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SPANIR v. SLOVAKIA - 39139/05 [2007] ECHR 1114 (18 December 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/1114.html
Cite as:
[2007] ECHR 1114
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FOURTH
SECTION
CASE OF ŠPANÍR v. SLOVAKIA
(Application
no. 39139/05)
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 Španír 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. 39139/05) 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 Milan Španír
(“the applicant”), on 17 October 2005.
The
Slovak Government (“the Government”) were represented by
their Agent, Ms M. Pirošíková.
On
13 February and 12 March 2007, respectively, the President of the
Fourth Section of the Court decided to grant priority to the
application under Rule 41 of the Rules of Court and 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 1947 and lives in Palarikovo.
A. Employer and employment
The
applicant was employed in a private joint-stock company, R. The
employer published a daily newspaper ND. The applicant was assigned
to the post of head of the newspaper's secretariat.
On
29 November 2000 R. abolished the applicant's post and on 8 January
2001 it sent him a notice terminating his employment.
R.
subsequently sent the applicant another notice terminating his
employment with immediate effect. The applicant was required to leave
his job and has not worked for R. ever since.
The
termination of the applicant's employment with immediate effect was
declared null and void in a separate set of proceedings which are not
the subject-matter of the present application.
In
2004 R. ceased publishing ND, started to discontinue other activities
and relocated. R now exists on paper only.
B. Action and enforcement
On
11 June 2001 the applicant brought an action against R. in the
Bratislava I District Court (Okresný súd) to
have the termination of his contract of employment in January 2000
declared null and void. He later submitted a claim for damages.
In
the course of the proceedings the applicant supplemented his
statement of claim and submitted new evidence on numerous occasions.
On
11 January 2002 the District Court requested the defendant's
observations in reply. The defendant submitted them on 28 August
2002.
On
5 November and 10 December 2002 the District Court held hearings.
Following the latter hearing, on the same day, it ruled that the
termination of the applicant's employment was null and void. The
defendant appealed to the Bratislava Regional Court (Krajský
súd).
On
30 December 2002 the applicant requested that the defendant be
ordered to pay him a part of his claim for damages by way of an
interim measure. The request was dismissed on 30 January 2003 and the
applicant appealed.
On
25 June 2003 the Regional Court held a hearing following which, on
the same day, it quashed the judgment of 10 December 2002 and upheld
the decision of 30 January 2003 concerning the refusal of an interim
measure.
Between
11 November 2003 and 28 May 2004 the District Court held 4 hearings.
During this period the applicant on two occasions requested interim
measures ordering the defendant to pay a part of his claim for
damages. His request of 18 November 2003 was dismissed on
11 December 2003 and the proceedings in respect of his
request of 24 March 2004 were discontinued on 31 March 2004.
On
18 November 2003 the applicant challenged the District Court for
bias. The challenge was dismissed by the Regional Court on
2 December 2003.
On
28 May 2004 the District Court again declared the applicant's
dismissal null and void. The defendant appealed.
On
26 July 2004 the applicant requested an interim measure to freeze
the defendant's assets pending the outcome of the proceedings. He
argued that the defendant had ceased publishing the newspaper ND and
had started dissipating its assets in order to avoid criminal
prosecution (see below) and to prevent enforcement of the final
judgment in the present proceedings. The applicant lodged another
request for an interim measure on 18 August 2004.
On
8 September 2004 the District Court dismissed the request as
unsubstantiated.
A
hearing of the defendant's appeal against the judgment of 28 May 2004
was scheduled for 14 April 2005 but had to be adjourned due to the
absence of the president of the Regional Court's chamber for health
reasons.
On
28 April 2005 the Regional Court held a hearing following which, on
the same day, it upheld the judgment of 28 May 2004. At the same
time, the Regional Court ruled that its judgment could be appealed on
points of law (dovolanie) as the matter concerned a legal
issue of particular importance within the meaning of Article 238 §
3 (a) of the Code of Civil Procedure.
