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FOURTH
SECTION
CASE OF VARNAVČIN v. SLOVAKIA
(Application
no. 41877/05)
JUDGMENT
STRASBOURG
18 January
2011
This
judgment is final but it may be subject to editorial revision.
In the case of Varnavčin 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 14 December 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 41877/05) 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, Mr Ján Varnavčin (“the
applicant”), on 8 November 2005.
- The
Government of the Slovak Republic (“the Government”) were
represented by their Agent, Mrs M. Pirošíková.
- On
7 February 2008 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
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1950 and lives in Košice.
- The
facts of the case, as submitted by the applicant, may be summarised
as follows.
A. Criminal proceedings which the applicant joined with
a claim for damages
- In
1998 the applicant lodged a criminal complaint against an individual.
- On
9 June 2000 the Košice I District Office of Investigation
commenced an investigation against the latter in relation to damage
allegedly caused to the applicant.
- On
22 June 2000 the Košice I District Office of Investigation
heard the applicant who in his statement claimed damages of
220,000 Slovakian korunas (SKK).
- The
accussed was indicted before the Košice
I District Court on 26 September 2000.
- Between
October 2000 and June 2002 the District Court scheduled nineteen
hearings. Nine hearings were adjourned on the ground of the failure
of the accused or his attorney to appear, whereby in some cases the
reasons for their absence were not supported by any evidence. Four
hearings had to be adjourned due to one of the chamber's member's
illness and two hearings were adjourned due to absence of a witness.
- On
17 December 2001 the District Court joined the proceedings with a
different criminal case concerning the same accused.
- On
5 June 2002 the District Court convicted the accused of an offence
and ordered him to pay SKK 220,000 to the applicant in compensation
for damage.
- On
30 October 2002 the court of appeal quashed the first-instance
judgment.
- In
the subsequent period from February 2003 until February 2006 twelve
hearings were scheduled out of which ten had to be adjourned due to
absence of the accused or his attorney. At several hearings both the
attorney and the accused failed to inform the court of the reasons
for their absence.
- On
1 July 2005 the President of the Košice
I District Court, in reply to the applicant's complaint
of the length of the proceedings, admitted that the proceedings had
lasted a long time, which was due to absence of the accused and
illness of one member of a chamber. However, the President found that
there were no subjective delays attributable to the court.
- On
10 November 2005 the District Court requested an expert opinion
relating to the state of health of the accused with regard to his
ability to attend a hearing.
- On
22 February 2006 a hearing took place at which the accused refused to
give a statement.
- On
4 April 2006, after the accused had failed to appear before the court
for the hearing scheduled for 27 March 2006, the District Court
issued a warrant for his arrest.
- On
19 April 2006 the warrant was quashed since the accused had proved
that he had been ill at the time of the hearing.
- On
22 May and 21 June 2006 the District Court adjourned the hearing as
the attorney of the accused and the accused failed to appear.
- From
June 2006 until October 2006 the District Court sent several
inquiries to the doctor of the accused including a request for a
second expert opinion relating to the state of health of the accused
with regard to his ability to attend a hearing.
- On
15 October 2007 a hearing took place. On 15 November 2007, after the
accused had failed to appear before the court for the hearing
scheduled for 7 November 2007, the District Court issued a new
warrant for his arrest.
- On
25 January 2008 the accused was remanded in custody.
- On
12 March 2008 the accused was found guilty of fraud and ordered to
pay an amount of money in compensation for damage to the injured
parties including the applicant. The prosecutor appealed.
- On
23 October 2008 the Košice Regional Court
dismissed the appeal.
B. Constitutional proceedings
- On
18 August 2005 the Constitutional Court dismissed the applicant's
complaint about the length of the proceedings before the Košice
I District Court. The Constitutional Court found that the
right under Article 48 § 2 of the Constitution to a hearing
without unjustified delay did not extend to the applicant's claim for
compensation filed in the context of criminal proceedings against a
third person. Furthermore, it was open to the applicant to submit his
claim to a civil court. Article 48 § 2 of the
Constitution would apply to such civil proceedings.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Code of Criminal Procedure (Law no. 141/1961 Coll.,
as amended, applicable to the present case)
- Article
43 §§ 1 and 2 provides, inter alia, that a person
who has suffered pecuniary or non-pecuniary damage as a result of a
criminal offence may claim compensation from the accused and request
the court, when convicting the person charged with a criminal
offence, to order the latter to pay compensation for the damage. The
aggrieved party further has the right to adduce evidence and to
comment on it, to inspect the court file, to take part in the hearing
and to make submissions.
- An
aggrieved party who has a lawful claim against an accused person for
compensation in respect of damage resulting from a criminal offence,
has the right to propose that a conviction should include an order
for compensation. The proposal must be made at the latest at the
closure of the investigation and must indicate the ground and scope
of the claim.
- Pursuant
to Article 66 § 1 the court can impose a fine up
to SKK 50,000 on those who inter alia without a sufficient
excuse disobey the court's order or do not respect the court's call
given in accordance with the law.
- Pursuant
to Article 228 § 1, where a court convicts a person charged with
an offence which has caused damage to third persons under Article 43
§ 1, it shall, as a rule, order him or her to compensate
such damage, provided that the claim has been filed in due time.
- Under
Article 229 § 1, a court shall refer a person claiming
damages to a civil court (or to another authority) when the evidence
available is not sufficient to determine that claim or where the
taking of further evidence exceeding the scope of the criminal case
is required and the criminal proceedings would thereby be unduly
prolonged.
