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BOHUCKY v. SLOVAKIA - 16988/02 [2007] ECHR 857 (23 October 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/857.html
Cite as:
[2007] ECHR 857
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FOURTH
SECTION
CASE OF BOHUCKÝ v.
SLOVAKIA
(Application
no. 16988/02)
JUDGMENT
STRASBOURG
23
October 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 Bohucký 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 2 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 16988/02) 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 Juraj
Bohucký
(“the applicant”), on 12 April 2002.
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
16 March 2006 the Court
decided to give notice of the application to the Government. Applying
Article 29 § 3 of the Convention, it 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 1954 and lives in Košice.
A. Civil and enforcement proceedings
On
15 December 1999 the applicant brought an action against his former
employer, a private company, in the Košice District Court
(Okresný súd). He sought a judicial order for
payment of compensation in respect of outstanding wages, leave pay,
severance pay and a food allowance. The action was filed under the
number 12C 1730/99.
On
4 January 2000 the District Court exempted the applicant from the
obligation to pay court fees. On the same day, it requested the
defendant to submit observations in reply. The defendant company
replied on 10 February 2000 submitting, inter alia, that
the reason why it had not paid the amounts claimed was lack of means.
On
24 February 2000 the District Court requested the applicant
to comment on the defendant's observations in reply which the
applicant did on 20 March 2000.
In
letters of 20 March and 25 July 2000 and 29 January 2001 the
applicant demanded that, in view of the defendant's admission, the
District Court determine the matter promptly.
On
14 September 2000 the District Court held a hearing at which the
defendant expressly acknowledged the existence and amount of its
debt. However, it remained to be clarified whether the amount was
gross or net. The hearing was adjourned, the defendant being invited
to submit copies of the applicant's salary records. The
defendant submitted them on 2 October 2000.
On
3 April and 16 October 2001 the District Court held further hearings.
At the former hearing the applicant withdrew a part of the claim on
the ground that the defendant had paid a part of his outstanding
wages. Following the latter hearing, on the same day, the District
Court determined the action. It first of all discontinued the
proceedings in respect of the part of the claim that had been
withdrawn. It then granted the remaining part of the claim for
outstanding wages. The District Court finally ruled that the claim
for leave pay, severance pay and a food allowance would be determined
in a separate set of proceedings.
The
statutory thirty-day time-limit for finalising the written version of
the judgment of 16 October 2001 was extended by decision of the
president of the District Court and it was finally sent to the
parties on 13 December 2001. In the absence of an appeal, the
judgment became final and binding on 31 January 2002.
The
applicant subsequently commissioned a judicial enforcement officer
(súdny exekútor) to enforce the order for
payment of the outstanding wages. On 13 June 2002 the officer
notified the defendant officially that the enforcement proceedings
had commenced.
On
8 February 2002 the case file concerning the separate set of
proceedings opened pursuant to the judgment of 16 October 2001 was
assigned to a new judge and on 3 October 2002 it was registered under
a new file number 19C 1131/02.
Following
another request by the applicant that the case be determined swiftly,
the District Court scheduled hearings for 12 December 2002
and 18 March and 29 April 2003. They were adjourned owing to the
absence of the defendant's representative, who submitted an apology
on 4 March 2003.
On
13 January 2004 the District Court held another hearing at which the
defendant acknowledged the outstanding claims. Following the hearing,
on the same day, the District Court granted the remainder of the
action. No appeal was lodged and the judgment became final and
binding on 29 March 2004. The applicant subsequently
requested its judicial enforcement.
In
a letter of 2 August 2004 the enforcement officer informed the
applicant that the defendant company could not be located at its
registered address and that no movable or immovable assets belonging
to it had been traced. He proposed that the enforcement be
discontinued.
B. Constitutional proceedings
On
24 April 2001 the applicant lodged a petition (podnet) under
Article 130 § 3 of the Constitution with the Constitutional
Court (Ústavný súd). He contended that
his action of 1999 had not been determined “without unjustified
delay” as guaranteed by Article 48 § 2 of the
Constitution.
On
13 March 2002 the Constitutional Court discontinued the proceedings.
It was noted that the proceedings under file number 12C 1730/99
at which the petition was aimed had already been concluded by the
judgment of 16 October 2001. The remainder of the action of 1999 was
being determined in the other set of proceedings under file number
19C 1131/02. In these circumstances, the applicant's right to a
hearing without unjustified delay had to be considered as fulfilled.
Relying on its established practice, the Constitutional Court found
that the applicant therefore was no longer justified in having a
ruling on his petition.
On
2 October 2002 the applicant filed a fresh complaint (sťaZnosť)
under Article 127 of the Constitution with the Constitutional Court
arguing that his action of 1999, as a whole, had not been determined
without unjustified delay. He sought an order for an acceleration of
the proceedings and 50,000 Slovakian korunas
(SKK) by way of just satisfaction.
In
a decision of 22 January 2003 the Constitutional Court declared the
complaint inadmissible in so far as it concerned the proceedings
under file number 12C 1730/99, observing that those proceedings had
already ended in 2001. It further declared the complaint admissible
in so far as it concerned the proceedings under file number 19C
1131/02.
In
a judgment (nález) of 21 May 2003 the Constitutional
Court found a violation of the applicant's right to a hearing within
a reasonable time in the proceedings under file number 19C 1131/02.
