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FOURTH
SECTION
CASE OF KOŠICKÝ AND OTHERS v. SLOVAKIA
(Application
no. 11051/06)
JUDGMENT
STRASBOURG
11
January 2011
This
judgment is final but it may be subject to editorial revision.
In the case of Košický and Others v. Slovakia,
The
European Court of Human Rights (Fourth Section), sitting as
a Committee composed of:
Lech Garlicki, President,
Ján
Šikuta,
Vincent A. de Gaetano, judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 6 December 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 11051/06) 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 the Slovak nationals, Mr
Ľuboš Košický (“the first
applicant”), Mrs Anna Košická (“the second
applicant”) and Mr Dušan Kubala (“the third
applicant”), on 14 March 2006.
- The
applicants were represented by Mrs M. Kollárová, a
lawyer practising in Bratislava. The Government of the
Slovak Republic (“the Government”) were represented by
their Agent, Mrs M. Pirošíková.
- On
2 June 2009 the
President of the Fourth Section decided to give notice of the
application to the Government. In accordance with Protocol No. 14,
the application was allocated to a Committee of three Judges.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1974, 1956 and 1961 respectively and live in
Tvrdošín.
1. Civil proceedings
- On
27 September 2000 the first applicant initiated civil proceedings
before the Bratislava I District Court against a company claiming a
sum of money.
- On
28 March 2003 the District Court issued an interim measure upon the
first applicant's request of 3 October 2002. The defendant appealed.
- On
24 September 2003 the Bratislava Regional Court quashed the decision
and remitted the case to the District Court.
- On
23 January 2004 the second and third applicants joined the
proceedings as plaintiffs.
- On
10 August 2004 the District Court dismissed the first applicant's
interim measure request. The applicants appealed.
- On
21 April 2005 the Regional Court quashed the first-instance decision
and returned the case to the District Court.
- On
21 February 2006 the District Court issued the interim measure.
- On
4 August 2006 the District Court granted the action in part and
dismissed the remainder. The first applicant appealed.
- On
31 October 2008 the Regional Court quashed the first-instance
judgment and remitted the case to the District Court. The decision
was served on the applicants' legal representative on 19 December
2008.
- On
5 November 2009 the District Court granted the action. The judgment
became final in January 2010.
2. Constitutional proceedings
- On
15 March 2004 the first applicant lodged a complaint with the
Constitutional Court complaining of delays in the proceedings before
the Bratislava I District Court.
- On
30 June 2004 the Constitutional Court found that the District Court
had violated the first applicant's right to a hearing within a
reasonable time. It awarded him of 20,000 Slovakian korunas (SKK) as
just satisfaction and ordered the District Court to proceed without
further delays and to reimburse the first applicant's legal costs.
- On
9 March 2005 the applicants complained to the Constitutional Court
that the District Court and the Regional Court in the proceedings on
the merits had violated their right to a hearing within a reasonable
time. They also complained that the courts had not respected the
statutory time limit of thirty days for deciding on the interim
measure.
- On
23 August 2005 the Constitutional Court dismissed the applicants'
complaint. It found that the entire proceedings had lasted quite
a long time. Nevertheless, the conduct of both courts could not
be considered to have violated the applicants' right to a hearing
within a reasonable time.
- On
15 August 2007 the first applicant complained to the Constitutional
Court that the appeal proceeding before the Regional Court had lasted
too long. On 11 October 2007 the Constitutional Court dismissed the
first applicant's complaint as manifestly ill-founded. It held that
the length of the appeal proceedings could not be considered
unreasonable.
- In
December 2008 the first applicant again complained to the
Constitutional Court that the appeal proceedings before the Regional
Court had lasted too long.
- On
21 January 2009 the Constitutional Court dismissed the first
applicant's complaint as manifestly ill-founded. It held that on
15 December 2008, when the constitutional complaint was
filed with the Constitutional Court, the court file had been returned
to the District Court for a new decision. Thus, at the moment of the
lodging of the constitutional complaint, the Regional Court could no
longer violate the first applicant's rights.