B. Constitutional Court Practice
- The
Constitutional Court held in its findings (see for example
I. ÚS 157/02;
III. ÚS 183/05; I. ÚS 18/06 and I. ÚS 67/2010)
that an aggrieved party who joined criminal proceedings
with a claim for damages has the right to a hearing “without
unjustified delay” (Article 48 § 2 of the
Constitution) as such a duly lodged claim excludes the possibility of
having it decided upon in civil proceedings (Article 83 of the
Code of Civil Procedure).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- 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 reads as follows:
“In the determination of ... any criminal charge
against him everyone is entitled to a ... hearing within a reasonable
time by [a] ... tribunal...”
A. Admissibility
- As
regard the assessment of the length of the proceedings the Government
argued that an injured party is entitled to have his or her claims
determined after the criminal proceedings has started and following
which he or she has lodged his or her claim for damages, indicating
the amount claimed. Therefore the relevant day for the period under
consideration was 22 June 2000 when the applicant joined the criminal
proceedings in a procedural position of an injured party and
claimed damages.
- The
Government further argued that the complaint was manifestly
ill founded, as the length of the proceedings was adequate in
view of all the circumstances and, in particular, certain factual and
procedural complexity of the matter. The investigator as well as the
District Court proceeded with the case fluently and the duration of
the proceedings was primarily influenced by the state of health and
behaviour of the accused and the behaviour of his attorney. In
particular, the District Court had to make inquiries about the state
of health of the accused and ordered expert opinions on the matter.
The applicant was not responsible for any delays. Finally, the
Government stated that nothing prevented the applicant from pursuing
his claim by the usual means before the ordinary courts.
- The
applicant contested the Government's objection by arguing that the
District Court was rather negligent in his conduct when considering
the number of hearings and the subject matter. He further admitted
that he had made his claim for damages on 22 June 2000. However,
he stated that the period to be taken into consideration by the Court
should start as of his first statement before a prosecutor.
- The
Court reiterates that injured parties, who lodged their claims for
damages in the context of criminal proceedings, enjoy the guarantees
of Article 6 § 1 of the Convention
(see Perez v. France [GC], no. 47287/99, §§ 67 70,
ECHR 2004-I; Krumpel and Krumpelová,
no. 56915/00, 5 July 2005, §§ 39-41; and
Bíro v. Slovakia,
no. 57678/00, §§ 44-45, 27 June 2006). Once
injured parties opt for claiming damages in the context of criminal
proceedings, they are entitled to have their claims determined within
a reasonable time (see Krumpel and Krumpelová, cited
above, § 48).
- The
Court finds that persons who have correctly lodged a claim for
damages in the context of criminal proceedings are entitled to
benefit from the guarantees of Article 6 § 1 of the Convention.
The injured party's civil claim for damages are a component of the
criminal proceedings up to the time of delivery of a decision on that
matter.
- The
Court considers that the applicant, as an aggrieved party, had the
right to have his claim determined within a reasonable time from the
moment he correctly lodged his claim for damages in the context of
the criminal proceedings in issue (see Krumpel and Krumpelová,
cited above, §§ 39-48) until 23 October 2008
when the court of appeal delivered its decision to upheld the
first-instance judgment.
- The
Court notes that the applicant claimed damages in his procedural
position of an aggrieved party when he was heard by the investigator
of the Košice I District Office of Investigation on 22 June
2000. The Court further observes that the applicant had not submitted
to the Court any evidence suggesting that he had lodged correctly his
claim for damages in the context of the criminal proceedings before
the date mentioned above.
- In
view of the above, the period to be taken into consideration lasted
in respect of the applicant eight years and four months including
pre-trial stage and the proceedings before the court at two levels of
jurisdiction. The Court therefore 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.
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, or Pfleger v. the Czech
Republic, no. 58116/00, § 50, 27 July 2004).
- 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.
Although the length of the criminal proceedings was significantly
influenced by the illness of the accused, the Court cannot disregard
the fact that a number of hearings had to be re-scheduled due to
illness of one member of the chamber. Moreover, many of the hearings
were adjourned due to the unexcused absence of the attorney and the
accused, without taking any other measures by the District Court in
order to secure the presence of both the attorney and the accused
before it. Having regard to the above and 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.
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 an equivalent of 6,640 euros (EUR) in respect
of non pecuniary damage.
- The
Government considered the claim excessive.
- The
Court considers that the applicant must have sustained non pecuniary
damage. Ruling on an equitable basis, it awards award him EUR 4,100
under that head.
B. Costs and expenses
- The
applicant also claimed EUR 183 for the costs and expenses
incurred before the domestic courts and the Court. The applicant
attached a bill for EUR 3,42.
- Pointing
to the evidence submitted by the applicant, the Government requested
to grant the applicant the reimbursement of only reasonably incurred
costs.
- 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 present case, regard being had to
the documents in its possession and the above criteria, the Court
awards the applicant, who was not represented by a lawyer, the sum of
EUR 100 for his out-of-pocket expenses.
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;
- Holds
(a) that
the respondent State is to pay the applicant, within three months the
following amounts:
(i)
EUR 4,100 (four thousand one hundred euros), plus any tax that
may
be chargeable, in respect of non pecuniary damage;
(ii)
EUR 100 (one hundred euros), plus any tax that may be chargeable
to the applicant, in respect of costs and expenses;
(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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 18 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Lech
Garlicki
Deputy Registrar President