On
8 June 2005 R. lodged an appeal on points of law. The proceedings
were discontinued by the District Court on 18 July 2005 on the ground
that R. had failed to pay court fees. The decision was upheld on
appeal on 31 October 2005.
On
22 June 2005 the applicant commissioned a judicial enforcement
officer (súdny exekútor) to enforce the judgment
of 28 May 2004.
The
enforcement proceedings formally commenced but, in a letter of 4
August 2005, the enforcement officer informed the applicant that it
had proved impossible to trace R., its representatives and its
assets. He proposed that the applicant withdraw his enforcement
petition.
On
4 July 2006 the District Court dismissed a motion by the enforcement
officer that the proceedings be discontinued ex officio. It
was observed that the applicant disagreed with the discontinuation
and that he had identified executable assets belonging to the
defendant.
The
enforcement is still pending.
C. Constitutional complaint
On
3 January 2005 the applicant lodged a complaint under Article 127
of the Constitution with the Constitutional Court (Ústavný
súd). He complained of the length of the proceedings in
the action brought on 11 June 2001 before both the District
Court and the Regional Court and claimed 1,000,000 Slovakian korunas
(SKK) in damages.
On
16 March and 17 August 2005, respectively, the Constitutional Court
declared the complaint admissible and held a public hearing.
On
12 October 2005 the Constitutional Court found that the District
Court had violated the applicant's rights to a hearing “without
undue delay” (Article 48 § 2 of the Constitution) and
“within a reasonable time” (Article 6 § 1 of the
Convention). The Constitutional Court ordered the District Court to
pay the applicant SKK 20,000
by way of just satisfaction in respect of his non-pecuniary damage
and to reimburse his legal costs. The remainder of the applicant's
constitutional complaint was dismissed.
The
Constitutional Court found that the subject-matter of the proceedings
was not of any particular legal or factual complexity. No substantial
delays could be imputed to the applicant. Although the Constitutional
Court found no specific instances of significant inactivity on the
part of the District Court, it held that the way in which the
District Court had conducted the proceedings had been, in general,
inefficient. The Constitutional Court found no violation of the
applicant's right to a speedy trial in the proceedings before the
Regional Court. It determined the amount of just satisfaction “on
an equitable basis” and made a reference to Article 41 of the
Convention.
D. Other facts invoked by the applicant
On
30 June 2005, in response to the applicant's inquiry, the Ministry of
Justice affirmed that the average length of labour disputes which had
been resolved in the previous year was 17 ½ months.
In
September 2005 the applicant lodged two actions against R. with the
Trnava District Court to require the defendant to assign him work
under his employment contract and to pay him wages for the period
subsequent to the period covered by the judgment of 28 May 2004.
These actions were later transmitted to the Galanta District Court
which was competent to entertain them. The actions are still pending
before that court.
In
December 2005 the applicant filed a personal bankruptcy petition with
the Nové Zámky District Court. The petition was then
transmitted to the Nitra District Court on the ground that the latter
court was competent to examine it. It is still pending before that
court. The applicant is also facing the forcible sale of his house in
order to meet his debts.
The
non-payment of the applicant's wages was investigated in the context
of his criminal complaint. This has produced no material result as it
was found that R. and its representatives could not be traced.
The
applicant was granted premature retirement benefits. The amount of
his benefits was reduced by approximately 50% on the ground that in
the preceding period he had de facto received neither a salary
nor compensation for loss of salary, this being a relevant criterion.
As
a result of the litigation the applicant has been under severe
psychological stress and in 2007 suffered 2 heart attacks.
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 and was not
manifestly inadequate or insufficient in view of all the
circumstances. In support of this contention, the Government relied
on the Court's findings in the cases of Šedý
v. Slovakia (no. 72237/01, §§
74-75, 19 December 2006) and Gergouil v. France (no. 40111/98,
21 March 2000). They argued further that the proceedings before the
Constitutional Court had been easily accessible to the applicant,
speedy and conducted in the applicant's language.
As
for the enforcement proceedings, the Government argued that the
applicant could have raised the issue of possible delays 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.