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants complained that length of the proceedings before the
District Court and the Regional Court had been unreasonable. They
also complained that the courts had failed to respect the statutory
time-limit for taking a decision on the interim measure which
affected the enforceability of their claim. They alleged a violation
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
1. The first applicant
- The
Government submitted that despite the redress afforded to the first
applicant at the domestic level his allegation of still being a
victim of the alleged violation of his right to a hearing within a
reasonable time was not manifestly ill-founded.
- The
Court observes at the outset that it will examine the complaints
under Article 6 § 1 of the Convention taken together.
- The
Court notes that on 30 June 2004 the Constitutional Court found a
violation of the first applicant's right to a hearing within a
reasonable time and awarded him compensation for non-pecuniary damage
and ordered the District Court to proceed with the case without undue
delays.
- The
Court further notes that during the subsequent course of the
proceedings the first applicant turned three times to the
Constitutional Court complaining anew of the protracted length of the
proceedings. Two of his constitutional complaints were dismissed on
the ground that the conduct of the courts at the respective levels of
jurisdiction could not be considered to have violated the applicant's
rights. In its last decision of 21 January 2009 the Constitutional
Court rejected the first applicant's complaint holding that at the
time of lodging the complaint the proceedings had no longer been
pending before the Regional Court.
- The
Court observes that the applicant's status as a victim depends on
whether the redress afforded to him at the domestic level was
adequate and sufficient having regard to Article 41 of the
Convention. This issue falls to be determined in the light of the
principles established under the Court's case-law (see, Scordino
v. Italy (no. 1) [GC], no. 36813/97, §§ 178-213,
ECHR 2006-V and Cocchiarella v. Italy [GC], no. 64886/01,
§§ 69-98, ECHR 2006-V).
- The
Court notes that at the time of the last Constitutional Court's
decision the proceedings had lasted with regard to the first
applicant eight years and almost four months at two levels of
jurisdiction.
- On
30 June 2004 the Constitutional Court awarded the applicant SKK
20,000 in respect of non-pecuniary damage. This amount is
disproportionately low, having regard to what the Court generally
awards in similar cases.
- The
redress obtained by the applicant at the domestic level with regard
to the length of the proceedings up to the last Constitutional
Court's decision was thus insufficient (see Scordino (no. 1),
cited above, §§ 214 215). The first applicant can
accordingly still claim to be a “victim”.
- It follows 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.
2. The second and third applicants
- The
Government argued that, having regard to the length of the
proceedings in respect of the second and third applicants, the
Constitutional Court's decision of 23 August 2005 was in compliance
with the Convention. As to the further course of the proceedings
following the Constitutional Court's decision, they submitted that
the second and third applicants failed to have again recourse to the
Constitutional Court under Article 127 of the Constitution.
- The
applicants disagreed. They expressed the view that a new
constitutional complaint would have had no prospect of success in
terms of speeding up the proceedings since the first Constitutional
Court's decision in which the Constitutional Court ordered the
District Court to proceed without further delays had proved to have
no accelerating effect.
- The
Court notes that the period to be taken into consideration starts
running on the date when the second and third applicants became
parties to the proceedings (see, for example, Sadik Amet and
Others v. Greece, no. 64756/01, § 18, 3 February
2005, with further references).
- The
second and third applicants joined the proceedings on 23 January
2004.
- The
Court further notes that in the course of the proceedings the second
and third applicants turned once to the Constitutional Court
complaining that the proceedings before the District and the Regional
Court had lasted too long. The Constitutional Court held that the
length of the proceedings could not be considered unreasonable.
- The
Court observes that at the time of the Constitutional Court's
decision the proceedings had lasted for the second and third
applicants one year and seven months at two levels of jurisdiction.
- Having regard to the above length of the proceedings
the Court concurs with the conclusion reached by the Constitutional
Court that in the instant case the length of the proceedings at the
time of the Constitutional Court's decision of 23 August 2005 with
respect to the second and third applicants was not excessive.
