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VICANOVA v. SLOVAKIA - 3305/04 [2007] ECHR 1116 (18 December 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/1116.html
Cite as:
[2007] ECHR 1116
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FOURTH
SECTION
CASE OF VIČANOVÁ v. SLOVAKIA
(Application
no. 3305/04)
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 Vičanová 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. 3305/04) 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, Ms Vlasta
Vičanová (“the applicant”), on 16 January
2004.
The
Slovak Government (“the Government”) were represented by
their Agent, Ms M. Pirošíková.
On
13 April 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
applicant was born in 1958 and lives in Prievidza.
A. Action
On
14 September 1995 the applicant brought an action against her former
husband in the Trnava District Court (Okresný súd)
seeking the division and distribution of their matrimonial property.
She submitted that following their divorce in 1993 the defendant had
taken possession of all their property and that she had been forced
to leave their household and was living in a sub-leased flat.
Between
1996 and 2002 the District Court held 7 hearings. The action was
assigned, in turn, to 4 different judges.
On
30 October 2002 the District Court appointed an expert to draw up a
report on the property to be divided.
On
20 December 2002 the applicant raised objections as to the expert's
qualifications. The District Court dismissed them and ruled on the
expert's fees on 5 and 17 February 2003, respectively. The decision
of 5 February 2003 was upheld on the applicant's appeal on 31
July 2003.
On
4 January 2004 the District Court sent a reminder to the expert who
finally filed the report on 14 January 2004. The applicant
subsequently filed her comments and objected that not all items in
the matrimonial regime had been included in the expert's report. On
26 April 2004 the District Court asked the applicant to complete her
comments and the defendant and the expert responded to them on 12 and
13 May 2004, respectively.
On
19 August 2004 the District Court again ruled on the expert's fees.
In this period it also took steps with a view to establishing the
applicant's material situation.
On
25 November 2004 the applicant informed the District Court that the
defendant had died on 29 October 2004 in a traffic accident.
On
10 January 2005 the District Court held a hearing which was adjourned
in order to obtain information about the proceedings on the
settlement of the defendant's estate.
On
24 January 2005 the notary who was conducting the inheritance
proceedings as an official of the court informed the District Court
of the state of the inheritance proceedings.
On
1 April 2005 the District Court stayed the proceedings in the
applicant's action pending the outcome of the inheritance
proceedings.
On
26 August 2005 the notary issued an inheritance decree (osvedčenie
o dedičstve) dividing and distributing the estate among the
late defendant's three children. It became final on the same day.
On
8 December 2005 the District Court requested the defendant's heirs to
submit their observations in reply to the action. On 15 February 2006
the District Court ordered that the request be served on two of the
heirs by the police. The requests were returned on 10 March 2006 as
undeliverable.
In
April and July 2006 the District Court made inquiries with a view to
establishing the address of the two heirs and ensuring the service of
court correspondence on them.
In
May and September 2006, respectively, the District Court appointed
official representatives (opatrovník) to act on behalf
of the missing heirs and to receive official correspondence in the
proceedings.
On
9 October 2006 the District Court held a hearing at which the
applicant submitted that the defendants to the action were her late
husband's three children and two siblings with whom she had no
contact.
In
October and November 2006 and April 2007 the District Court made
further inquiries with a view to establishing the addresses of some
of the defendants. In January 2007 it appointed an official
representative to act on behalf of one of them.
The
proceedings are still pending.
B. Constitutional complaint
On
18 February 2002 the applicant lodged a complaint under Article 127
of the Constitution with the Constitutional Court (Ústavný
súd) in respect of the length of the proceedings in her
action.
On
28 October 2002 the applicant provided further and better particulars
of her complaint through a lawyer who had been officially appointed
for her. She claimed 90,000 Slovakian korunas
(SKK) in just satisfaction for non pecuniary damage.
In
his observations in reply to the complaint, the President of the
District Court submitted, inter alia, that the essential
problem in relation to the processing of cases in general was the
insufficient number of judges.
On
11 December 2002 the Constitutional Court found that the District
Court had violated the applicant's right under Article 48 § 2 of
the Constitution to a hearing without unjustified delay; ordered the
District Court to proceed with the matter promptly and awarded the
applicant SKK 50,000
by way of compensation in respect of non-pecuniary damage.
The
Constitutional Court discerned no factual or legal complexity in the
subject-matter of the proceedings. No significant delays could be
imputed to the applicant.
However,
there was nothing to justify the fact that the proceedings were still
pending at first instance without a single decision on the merits
having been taken and without obtaining the necessary expert evidence
after more than 7 years. The District Court's conduct of the entire
proceedings had been marked by inactivity or inefficient activity
over a period of almost 5 years (from 1997 to 3 June 2002). The
amount of just satisfaction was determined on an equitable basis.
