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JAKUBI - 16126/05 [2007] ECHR 1110 (18 December 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/1110.html
Cite as:
[2007] ECHR 1110
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FOURTH
SECTION
CASE OF JAKUBIČKA AND
MAGYARICSOVÁ v. SLOVAKIA
(Application
no. 16126/05)
JUDGMENT
STRASBOURG
18
December 2007
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 Jakubička and Magyaricsová v. Slovakia,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza,
President,
Mr J. Casadevall,
Mr S.
Pavlovschi,
Mr L. Garlicki,
Ms L.
Mijović,
Mr J. Šikuta,
Mrs P.
Hirvelä, judges,
and Mr T.L. Early, Section
Registrar,
Having
deliberated in private on 27 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 16126/05) 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 two Slovak nationals, Mr Marcel
Jakubička
(“the first applicant”) and Ms Jana Magyaricsová
(“the second applicant”) (together referred
to as “the applicants”),
on 13 April 2005.
The
applicants were represented by Ms Ľ. Jakubičková,
their mother. The Slovak Government (“the
Government”) were represented by their Agent, Ms M. Pirošíková.
On
12 March 2007 the
President of the Fourth Section of the Court decided to give notice
of the application to the Government. Applying Article 29 § 3 of
the Convention, it was decided to rule on the admissibility and
merits of the application at the same time.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
The
applicants are siblings. They were born in 1973 and 1976 respectively
and live in Bratislava.
A. Factual background
The
applicants' parents are divorced. Their father had been ordered by
the Bratislava III District Court (then Obvodný súd,
at present Okresný súd) to contribute to their
maintenance.
The
father's obligation to contribute to the first applicant's
maintenance ended when the first applicant finished his secondary
studies and commenced his military service.
After
his military service, the first applicant commenced his university
studies and applied for a fresh maintenance order against his father.
Jointly with the first applicant, the second applicant applied for
an increase of her maintenance.
The
applicants' father then filed a separate action to have his
maintenance obligation terminated.
These
two actions were determined in two separate sets of proceedings which
are described below, the applicants' action being the main subject
matter of the present application.
As
a consequence of the ongoing and still unresolved maintenance dispute
the applicants found it difficult to provide for themselves during
their studies. The second applicant finally had to abandon her
post-secondary education in order to allow the first applicant to
finish his studies.
The
second applicant later became a mother and was no longer completely
free in her choice of school since she had to combine her studies
with her family situation and commitments. Since a public sector
college was not an option given her situation, she is currently
studying at a private college where she has to pay an annual tuition
fee of 45,000 Slovakian korunas
(SKK).
B. The applicants' action
On
30 September 1994 the applicants' mother filed a motion against their
father for a fresh maintenance order in respect of the first
applicant and for an increase of the payments towards the maintenance
of the second applicant.
On
30 November 1994 the applicants submitted powers of attorney in
favour of their mother and provided further and better particulars
specifying, inter alia, that the claim was in their own name
but that they were acting through the intermediary of their mother.
On
4 July 1996 the District Court held a hearing at which it allowed the
applicants to continue the action directly in their own names.
Further hearings were scheduled for 13 March and 3 April 1997. The
former had to be adjourned due to the absence of the parties. The
latter was adjourned to enable the applicants to amend their
statement of claim, which they did on the same day.
On
29 December 1998 the applicants requested that the proceedings be
dealt with. On 20 May 1999 the District Court requested them to
submit information concerning their school attendance and their
mother's income.
On
19 February 2001 the District Court requested information from the
employers of the applicants' mother and father concerning their
respective incomes.
On
20 March 2001 the District Court held a hearing at which the parties
requested a three-week adjournment in order to explore the
possibility of settling the case. The hearing was adjourned sine
die.
On
9 April 2001 the applicants' lawyer informed the District Court that
the attempts to settle the case had failed and requested that the
proceedings be resumed and a hearing fixed promptly. She reiterated
the request on 10 September 2001.