- The
Court further reiterates that in certain situations applicants who
have already sought redress before the competent domestic authority
in respect of their complaint under Article 6 § 1 about
excessive length of proceedings may be required to have recourse
again to that remedy irrespective of whether or not they have filed
an application under Article 34 of the Convention in the
meantime. Such is the case, for example, when an applicant considers
excessively long the period which lapsed after the first finding of
the competent domestic authority (see, mutatis mutandis,
Musci v. Italy [GC], no. 64699/01, § 141,
ECHR 2006-V (extracts) and, in particular, when the first decision of
the domestic authority is consistent with the Convention principles
(see Becová v. Slovakia (dec.), no. 3788/06,
18 September 2007, with further references).
- Turning
to the facts of the present case in the light of the above, the Court
considers that the second and third applicants should have again
sought redress before the Constitutional Court as regards their
allegation that the proceedings had been excessively long.
- It
follows that the second and third applicants' 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.
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 applicants and the relevant authorities and what
was at stake for the applicants 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 material 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 whole length of the proceedings with respect to
the first applicant which lasted more than nine years and three
months at two levels of jurisdiction was excessive and failed to meet
the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
II. 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
first applicant claimed 24,160 euros (EUR) in respect of pecuniary
and EUR 15,000 in respect of non-pecuniary damage.
- The
Government contested the claim for pecuniary damage as to its
substance and submitted that the claim for non-pecuniary damage was
overstated.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
- The
Court considers that the first applicant must have sustained
non pecuniary damage. Ruling on an equitable basis, it awards
him EUR 4,500 under that head.
B. Costs and expenses
- The
first applicant also claimed EUR 20,142 for the costs and expenses
incurred before the domestic courts and EUR 8,896 for those incurred
before the Court. He further claimed EUR 37 for postal expenses and
EUR 320 for translation costs.
- The
Government requested that the part of the claim concerning the costs
incurred before the ordinary courts be dismissed and left the matter
to the Court's discretion as regards the remaining claims.
- The Court reiterates that an award can be made in
respect of costs and expenses only in so far as they have been
actually and necessarily incurred by the applicant and are reasonable
as to quantum (see Arvelakis
v. Greece,
no. 41354/98, § 34, 12 April 2001).
Furthermore, Rule 60 § 2 of the Rules of Court provides that
itemised particulars of any claim made under Article 41 of the
Convention must be submitted, together with the relevant supporting
documents or vouchers, failing which the Court may reject the claim
in whole or in part.
- In
the instant case, the Court observes that to the extent that the
claimed costs for legal services have been incurred to prevent or
rectify a violation of the Convention (see Záborský
and Šmáriková v. Slovakia, no. 58172/00, §
46, 16 December 2003), the first
applicant has not substantiated his claim by any relevant supporting
documents establishing that he was under an obligation to pay for the
costs of legal services or has actually paid for them. Accordingly,
the Court does not award any sum for legal costs (see
Cumpǎnǎ and
Mazǎre v. Romania
[GC], no. 33348/96,
§§ 133-134, ECHR 2004-XI).
- In
the present case, regard being had to the violations found, the
documents in its possession and the above criteria, the Court
considers it reasonable to award the first applicant the sum of EUR
20 to cover postal expenses and EUR 320 for translation costs.
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 in so far as
it concerns the first applicant and inadmissible in so far as it
concerns the second applicant and the third applicant;
- Holds that there has been a violation of the
first applicant's right to a hearing within a reasonable time
under Article 6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the first applicant, within three
months EUR 4,500 (four thousand five hundred euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage and EUR
340 (three hundred and forty euros) in respect of costs and expenses,
plus any tax that may be chargeable to the first applicant;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts 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 first applicant's
claim for just satisfaction.
Done in English, and notified in writing on 11 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Lech Garlicki
Deputy Registrar President
