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SVARC AND KAVNIK v. SLOVENIA - 75617/01 [2007] ECHR 123 (8 February 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/123.html
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[2007] ECHR 123
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THIRD
SECTION
CASE OF ŠVARC AND KAVNIK v. SLOVENIA
(Application
no. 75617/01)
JUDGMENT
STRASBOURG
8 February 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 Švarc and Kavnik v. Slovenia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr J. Hedigan, President,
Mr B.M.
Zupančič,
Mr V. Zagrebelsky,
Mrs A.
Gyulumyan,
Mr E. Myjer,
Mrs I. Ziemele,
Mrs I.
Berro-Lefèvre, judges,
and Mr V. Berger, Section
Registrar,
Having
deliberated in private on 18 January 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 75617/01) against the
Republic of Slovenia lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by two Slovenian nationals, Mrs Anita Švarc and Mr Ivan
Kavnik (“the applicants”), on 26 July 2000.
The
applicants were represented by the Verstovšek
lawyers, members of the Slovenian Bar.
The Slovenian Government (“the Government”)
were represented by their Agent, Mr L. Bembič, State
Attorney-General.
The applicants alleged under Article 6 § 1 of the
Convention that they did not have a fair trial by an impartial
tribunal because their constitutional complaint was decided by a
panel of judges that included a judge who had issued an expert
opinion in the proceedings before the first-instance court. They
further alleged that the length of the proceedings to which they were
a party before the domestic courts had been excessive. In substance,
they also complained about the lack of an effective domestic remedy
in respect of the excessive length of the proceedings (Article 13 of
the Convention).
On
11 October 2005 the
Court decided to communicate the complaints concerning the length of
the proceedings and the lack of remedies in that respect to the
Government. Applying Article 29 § 3 of the Convention, it
decided to examine the merits of the application at the same time as
its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
Mrs
Anita Švarc was born in 1968 and lives in Vuzenica. Ivan
Kavnik was born in 1956 and lives in Topolščica.
On
30 October 1989 the applicants were injured in a car accident in
Austria. The accident resulted in the premature birth of their son,
who sustained in utero injuries in the accident. The son died
in hospital in Slovenj Gradec (Slovenia) on 28 December 1989. The
perpetrator of the accident had taken out insurance with the
insurance company Wiener Allianz Versicherungs Aktiengesellschaft
(“WA”).
On
27 October 1992 the applicants instituted civil proceedings against
WA in the then Celje Basic Court, Velenje Branch (Temeljno sodišče
v Celju, Enota v Velenju), seeking damages of 3,237,900 Slovenian
tolars for the injuries sustained in the car accident and the
non-pecuniary damage sustained following the death of their son.
On 4
January 1993 Mr Lojze Ude, a professor at the Faculty of Law in
Ljubljana, delivered an expert opinion in the case at the request of
WA. He stated that the Slovenian courts had no jurisdiction to
examine the applicants' claims. At the time, Mrs Dragica Wedam-Lukić
was a work colleague of Mr Ude.
On 6
January 1993 WA lodged preliminary written submissions arguing that
the case was not within the court's jurisdiction. They attached the
opinion prepared by Mr Ude to the submissions, which were included in
the file and served on the applicants.
On 25
May 1993 Mr Ude was appointed as a justice at the Constitutional
Court (Ustavno sodišče).
On 22
February 1994 the Celje Basic Court, Velenje Branch, held a hearing.
On 18
and 25 February 1994 the applicants lodged preliminary written
submissions contesting Mr Ude's opinion and WA's arguments.
On 22
April 1994 a decision dated 22 February 1994, the date on which the
hearing was held, was served on the applicants. The court decided
that the case was not within its jurisdiction, but made no explicit
reference to Mr Ude's opinion.
On 4 May 1994 the applicants lodged an appeal with the
Celje Higher Court (Višje sodišče v Celju).
On 28
June 1994 the Convention took effect with respect to Slovenia.
On 23
August 1994, on a request by the Celje Higher Court, the
first-instance court delivered a supplementary decision concerning
the costs of the proceedings.
On 1
September 1994 the applicants appealed against the decision
concerning costs.
On 14
December 1994 the Celje Higher Court dismissed both applicants'
appeals.