The
applicant submitted that he had exhausted all remedies which had been
available to him for the purposes of Article 35 §
1 of the Convention. However, his employment dispute was still
pending and the excessive length of his proceedings had rendered the
enforcement of the final judgment practically impossible. In his
view, the amount of just satisfaction awarded by the Constitutional
Court was unacceptably low and he should not be required to seek anew
protection of his right to a hearing within a reasonable time before
the Constitutional Court.
The
Court observes that, in view of the Constitutional Court's judgment
of 12 October 2005, the question arises 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 further 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 in 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-...).
The
length of the proceedings covered by the Constitutional Court's
examination was more than 3 years and 10 months for 2 levels of
jurisdiction. The Constitutional Court awarded the applicant the
equivalent of approximately 570 euros (EUR) in respect of
non-pecuniary damage.
It
should be noted that the action concerned the applicant's dismissal
and means of subsistence. In view of the special diligence which is
necessary in such disputes (see, for example, Ruotolo v. Italy,
judgment of 27 February 1992, Series A no. 230-D, p. 39, §
17), the Court finds that this amount is below 20% of what it would
generally award in a similar case against Slovakia.
As
for the Government's comparative argument concerning the case of
Šedý, the Court observes that, in contrast to
the present case, the proceedings referred to in Šedý
concerned a property dispute and their relevant part lasted no more
than about 2 years and 5 months (see Šedý, cited
above, § 73). As for the proceedings in the case of Gergouil,
although they concerned an employment matter and their length was
comparable to that in the instant case, delays of at least one year
and two months could be imputed to the applicant (see Gergouil,
cited above, § 18) and there was no indication that they
continued in the form of enforcement following the final decision.
The Government's argument therefore cannot be sustained.
After
the Constitutional Court's judgment, the proceedings have thus far
continued for 2 years in the form of enforcement proceedings, which
should also be taken into account (see, for example, Zappia v.
Italy, judgment of 26 September 1996, Reports of Judgments and
Decisions 1996 IV, pp. 1411-1412, § 20,
Macková v. Slovakia, no. 51543/99/98, § 55, 29
March 2005 and MuZević v. Croatia, no. 39299/02, §
69, 16 November 2006). Although, formally speaking, the
proceedings on the applicant's actions brought in 2005 are not the
subject-matter of the instant application, they form a continuation
of the applicant's employment dispute and, as such, should also be
taken into consideration as part of the general background of the
case.
In
view of the above considerations, 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 45 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 The applicant was
therefore not required, for the purposes of Article 35 § 1 of
the Convention, to resort to the remedy under Article 127 of the
Constitution anew, as suggested by the respondent Government (see
Šidlová, cited above, § 49 and 50 and
Tomláková, cited above, § 35. The
application, accordingly, cannot be rejected for non-exhaustion of
domestic remedies.
The
period to be taken into consideration began on 11 June 2001 and has
not yet ended (see paragraph 43 above). It has thus lasted more than
6 years for 3 levels of jurisdiction and enforcement proceedings.
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 special diligence required in employment
disputes has already been noted above (see paragraph 42 above).
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
applicant claimed SKK 3,007,750
by way of compensation in respect of lost wages, late-payment
interest and reduced retirement benefits and also made a claim for
compensation in respect of “indirect losses” in relation
to his personal situation, career, health and family's property. He
left the amount of the award to the Court's discretion.
The
Government contested the claims made.
In
so far as the claim 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. It interprets the
applicant's claim in respect of “indirect losses” as
relating to non-pecuniary damage and considers that he must have
sustained some moral damage. Ruling on an equitable basis, 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 the fact that the applicant has already obtained
a measure of just satisfaction under the Constitutional Court's
judgment of 12 October 2005, it awards him EUR 1,000 under that head.
B. Costs and expenses
The
applicant did not submit a claim for costs and 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
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,000 (one
thousand euros) in respect of non-pecuniary damage, to be converted
into the national 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 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 December 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