Another
hearing was held on 9 October 2001 and was adjourned sine die,
the defendant being ordered to produce evidence. The order was
reiterated on 8 November 2001.
A
hearing was fixed for 28 March 2002 and adjourned to 23 April 2002
and then again to 23 May 2002.
On
23 May 2002 the District Court held a hearing following which, on the
same day, it issued a maintenance order in favour of the first
applicant and increased the maintenance to be paid to the second
applicant. At the same time it determined the period for which the
maintenance should be paid and allowed the father to pay the arrears
in instalments.
At
the request of the District Court judge dealing with the case, the
President of the District Court authorised an extension of the period
for finalising the written version of the judgment until 30 July
2002. It was finally served on the parties in August 2002 and the
defendant appealed.
The
District Court obtained the applicants' observations in reply and the
court fee from the defendant and, on 22 October 2002, submitted the
case file to the Bratislava Regional Court (Krajský súd)
for a decision on the appeal.
On
24 February 2003 the Regional Court returned the case file to the
District Court without a decision on the ground that the latter had
failed to deliver formally the decision of 4 July 1996
concerning the applicants' standing in the proceedings.
The
District Court delivered and secured service on the parties of the
decision in question. It became final on 16 July 2003. The case file
was re submitted to the Regional Court on 9 September 2003.
On
23 March 2004 the Regional Court heard the appeal. The hearing was
adjourned with a view to obtaining the case file concerning the
father's claim for cancellation of his maintenance obligation.
On
15 June 2004 the Regional Court quashed the first-instance judgment
and remitted the matter to the District Court for the taking of
further evidence and re-examination.
In
December 2005 the District Court requested the applicants to inform
the court whether they were still full-time students or engaged in
training for a future career.
The
District Court held hearings on 20 and 24 April 2007. At the latter
hearing it pronounced a judgment ordering the defendant to pay
maintenance in favour of the first applicant, determining the period
for which the maintenance should be paid, allowing the defendant to
pay the arrears in instalments and dismissing the remainder of the
action. The second applicant appealed and the proceedings concerning
her are still pending.
C. Constitutional complaint
On
13 July 2004 the applicants, who were represented by a lawyer, lodged
a complaint under Article 127 of the Constitution with the
Constitutional Court (Ústavný súd) in
respect of the length of the proceedings in their action. They
directed the complaint against both the District Court and the
Regional Court and claimed SKK 500,000
each in damages.
On
8 September 2004 the Constitutional Court declared the complaint
admissible in so far as it was directed against the Regional Court
and inadmissible in so far as it was directed against the District
Court. In accordance with its established practice, the
Constitutional Court found that the complaint in respect of the
District Court was belated because the proceedings before that court
had ended with its judgment of 23 May 2002. Since the proceedings had
no longer been pending at the time when the constitutional complaint
had been lodged, their examination could no longer serve to expedite
them.
On
2 December 2004 the Constitutional Court found that there was no
violation of the applicants' right to a hearing without unjustified
delay (Article 48 § 2 of the Constitution). In line with its
admissibility decision, the Constitutional Court examined exclusively
the part of the proceedings before the Regional Court. It found no
particular factual or legal complexity in the case and no delays
attributable to the applicants. It further found that the Regional
Court could not bear any responsibility for the proceedings in the
period between 24 February and 9 September 2003 when the case file
was with the District Court for the correction of procedural errors
in connection with the decision of 4 July 1996. The Constitutional
Court thus confined itself to the period after 9 September 2003 and
found no significant delays on the part of the Regional Court.
D. The applicants' renewed constitutional complaint
On
14 October 2004 the applicants lodged a fresh constitutional
complaint about delays in the proceedings in their action before the
District Court. They submitted that on 4 October 2004, that is to say
after the above partial inadmissibility decision of 8 September 2004,
they had been served with the Regional Court's decision of 15 June
2004 by which the first instance judgment had been quashed and
the matter remitted to the District Court. Thus, neither they nor the
Constitutional Court had been aware of the fact that, at the time of
the Constitutional Court's partial inadmissibility decision, their
action had in fact been again before the District Court. Therefore,
the complaint about the length of the proceedings before the District
Court had not been belated.