On
14 February 1995 the applicants lodged an appeal on points of law
with the Supreme Court (Vrhovno sodišče) against
the decision of 14 December 1994.
On 27
February 1997 the Supreme Court dismissed the appeal on points of law
against the judgment of 22 February 1994 and rejected the appeal
against the decision of 23 August 1994 as inadmissible.
On
22 May 1997 the applicants lodged a constitutional appeal with the
Constitutional Court (Ustavno sodišče). In their
appeal, they made no reference to Mr Ude's opinion.
On 1
April 1998 Mrs Wedam-Lukić was appointed as a justice at the
Constitutional Court.
On 24
March 2000 the Constitutional Court declared the appeal inadmissible
as manifestly ill-founded. Mr Ude was the president of the
three-judge bench which examined the admissibility of the case and
Mrs Wedam-Lukić was also a member of that bench. The
applicants learned of the composition of the panel on 20 April 2000,
the date on which the decision was served on them.
II. RELEVANT DOMESTIC LAW
A. The 1991 Constitution
The
relevant provision of the Constitution of the Republic of Slovenia
(Ustava Republike Slovenije) reads as follows:
Article 23
“Everyone has the right to have any decision
regarding his or her rights, obligations and any charges brought
against him or her made without undue delay by an independent,
impartial court constituted by law.
Only a judge appointed pursuant to rules pre-established
by law and in accordance with normal judicial practices shall try
such a person.”
B. The Constitutional Court Act 1994
The
relevant provisions of the Constitutional Court Act (Zakon
o ustavnem sodišču) read as follows:
Section 31
“In deciding on a particular case, the
Constitutional Court may disqualify a judge of the Constitutional
Court by applying, mutatis mutandis, the applicable reasons
for disqualification in court proceedings.
The following shall not serve as reasons for
disqualification from the proceedings:
- participation in legislative procedures or in adoption
of other general acts (including those issued for exercise of public
powers) that have been challenged prior to election as a judge of the
Constitutional Court,
-
expressing a scientific opinion on a legal matter which may be
relevant for the proceedings.”
Section 32
“Immediately after a judge of the Constitutional
Court learns of any reasons for his or her disqualification in
accordance with the preceding section, he or she must cease ... work
on the case and notify the president of the Constitutional Court.”
Section 33
“A request for disqualification may be submitted
by the parties to the proceedings up until the start of a public
hearing, if such hearing is due to be held, or until the beginning of
the in camera session of the Constitutional Court at which the matter
is to be decided. The request must be substantiated.
The judge of the Constitutional Court whose
disqualification is sought shall have the right to comment on the
statements in the request, but may not participate in the decision on
his or her disqualification. The Constitutional Court shall decide in
camera upon the disqualification of a judge. If the number of votes
for and against is equal, the president shall have the casting vote.”
Section 50
“Anyone who believes that his or her human rights
and basic freedoms have been infringed by a particular act of a state
body, local body or statutory authority may lodge a constitutional
appeal with the Constitutional Court, subject to compliance with the
conditions laid down by this Act. ...”
Section 51
“A constitutional appeal may be lodged only after
all legal remedies have been exhausted.
Before all special legal remedies have been exhausted,
the Constitutional Court may exceptionally hear a constitutional
appeal if a violation is probable and the appellant will suffer
irreparable consequences as a result of a particular act.”
Section 54
“A decision on whether to accept a constitutional
complaint and begin proceedings shall be taken by the Constitutional
Court, sitting in a three-judge bench, at an in camera session...”
C. The Civil Procedure Act 1999
The
relevant provisions of the Civil Procedure Act (Zakon o pravdnem
postopku) read as follows:
Section 70
“A judge or a lay judge shall be prohibited from
exercising judicial functions:
(1) if he or she is a party to the civil proceedings, is
a representative or an advocate of a party... or was heard as a
witness or an expert in the same proceedings...
(5) if he or she participated in the same proceedings
before a lower court...
(6) if other circumstances raise doubt about his or her
impartiality.”
Section 72
“The parties to the proceedings may also seek the
disqualification of a judge.
A party must seek the disqualification of a judge or a
lay judge as soon as he or she learns of the reason for
disqualification, but no later than by the end of the hearing in the
competent court or, when no hearing was held, by the time the
decision is rendered.
