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WEISS v. SLOVAKIA - 28652/03 [2007] ECHR 1111 (18 December 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/1111.html
Cite as:
[2007] ECHR 1111
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FOURTH
SECTION
CASE OF WEISS v. SLOVAKIA
(Application
no. 28652/03)
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 Weiss v. Slovakia,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza,
President,
Mr G. Bonello,
Mr K. Traja,
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. 28652/03) 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 Vladimir
Weiss (“the applicant”), on 25 August 2003.
The
Slovak Government (“the Government”) were represented by
their Agent, Ms A. Poláčková, who was subsequently
succeeded in that function by Ms M. Pirošíková.
On
3 July 2006 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
applicant was born in 1957 and lives in Lemešany.
A. Action
On
10 November 1995 eleven individuals brought a civil action against
the applicant in the Prešov District Court (Okresný
súd). They claimed that he was using their plot without a
title and that he was causing damage to it. They sought an order for
vacation of the plot and damages.
Between
16 April 1996 and 29 April 1997 the District Court held 3 hearings,
obtained documentary evidence from third parties and inspected the
land in question.
On
14 March 1997 the plaintiffs modified the action in that they also
sought restoration of the plot in the status quo ante or,
alternatively, damages in a higher amount.
Between
10 July 1997 and 15 November 1999 the District Court appointed three
construction experts in succession to draw up a report analysing the
possibility of restoring the plot. The first expert was discharged
shortly after his appointment at his own request as he was on
friendly terms with one of the plaintiffs. The second expert was
discharged after almost 2 years and 2 months after he was fined for
having failed to produce the report despite repeated reminders.
The third expert eventually submitted the report on 19 December 2000.
In
the meantime, on 18 September 1997, the applicant was ordered to pay
an advance on the costs of the expert report. The order was upheld on
the applicant's appeal on 28 November 1997.
On
21 December 2000 the District Court ruled on the expert's fees and,
on 3 May 2001, the ruling was upheld following the applicant's
appeal.
Between
23 April 2002 and 19 February 2003 the District Court held 4 hearings
and took various procedural steps.
On
7 August 2002 the applicant lodged a counterclaim in which he
maintained that he had acquired the title to the plot at issue by way
of prescription. He later modified the counterclaim by contending
that he had in fact improved the plot and sought compensation for the
improvement.
On
10 July 2003 the District Court requested the applicant to provide
further and better particulars of his counterclaim, which the
applicant did on 31 July 2003.
On
8 September 2003 the District Court ruled that the applicant would
not be exempted from the obligation to pay the court fee for lodging
his counterclaim. Without further substantiation, the District Court
based the ruling on the observation that the applicant had been
awarded just satisfaction by the Constitutional Court (see below). On
16 August 2004 the ruling was upheld on the applicant's appeal,
albeit on different grounds.
On
14 December 2004 the plaintiffs' lawyer informed the court that one
of the plaintiffs had died and that his heir wished to continue the
action in his stead.
In
February 2005 the District Court requested the current plaintiffs
to amend their claim so as to reflect the fact that one of the
original plaintiffs had died and to indicate the questions which they
wished to be put to a hygiene expert. They responded on 1 March 2005.
In
March 2005 the matter was assigned to a new judge.
On
18 April 2005 the District Court held a hearing which was adjourned
at the parties' request as they wished to settle the case.
On
26 September 2005 the District Court held a hearing following which,
on the same day, it dismissed both the 1995 action and the
applicant's counterclaim of 2002. It was found that the plot in
question belonged to the plaintiffs and that the applicant was using
it bona fide. The plaintiffs had failed to show that the
applicant had caused them any damage and the applicant had failed to
show that the owners had obtained any unjustified advantage at his
expense.
In
November 2005 both the plaintiffs and the applicant appealed. In June
2006 the plaintiffs paid the court fee for their appeal and the
applicant requested an exemption from the obligation to pay the court
fee for his appeal.
The
appeal proceedings are still pending, a hearing being scheduled for
28 August 2007.
B. Constitutional complaint
On
22 August 2002 the applicant lodged a complaint under Article 127
of the Constitution with the Constitutional Court (Ústavný
súd). He contested the length of the proceedings and
claimed 200,000
Slovakian korunas (SKK) in compensation for non-pecuniary damage.
On
12 March and 4 June 2003, respectively, the Constitutional Court
declared the complaint admissible and found that the District Court
had violated the applicant's right to a hearing “without
unjustified delay” (Article 48 § 2 of the Constitution)
and “within a reasonable time” (Article 6 § 1
of the Convention). Together with the latter ruling, the
Constitutional Court also ordered the District Court to deal with the
case promptly; to pay the applicant SKK 20,000
by way of just satisfaction in respect of non-pecuniary damage; and
to reimburse his legal costs.
The
Constitutional Court found that the subject-matter of the proceeding
was not particularly complex and that no unjustified delays could be
imputed to the applicant. However, the Constitutional Court found
that there had been 18 months of unjustified delays caused by
complete inactivity or by lack of efficiency on the part of the
District Court.
The
Constitutional Court determined the amount of the just satisfaction
to be awarded to the applicant on an “equitable basis”
and with reference to Article 41 of the Convention.