On
27 October 2004 the Constitutional Court declared the complaint
inadmissible under sections 24 (a) and 25 § 2 of the
Constitutional Court Act on the ground that it concerned a matter
that was considered res iudicata.
E. The father's action
On
5 June 1995 the applicants' father lodged a separate motion for the
cancellation of his maintenance obligation in respect of the second
applicant.
On
29 April 1996 the District Court allowed the motion. The second
applicant appealed.
On
21 February 1997 the Regional Court declared the appeal inadmissible
as being belated. The second applicant appealed on points of law
(dovolanie) arguing that there had been a miscalculation of
the period for filing the appeal.
The
case file subsequently had to be re-assembled after having been
misplaced.
On
26 August 2003 the Supreme Court quashed the decision of 21 February
1997 and remitted the matter to the Regional Court for a new
determination of the second applicant's appeal against the judgment
of 29 April 1996.
The
Supreme Court found that the Regional Court had erred in the
calculation of the period for appealing and that the appeal had been
lodged in due time.
On
26 February 2004 the Regional Court quashed the first-instance
judgment and discontinued the proceedings following the father's
withdrawal of the action.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicants complained that the length of the proceedings in their
action 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 his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
A. Admissibility
The
Government contested that argument. In particular, they argued that
the applicants had failed to comply with the requirement under
Article 35 § 1 of the Convention
to exhaust domestic remedies in that they had not challenged the
length of the proceedings before the District Court when these
proceedings had still been pending and in that they had failed to
contest any possible procedural delays in the period after the
Constitutional Court's judgment (nález)
of 2 December 2004 by way of a fresh complaint under Article 127 of
the Constitution.
The
applicants considered that they had complied with the requirements of
Article 35 § 1 of the Convention as
regards the exhaustion of domestic remedies. They submitted that the
approach of the Constitutional Court to complaints about length of
proceedings that took place over several instances was unclear and
inconsistent. Given that their repeated recourse to the
Constitutional Court had failed to produce any effect, the applicants
considered that they were not required to file another complaint with
it. As for the substance of the application, the applicants argued
that the proceedings had throughout been marked by grave inefficiency
on the part of the courts and pointed out that they were still
pending.
The
Court considers it appropriate to recapitulate the relevant part of
its case-law in respect of length of proceedings in Slovakia.
Prior
to 1 January 2002 there was no “effective remedy” in the
Convention sense in respect of excessive length of proceedings in
Slovakia (see, for example, Bánošová v.
Slovakia (dec.), no. 38798/97, 27 April 2000).
On
1 January 2002 a constitutional amendment entered into force which
provided for a new remedy under Article 127 of the Constitution. This
remedy is in principle considered “effective” in the
Convention sense in respect of excessive length of proceedings (see
Andrášik and Others v. Slovakia (dec.),
nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01
and 60226/00, ECHR 2002 IX).
Having
regard to the Constitutional Court's practice to examine separately
the parts of proceedings which take place before several instances or
institutions without providing an overall assessment of their length,
the Court has stressed that a length of proceedings complaint under
Article 127 of the Constitution can only be considered “effective”
for Convention purposes if it is capable of leading in each
individual case to an examination of the overall length of the
proceedings (see Bako v. Slovakia (dec.), no. 60227/00,
15 March 2005).
The
above practice of the Constitutional Court posed a general question
as to whether a complaint under Article 127 of the Constitution
was a remedy compatible with the requirements of Article 35 § 1
of the Convention in situations where the proceedings took place
before several instances or institutions (see Šebeková
and Horvatovičová v. Slovakia, no. 73233/01,
§ 42, 14 February 2006 and Jakub v. Slovakia,
no. 2015/02, § 47, 28 February 2006).