In the disqualification request, the party must state
the circumstances on which his or her request for disqualification is
based.”
Section 74
“As soon as a judge or a lay judge learns of the
request for his or her disqualification, he or she must cease any
activity in the proceedings concerned; if the challenged is lodged
under point 6 of section 70, he or she may continue examination of
the case.
If a judge is disqualified in accordance with point 6 of
section 70 of this Act, the procedural activities he or she performed
after the request for disqualification was lodged shall have no legal
effect. ”
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTION
The
Government claimed that the application had been lodged out of the
prescribed six months time-limit. They submitted that the impugned
proceedings had actually ended on 20 March 1997, the date on which
the Supreme Court's decision had been served on the applicants. In
their view, that had been the last ordinary legal remedy available to
the applicants. The present application was lodged after 20 September
1997, the date on which the deadline for submitting the application
had expired.
The
Court points out that, in several cases against Slovenia, the
Government have argued that a constitutional appeal to the
Constitutional Court is an effective legal remedy. In the present
case also, the Government argued that the applicants should have
availed themselves of this remedy with regard to their complaints
concerning the excessive length of proceedings (see paragraph 19
below). It further recalls that it has dismissed complaints
which applicants failed to raise in due form and substance in
proceedings before the Constitutional Court. (see, for example,
Tričković v. Slovenia, no. 39914/98, Commission
decision of 27 May 1998). In addition, the constitutional appeal was
considered an ineffective remedy only in the context of
length-of-proceedings complaints (see Belinger v. Slovenia
(dec.), no. 42320/98, 2 October 2001; and Lukenda v.
Slovenia, no. 23032/02, 6 October 2005).
The
Court does not see any reason to depart from its established
case-law. In the present case, the applicants lodged a constitutional
appeal challenging the constitutionality of the lower courts'
decisions, which was declared inadmissible on 24 March 2000 and
served on the applicants on 20 April 2000. They lodged their
application with the Court on 20 July 2000, which is well
within the prescribed six-month time-limit.
The
Court therefore dismisses the Government's preliminary objection.
II. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE
CONVENTION
The
applicants complained that the bench of the Constitutional Court
which decided on the admissibility of their constitutional appeal was
biased because Mr Ude and Mrs Dragica Wedam-Lukić were sitting
on it. They further alleged that the proceedings to which they were a
party were excessively long. They relied on Article 6 § 1 of the
Convention, which provides:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [an] ... impartial tribunal...”
In
substance, the applicants further complained that the remedies
available in respect of excessive legal proceedings in Slovenia were
ineffective. Article 13 of the Convention reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. Admissibility
1. As to the length of the proceedings
The
Government maintained that the domestic remedies had not been
exhausted. They submitted, inter alia, that, under the
Constitutional Court Act 1994, any person may lodge a constitutional
complaint alleging a breach of his or her human rights.
The
applicants contested that argument, claiming that the remedies
available were not effective.
The
Court notes that the present application is similar to the cases of
Belinger and Lukenda (see Belinger v. Slovenia
(dec.), cited above; and Lukenda v. Slovenia, cited above). In
those cases the Court dismissed the Government's objection of
non-exhaustion of domestic remedies, finding that the legal remedies
at the applicants' disposal were ineffective.
The
Court finds that the Government have not submitted any convincing
arguments in the instant case which would require the Court to
distinguish it from its established case-law.
The
Court further notes that this part of the application is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. Nor is it inadmissible on any other grounds. It must
therefore be declared admissible.
2. As to the impartiality
The
Government maintained that the domestic remedies had not been
exhausted. They claimed that the applicants neither referred in their
constitutional appeal to the fact that Mr Ude's expert opinion was
submitted to the first-instance court, nor did they attach that
opinion to their appeal. Although the composition of the
Constitutional Court had been known to the public, and therefore also
to the applicants, they had never sought Mr Ude's withdrawal.
Their concern about possible bias on the part of the said justice was
raised for the first time in their application to the Court. Since
they had failed to challenge Mr Ude in accordance with the applicable
domestic provisions, this complaint should be declared inadmissible.