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 his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
A. Admissibility
The
Government objected that, to the extent the proceedings had been
reviewed and the applicant granted compensation by the Constitutional
Court, he could no longer be considered a “victim” within
the meaning of Article 34 of the Convention. They maintained that the
Constitutional Court had examined the applicant's constitutional
complaint thoroughly and that the amount of just satisfaction awarded
complied fully with the Constitutional Court's practice on the point.
Moreover, the proceedings before it had been easily accessible to the
applicant, they had been speedy and had been conducted in the
applicant's language and the compensation had been paid to him
without any delay.
They
further submitted that the applicant could have raised the issue of
any possible recurring delays in the proceedings in the period after
the Constitutional Court's judgment (nález)
by way of a fresh complaint under Article 127 of the
Constitution. As he had not done so, he had failed to exhaust
domestic remedies as required by Article 35 § 1 of the
Convention.
As
for the substance of the complaint, the Government admitted, with
reference to the Constitutional Court's finding of 4 June 2003, that
the applicant's right to a hearing within a reasonable time had been
violated.
The
applicant argued that the amount of just satisfaction awarded by the
Constitutional Court was unacceptably low, that the injunction for an
acceleration of the proceedings had been ineffective and that he was
not required to complain to the Constitutional Court again.
The
Court observes that, in view of the Constitutional Court's judgment
of 4 June 2003, a question arises as to whether the applicant can
still claim to be a “victim”, within the meaning of
Article 34 of the Convention, of a violation of his right to a
hearing within a reasonable time.
The
Court observes that in the present case 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, most recently, Scordino v. Italy (no. 1)
[GC], no. 36813/97, §§ 178-213, ECHR 2006-... and
Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98,
ECHR 2006-...).
At
the time of the Constitutional Court's judgment, the length of the
proceedings was more than 7 years for a single level of jurisdiction.
The Constitutional Court awarded the applicant the equivalent of
approximately 525 euros (EUR) in respect of non-pecuniary damage.
This amount is far below 20% of what the Court would generally award
in a similar case against Slovakia. After the Constitutional Court's
judgment, the proceedings continued for 2 years and more than 3
months before a single instance and are still pending on appeal. In
these circumstances, the redress obtained by the applicant at the
domestic level must be considered insufficient (see Scordino (no.
1), cited above, §§ 205-06 and 214-15). The applicant
can accordingly still claim to be a “victim” of a breach
of the “reasonable time” requirement.
As
for the argument of the respondent Government concerning the repeated
recourse to the remedy under Article 127 of the Constitution, the
Court reiterates that an applicant is not required to resort
repeatedly to a remedy in respect of the length of proceedings
where the effects produced by the decision of the competent authority
in response to that applicant's first use of that remedy do not
satisfy the criteria applied by the Court. Such is the case, for
example, where the domestic authority, unlike the Court, concluded
that the length of the proceedings in issue was not excessive; or
where a low amount of just satisfaction was granted, due
consideration being given in this connection, if appropriate, to
whether or not the proceedings were subsequently accelerated in
accordance with the domestic authority's order; or where the remedy
in issue was incapable of providing redress in respect of the overall
length of the proceedings complained of (see Sukobljević v.
Croatia, no. 5129/03, § 52, 2 November 2006; Sika
v. Slovakia, no. 2132/02, § 31, 13 June 2006; Šidlová
v. Slovakia, no. 50224/99, §§ 49 and 50, 26 September
2006, Tomláková v. Slovakia, no. 17709/04, §§
34-35, 5 December 2006 and Becová v. Slovakia (dec.),
no. 23788/06, 18 September 2007). This above list is not exhaustive.
From
the conclusion in paragraph 31 above it follows that, unlike in the
case of Becová (cited above), in the case at hand the
Constitutional Court's decision cannot be considered to be compatible
with Convention principles (see Sukobljević, cited above,
§ 45). The present case also differs from Becová in
that the present application was introduced without substantial delay
after the Constitutional Court's judgment.
In
view of the above considerations the Court finds that the applicant
was not required, for the purposes of Article 35 § 1 of the
Convention, to resort to the remedy under Article 127 of the
Constitution anew.
The
complaint, accordingly, cannot be rejected for non-exhaustion of
domestic remedies.
The
period to be taken into consideration began on 10 November 1995
and has not yet ended. It has thus lasted 12 years for 2 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 and having regard to its
case-law on the subject as well as the above-mentioned admission by
the Government, 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
applicant claimed SKK 180,000
in respect of non-pecuniary damage.
The
Government contested the claim and invited the Court to determine the
amount of the award in accordance with the “subject value”.
The
Court considers that the applicant must have sustained non-pecuniary
damage. Ruling on an equitable basis, and having regard to its
case-law on the subject (see the recapitulation of the relevant
principles and, mutatis mutandis, their application in
Scordino (no. 1), cited above, §§ 267-272), and
taking into account that the applicant has already obtained some just
satisfaction under the Constitutional Court's judgment of 4 June
2003, it awards him EUR 4,350 under that head.
B. Costs and expenses
The
applicant also claimed SKK 2,000
for the costs and expenses incurred before the domestic courts and
the Court.
The
Government had no objections in respect of this claim.
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 claim in full to cover costs under all heads.
It therefore awards the applicant EUR 60.
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
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 4,350 (four
thousand three hundred and fifty euros) in respect of non-pecuniary
damage and EUR 60 (sixty 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 applicant's 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