The
European Court answered the above question on the basis of the most
recent information concerning the relevant domestic practice. It
found no reasons to doubt a priori and in general the
effectiveness of the complaint under Article 127 of the Constitution
as a remedy in respect of length of proceedings that took place
before several instances or institutions and that this finding was
not affected by the technical requirements of the Constitutional
Court's approach to such situations (see Obluk v. Slovakia,
no. 69484/01, § 60, 20 June 2006).
Accordingly,
the European Court has recognised that applicants are required to
formulate their constitutional complaints in a way permitting the
Constitutional Court to examine the overall length of the proceedings
(see, a contrario, Obluk, cited above, §§
61 and 62 and Šidlová v.
Slovakia, no. 50224/99, § 53, 26 September 2006).
Turning
to the circumstances of the present case, the Court observes that in
their constitutional complaint of 13 July 2004 the applicants
contested the length of the proceedings both before the District
Court and the Regional Court. Represented by a lawyer, they
formulated their complaint and its summary in accordance with the
applicable procedural rules and established practice in a way which
allowed the Constitutional Court to deal with the proceedings as a
whole (see Obluk, cited above, §§ 61 and 62).
However, by its decision of 8 September 2004 the Constitutional Court
for policy reasons excluded from its examination the part of the
proceedings which had taken place before the District Court and
which, at the same time, represented a substantial part of the
proceedings. The applicants' renewed constitutional complaint, lodged
at the time when the proceedings were again pending before the
first-instance court after the first judgment of the District Court
had been quashed on appeal and the matter had been remitted to the
District Court, failed to alter this outcome.
In
the above circumstances and having regard to the principle that the
Convention is intended to safeguard rights that are practical and
effective (see McCann and Others v. the United Kingdom,
judgment of 27 September 1995, Series A no. 324, pp. 45-46, §§
146-147), the Court finds that the applicants complied with the
exhaustion of domestic remedies rule under Article 35 § 1 of the
Convention and that requiring them to make use of the remedy under
Article 127 of the Constitution for a third time would be too onerous
a requirement under that provision of the Convention (see, for
example, Sukobljević v. Croatia, no. 5129/03, § 52,
2 November 2006).
It
follows that that the Government's objection as to the exhaustion of
domestic remedies has to be dismissed.
The
period to be taken into consideration began on 30 September 1994
and has not yet ended. It has thus lasted more than 13 years for
two levels of jurisdiction.
The
Court notes that the application 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 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 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. 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
second applicant claimed SKK 225,000
in respect of pecuniary damage. This amount represented tuition fees
for five years of her studies (see paragraph 10 above). The
applicants also claimed SKK 750,000
each in respect of non-pecuniary damage.
The
Government contested the claim concerning pecuniary damage as such
and the claim concerning non-pecuniary damage as to its amount.
In
so far as the claim in respect of pecuniary damage has been
substantiated, the Court does not discern any causal link between the
violation found and the pecuniary damage alleged; it therefore
rejects this claim. On the other hand, it considers that the
applicants must have sustained non-pecuniary damage. Ruling on an
equitable basis, it awards to each of them 8,000 euros (EUR) under
that head.
B. Costs and expenses
The
applicants also claimed SKK 40,653
for legal fees incurred before the ordinary courts and the
Constitutional Court and SKK 10,000
for translation costs incurred before the Court.
The
Government contested the claim as to legal fees but accepted the
claim as to translation costs.
According
to the Court's case-law, an applicant is entitled to reimbursement of
his 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 information in
its possession and the above criteria, the Court considers it
reasonable to award the sum of EUR 950 for legal fees before the
Constitutional Court and EUR 300 for translation costs before
the Court. Accordingly, it awards the applicants jointly EUR 1,250
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;
Holds
(a) that
the respondent State is to pay, within three months from the date on
which the judgment becomes final in accordance with Article 44 § 2
of the Convention, each of the applicants EUR 8,000 (eight thousand
euros) in respect of non-pecuniary damage and the applicants jointly
EUR 1,250 (one thousand two hundred and fifty euros) in respect of
costs and expenses, the above amounts to be converted into the
currency of the respondent State at the rate applicable at the date
of settlement, plus any tax that may be chargeable;
(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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 18 December 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