Further
on in their observations, however, the Government argued that Mr
Ude's opinion was merely a scientific opinion in the case. They
alleged that, according to section 31 of the Constitutional Court Act
1994, such an opinion was not a reason for a judge to step down.
The
applicants made no reply.
The
Court recalls that, in accordance with Article 35 of the Convention,
it is not required to decide whether or not the facts alleged by the
applicant disclose any appearance of a violation, unless all domestic
remedies have been exhausted according to the generally recognised
rules of international law (see, for example, Tričković,
cited above). It falls to a Government pleading non-exhaustion to
prove that the remedy in question was available to the applicant in
theory and in practice at the material time. Once this burden of
proof has been discharged, it is incumbent on the applicant to
establish that the remedy relied on by the Government was in fact
exhausted or was inadequate and ineffective in the particular
circumstances of the case, or that there existed special
circumstances absolving him or her from the requirement (see Lukenda,
cited above, §§ 43 and 44).
Furthermore,
the applicant is generally required to raise in substance and in due
form in the domestic proceedings the complaints addressed to the
Court, including the procedural means that might have prevented a
breach of the Convention (see Barberà, Messegué and
Jabardo v. Spain, judgment of 6 December 1988, Series A no. 146,
§ 59).
In
the present case, the Court notes that the applicants neither
challenged the impugned judge in their constitutional appeal nor
called the Constitutional Court's attention to Mr Ude's prior role in
the proceedings. Even though the applicants did not know which of the
Constitutional Court's judges would examine the admissibility of
their complaints, they could have sought in their constitutional
appeal that Mr Ude be excluded from reviewing their appeal, in
accordance with the relevant domestic legislation. In this much, the
Court allows the Government's arguments.
However, the Court observes that the Government have also submitted
that, in application of section 31 § 2 of the Constitutional
Court Act 1994, it would have been futile to seek Mr Ude's withdrawal
on the ground that he had delivered an opinion in this particular
case when it was pending before the first-instance court. In the
absence of any argument or case-law that would prove the opposite,
the Court accepts this line of reasoning. In such circumstances, it
is the Court's opinion that the Government have not shown that, in
the circumstances of this case, seeking Mr Ude's withdrawal, was a
remedy which the applicants were requested to exhaust for the
purposes of Article 35 § 1 of the Convention.
The
Government did not allege that the applicants should have availed
themselves of any other remedies.
Consequently,
the objection of non-exhaustion must be rejected.
The
Court further notes that this part of the application is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. Nor is it inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. As to the length of the proceedings
(a) Article 6 § 1
In determining the relevant period to be taken into
consideration, the Court notes that the proceedings in issue began
prior to 28 June 1994, the date on which the Convention took effect
with respect to Slovenia. Given its jurisdiction ratione temporis,
the Court can only consider the period which have elapsed since that
date, although it will have regard to the stage reached in the
proceedings in the domestic courts on it (see, for instance,
Belinger, cited above, and Kudła v. Poland [GC],
no. 30210/96, § 123, ECHR 2000-XI). The period to be taken
into consideration thus began on 28 June 1994, the date on which
the Convention entered into force with respect to Slovenia, and ended
on 20 April 2000, the day the Constitutional Court's decision was
served on the applicants. It therefore lasted nearly five years and
ten months for three levels of jurisdiction.
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 considers that the impugned proceedings were of importance to
the applicants and were of no particular complexity. No hearings
were held during the relevant period, no additional facts sought, no
experts appointed, and no additional evidence taken. The applicants
did not contribute to the length of the proceedings. The fact that
they availed themselves of domestic legal remedies was not tantamount
to a breach of their procedural rights and did not make the
proceedings more intricate. In the present case, the entire relevant
period is imputable to the State.
Having
examined all the material submitted to it, and 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.
(b) Article 13
The
Court reiterates that Article 13 guarantees an effective remedy
before a national authority for an alleged breach of the requirement
under Article 6 § 1 to hear a case within a reasonable time (see
Kudła, cited above, § 156). It notes that the
objections and arguments put forward by the Government have been
rejected in earlier cases (see Lukenda, cited above) and sees
no reason to reach a different conclusion in the present case.
Accordingly,
the Court considers that in the present case there has been a
violation of Article 13 on account of the lack of a remedy under
domestic law whereby the applicants could have obtained a ruling
upholding their right to have their case heard within a reasonable
time, as enshrined in Article 6 § 1.
