate to examine this issue under that provision, which reads
as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. Admissibility
- The
Government argued that the applicant’s constitutional complaint
was capable of leading to an examination of the overall length of the
proceedings, had the applicant lodged it in accordance with the
formal requirements.
- The
applicant disagreed.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
Merits
- The
Court takes the view that the remedy under Article 127 of the
Constitution is likely to provide appropriate and sufficient redress
to applicants where it allows for examination of the entire duration
of the proceedings complained of.
- Since
the applicant in the present case complained to the Constitutional
Court about the overall duration of the proceedings and since, unlike
in other decisions, the Constitutional Court excluded from its review
their substantial part and examined only a short period of the
proceedings of which the applicant complained, the Court considers
that the applicant’s right to an effective remedy has not been
respected.
There
has therefore been a violation of Article 13 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed EUR 15,000 in respect of non-pecuniary damage.
- The
Government left the matter to the Court’s discretion.
- The
Court considers that the applicant must have sustained non pecuniary
damage. Ruling on an equitable basis, it awards her EUR 4,000 under
that head.
B. Costs and expenses
- The
applicant also claimed EUR 300 for the legal representation before
the Constitutional Court and the Court. The applicant’s lawyer
explained that the applicant would be asked to pay that amount after
the case has been decided by the Court. The applicant also claimed
EUR 150 in respect of translation services.
- The
Government contested these claims, noting that the applicant had not
submitted any supporting documents.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the absence of any evidence to support
the applicant’s claim as to costs and expenses, no award is
made under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
3. Holds that there has been a violation of Article 13
of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 4,000 (four
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 18 May 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