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, she 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.
The
Government considered that the present case could be compared to
Dubjaková which the Court had declared inadmissible
(see Dubjaková v. Slovakia (dec.), no. 67299/01, 19
October 2004), having concluded that the amount of compensation
obtained by the applicant in that case at the national level for the
length of her proceedings had not been unreasonable and that,
consequently, she had lost her status of a “victim”
in the Convention sense. The Government pointed out that in the
Court's assessment of the “victim” status of that
applicant no specific consideration had been given to the preventive
aspect of the redress obtained by her at the national level.
The
Government 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.
They argued that repeated examination by the Constitutional Court of
the length of proceedings before the ordinary courts had been
accepted by the Court as leading to the deprivation of the “victim”
status of Ms Dubjaková (cited above) as well as Ms
Končeková (see Končeková v.
Slovakia (dec.), no. 63946/00, 9 May 2006). As the
applicant had not done so, she had failed to exhaust domestic
remedies, as required by Article 35 § 1 of the Convention.
Nevertheless,
as for the substance of the application, the Government admitted,
with reference to the Constitutional Court's finding of 11 December
2002, that it was not manifestly ill-founded.
The
applicant disagreed and submitted that she had exhausted all remedies
available to her at the national level.
The
Court observes that, in view of the Constitutional Court's judgment
of 11 December 2002, 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 her 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 her 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-...). These include, most notably, the amount of the
compensation awarded to the applicant and the effectiveness of the
preventive measure applied (see Sika v. Slovakia (no. 3), no.
26840/02, § 54, 23 October 2007).
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
without a single decision on the merits having been taken. The
Constitutional Court found that the conduct of the entire proceedings
had been marked by inactivity or inefficient judicial activity which
amounted to almost 5 years and awarded the applicant the equivalent
of approximately 1,300 euros (EUR) in respect of non-pecuniary
damage. This amount is approximately 20% of what the Court would
generally award in a similar situation in a Slovakian case. Although
this amount of just satisfaction is relatively low, it does not of
itself necessarily mean that it is incompatible with the Convention
principles.
In
its judgment, the Constitutional Court ordered the acceleration of
the proceedings. However, after its judgment, the proceedings
continued for more than 4 years and 10 months without a single
decision on the merits having been taken. The proceedings are still
pending before the first-instnce court. This raises doubts as to what
preventive effect, if any, the Constitutional Court's injunctions
actually had in accelerating the proceedings.
In
view of the low amount of just satisfaction awarded by the
Constitutional Court in combination with the ineffectiveness of its
injunction to speed up the proceedings, the Court finds that the
redress obtained by the applicant at the national level cannot be
considered adequate and sufficient (see Scordino (no. 1),
cited above, §§ 205-06 and 214-15).
As
for the Government's comparative argument concerning the case of
Dubjaková, the Court observes that, in contrast to the
present case, the proceedings referred to in Dubjaková
had taken place before courts at two levels of jurisdiction, three
decisions on the merits had been taken prior to the Constitutional
Court's second judgement and the latter of these decisions had
produced a final resolution of the case (see Dubjaková,
cited above). The Government's argument therefore cannot be
sustained.
Accordingly,
the applicant can 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 normally 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 conclusions in paragraphs 36 and 38 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).
As
for the Government's reliance on the cases of Dubjaková
and Končeková, the Court would observe that the
Constitutional Court's first examination of the length of the
proceedings in the cases of Ms Dubjaková (cited above)
and Ms Končeková (cited above) had taken place
prior to 1 January 2002, that is to say in the context of a
different legal regime (see, for example, Bánosová
v. Slovakia (dec.), no. 38798/97, 27 April 2000) than the second
examination (see, for example, 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). The Court recalls in
this connection that constitutional remedies available for length of
proceedings complaints in Slovakia prior to 1 January 2002 were not
considered effective in the Convention sense (see Eštok v.
Slovakia (dec.), no. 63994/00, 28 September 2004). The
Government's argument therefore cannot be sustained.
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
application, accordingly, cannot be rejected for non-exhaustion of
domestic remedies.
The
period to be taken into consideration began on 14 September 1995 and
has not yet ended. It has thus lasted more than 12 years and 1 month
for a single level 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
applicant claimed compensation in respect of non-pecuniary damage in
an amount between SKK 500,000
and 750,000.
She submitted no claim in respect of pecuniary damage.
The
Government contested the claim made.
The
Court considers that the applicant must have sustained non-pecuniary
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 11 December
2002, it awards her EUR 5,500 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 5,500 (five
thousand five hundred euros) in respect of non-pecuniary damage, the
above amount 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 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