2. As to the impartiality
The
applicants alleged that the panel of three judges of the
Constitutional Court which declared their constitutional appeal
inadmissible was biased, in that it had been presided over by Mr Ude
and Mrs Wedam-Lukić was a member of it.
The
Government first emphasised the distinction of the two roles played
by Mr Ude in the impugned proceedings. Before the first-instance
court, he delivered a scientific opinion, widely accepted in legal
theory, on the jurisdiction of the Slovenian courts. As a justice of
the Constitutional Court, he was deciding on the admissibility of the
applicants' complaints under Article 22 of the Constitution, which
guarantees equal protection of rights. The relevant Constitutional
Court decision did not concern the merits of the applicants'
complaints, nor did it refer to Mr Ude's scientific opinion. In any
event, the applicants did not submit the said opinion with their
constitutional appeal, nor did any of the decisions by the lower
courts refer to it. Moreover, Mr Ude's expert opinion concerned
questions that were not the focus of the domestic courts.
The
Government have referred to the Court's findings in the case of
Delange and Magistrello v. France and claimed that the mere
fact that a judge actively participated in the preliminary
proceedings to which the applicant was a party and had detailed
knowledge of the facts of the case was not sufficient to raise any
doubts as to his impartiality when he was presiding over the case
later on in the proceedings (see Delage and Magistrello v. France
(dec.), no. 40028/98, ECHR 2002 III). They further
emphasised the distinction between the present case and that of
Pescador Valero v. Spain, because Mr Ude had not been in a
close relationship with the applicants' adversary (see Pescador
Valero v. Spain, no. 62435/00, ECHR 2003 VII).
According
to the Court's constant case-law, when the impartiality of a tribunal
for the purposes of Article 6 § 1 is being determined,
regard must be had to the personal conviction and behaviour of a
particular judge in a given case – the subjective approach –
as well as to whether it afforded sufficient guarantees to exclude
any legitimate doubt in this respect – the objective approach
(see Kyprianou v. Cyprus [GC], no. 73797/01, § 18,
ECHR 2005 ...; Thomann v. Switzerland, judgment of 10
June 1996, Reports of Judgments and Decisions 1996-III, p.
815, § 30; and Predojević, Prokopović, Prijović,
and Martinović v. Slovenia (dec.), nos. 43445/98, 49740/99,
49747/99, 54217/00, 9 December 2004).
Firstly,
as to the subjective test, the tribunal must be subjectively free of
personal prejudice or bias. In this respect, the personal
impartiality of a judge must be presumed until there is proof to the
contrary (see, among other authorities, Padovani v. Italy,
judgment of 26 February 1993, Series A no. 257-B, p. 20, § 26,
and Morel v. France, no. 34130/96, § 41, ECHR 2000-VI).
In
the present case, in the absence of any evidence to the contrary,
there is no reason to doubt Mr Ude's personal impartiality.
Secondly, under the objective test, it must be
determined whether, quite apart from the judge's personal conduct,
there are ascertainable facts which may raise doubts as to his
impartiality, since “justice must not only be done; it must
also be seen to be done”. In this respect even appearances may
be of a certain importance. What is at stake is the confidence which
the courts in a democratic society must inspire in the public (see
Morris v. the United Kingdom, no. 38784/97, § 58,
ECHR 2002-I). Accordingly, any judge in respect of whom there is
a legitimate reason to fear a lack of impartiality must withdraw.
This implies that in deciding whether in a given case there is a
legitimate reason to fear that a particular judge lacks impartiality,
the standpoint of the party concerned is important but not decisive.
What is decisive is whether this fear can be held to be objectively
justified (see, among many other authorities, Pescador Valero v.
Spain, cited above, § 23).
When
determining the objective justification of the applicant's fear, such
factors as the judge's dual role in the proceedings, the time which
elapsed between the two participations, and the extent to which the
judge was involved in the proceedings may be taken into consideration
(see, for example, Walston v. Norway, no. 37372/97, 3
June 2003; Wettstein v. Switzerland, no. 33958/96, ECHR
2000 XII; and McGonnell v. the United Kingdom, no.
28488/95, ECHR 2000 II).
In
this regard, the Court notes that the applicants did not challenge
any member of the Constitutional Court at the time they lodged a
constitutional appeal, nor did they attach Mr Ude's opinion to the
said appeal or refer to it therein. The Court acknowledges that well
over four years and four months elapsed between the date on which Mr
Ude delivered the opinion and the date on which the applicants lodged
a constitutional appeal. An additional two years and ten months
passed before the Constitutional Court delivered a decision on the
admissibility of the applicants' appeal. There is no indication in
the observations made by the parties that Mr Ude was either reminded
of his prior involvement in this particular case or that his opinion
was included in the case file before the Constitutional Court.
The
Court observes, in general, that there is a risk of problems arising
in a system which lacks safeguards to ensure that judges are reminded
of their prior involvement in particular cases, above all where such
matters rely on the judges' own assessment, which may, inevitably,
suffer from a lack of recollection of a particular instance of prior
involvement (see Puolitaival and Pirttiaho v. Finland, no.
54857/00, § 44, 23 November 2004). However, the Court
refers to its findings with regard to the Government's preliminary
objections (see paragraph 27 above) and will not expand further on
this subject, because its role in the proceedings at hand is confined
to the question of whether the applicant's fears about Mr Ude's and
Mrs Wedam-Lukić's impartiality were legitimate, given the
relations between the two judges and the other party to the
proceedings, and whether these relations cast doubt on the judges'
objective impartiality.
To
this end, the Court observes that, at WA's request, Mr Ude delivered
an opinion on whether the Slovenian courts had jurisdiction to
examine the applicants' claims in the impugned proceedings. This
opinion was served on the applicants, who objected to it in their
submissions to the first-instance court, and was included in the case
file. The outcome of the proceedings was in line with Mr Ude's
opinion, although the court's decision made no reference to it. When
the applicants received the decision of the Constitutional Court,
they were informed that Mr Ude had been the president of the bench
and that Mrs Wedam-Lukić also sat on the bench.
As
to Mrs Wedam-Lukić's alleged partiality, the Court considers
that the applicants' fear has no legitimate ground. She had been a
colleague of Mr Ude at the Faculty of Law in Ljubljana when the
latter delivered his opinion in the applicants' case. She was not
directly involved in the impugned proceedings prior to sitting on the
Constitutional Court's bench, and the applicants' assertions that she
might have had previous knowledge of the case solely by virtue of
working in close proximity to Mr Ude at the material time is too
vague to procure any objective doubt of her impartiality.
On
the contrary, Mr Ude did have a detailed knowledge of the facts of
the case and had been retained by the applicant's adversaries in the
proceedings before the first-instance court, essentially as a
professional expert. His role as a justice of the Constitutional
Court was, admittedly, quite different, and was limited to
determination of the admissibility of the applicants' complaints made
under the Constitution. Nonetheless, the Court finds that due to his
previous involvement in the proceedings, the impartiality of the
“tribunal” was open to doubt, not only in the eyes of the
applicants but also objectively.
There
has accordingly been a violation 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
Mrs
Švarc claimed 43,500 euros (EUR) and Mr Kavnik EUR 16,000 in
respect of the non-pecuniary damage sustained on account of the
unduly long proceedings. They made no claim with regard to their
complaints concerning the partiality of the Constitutional Court.
The
Government contested the claim.
The
Court considers that the applicants must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards each of the
applicants EUR 1,000 under that head.
B. Costs and expenses
The
applicants also claimed approximately EUR 2,200 for the costs and
expenses incurred before the Court.
The
Government argued that the claim was too high.
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 applicants the sum of EUR 1,000 for the
proceedings before the Court.
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 as regards the impartiality of the
Constitutional Court;
Holds that there has been a violation of Article
6 § 1 of the Convention in respect of the length of proceedings;
Holds that there has been a violation of Article
13 of the Convention;
Holds
(a) that
the respondent State is to pay the applicants, 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) each in respect of non-pecuniary damage and
EUR 1,000 (one thousand euros) jointly in respect of costs and
expenses, 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'
claims for just satisfaction.
Done in English, and notified in writing on 8 February 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Vincent
Berger John Hedigan
Registrar President