It ordered the District Court to proceed with the matter speedily and
awarded the applicant SKK 15,000
in just satisfaction. The Constitutional Court formally reviewed only
the part of the proceedings which had commenced in 2002 further to
the judgment of October 2001. It “took notice” of the
fact that the action as such had been lodged in 1999. No delays could
be imputed to the applicant and the District Court had been
completely inactive between 8 January and 3 October 2002. The
amount of the just satisfaction was determined on an equitable
basis with reference to Article 41 of the Convention.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained that he had not had a fair hearing in his
constitutional petition of 2001 and that the length of the
proceedings in this petition and in his action of 1999 had been
incompatible with the “reasonable time” requirement laid
down in Article 6 § 1 of the Convention, the relevant part of
which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair... hearing within a
reasonable time by [a] ... tribunal...”
A. Admissibility
1. Constitutional petition of 2001
The
Government argued that Article 6 § 1
of the Convention was inapplicable to the applicant's constitutional
petition of 2001.
The
applicant maintained the complaint.
The
Court observes that the subject-matter of the applicant's
constitutional petition was solely the length of the proceedings
before the ordinary courts.
The
outcome of the constitutional proceedings was therefore not directly
decisive for the applicant's “civil rights and obligations”
(see Süßmann v. Germany, Reports of Judgments
and Decisions 1996-IV, p. 1171, § 41, and Mikolaj and
Mikolajová v. Slovakia, no. 68561/01, § 36,
29 November 2005).
It
follows that the Article 6 § 1
complaint in respect of the proceedings on the applicant's
constitutional petition is incompatible ratione materiae with
the provisions of the Convention within the meaning of Article 35 § 3
and must be rejected in accordance with Article 35 § 4.
2. Action of 1999
The
Government argued primarily that in view of the Constitutional
Court's judgment of 21 May 2003 the applicant had lost his status as
a “victim” within the meaning of Article 34 of the
Convention in respect of the length of these proceedings.
They
submitted, in the alternative, that the length of the part of the
proceedings leading to the judgment of 16 October 2001 was manifestly
ill-founded, the authorities not being responsible for any
substantial unjustified delay and the length of the proceedings
having been mainly due to the conduct of the parties. As for the
subsequent proceedings, the Government relied on the Constitutional
Court's judgment of 21 May 2003 and accepted that the complaint of
their length was not manifestly ill founded.
The
applicant disagreed and asserted that the amount of the just
satisfaction awarded by the Constitutional Court was
disproportionately low and that there had been delays in the
proceedings even after and despite the Constitutional Court's
judgment of 2003.
The
Court observes first of all that the applicant's employment-related
claims were lodged in 1999. As for their substance, they were closely
interrelated, concerned the same parties and were in fact examined by
the same court. Although in the subsequent course of the proceedings
some of the original claims were formally separated and dealt with in
different sets of proceedings and under different file numbers the
Court finds that for the purposes of assessing the length of the
proceedings under Article 6 § 1 of the
Convention they should be treated as a single matter.
Furthermore,
the Court observes that, in view of the Constitutional Court's
judgment of 21 May 2003, a 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.
An
applicant's status as a “victim” within the meaning of
Article 34 of the Convention depends on whether the domestic
authorities acknowledged, either expressly or in substance, the
alleged infringement of the Convention and, if necessary, provided
appropriate redress in relation thereto. Only when these conditions
are satisfied does the subsidiary nature of the protective mechanism
of the Convention preclude examination of an application (see,
among may other authorities, Cocchiarella v. Italy [GC], no.
64886/01, § 71, ECHR 2006-...).
In
the present case the Constitutional Court expressly found that the
District Court had violated the applicant's right to a hearing within
a reasonable time, ordered that the proceedings be accelerated
and awarded the applicant the equivalent of approximately 375 euros
in just satisfaction.
Whether
this redress was adequate and sufficient having regard to Article 41
of the Convention 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, cited above, §§
69-98).
The
amount of just satisfaction awarded by the Constitutional Court is
less than 20% of what the Court would generally award in a similar
situation in a Slovakian case. Irrespective of the real effect of the
Constitutional Court's injunction to speed up the proceedings, such a
low amount of compensation 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.
The
period to be taken into consideration began on 15 December 1999
and ended on 13 January 2004. It thus lasted slightly less than 4
years and 1 month for a single level of jurisdiction. In this context
it is to be noted that all the applicant's objections appear to
concern solely the proceedings in his action. Neither at the domestic
level nor before the Court has the applicant made any complaints in
respect of the subsequent enforcement of the judgment of 13 January
2004. The enforcement phase will therefore not be taken into account.
In any event, domestic remedies have not been exhausted in respect of
it.
The
Court notes that this complaint 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 reiterates that special diligence is
necessary in employment disputes (Ruotolo v. Italy, judgment
of 27 February 1992, Series A no. 230-D, p. 39, § 17).
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, including the assessment
of the length of the proceedings by the Constitutional Court, 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.
In
reaching this conclusion the Court has taken into account not only
the overall length of the proceedings but also the fact that the
defendant acknowledged the validity of the applicant's claims at an
early stage of the proceedings (see paragraphs 6 and 9 above) and
that, despite this acknowledgment, it took almost a year until a part
of the case was decided and more than another year until a hearing
was held on the remainder of the case (see paragraphs 10, 12 and 13
above).
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. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicant also complained that he had not had at his disposal
an effective remedy as regards the violations asserted above. He
relied on Article 13 of the Convention, which provides that:
“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.”
The
Government found the complaint manifestly ill-founded.
The
applicant disagreed and maintained the complaint.
The
Court reiterates that Article 13 of the Convention guarantees the
availability at the national level of a remedy to enforce the
substance of the Convention rights and freedoms. Its effect is to
require the provision of a domestic remedy capable of dealing with
the substance of an “arguable complaint” under the
Convention and of granting appropriate relief (see, amongst other
authorities, Aksoy v. Turkey, judgment of 25 September 1996,
Reports 1996-VI, p. 2286, § 95).
The
Court has found above that the complaint of the unfairness and
excessive length of the proceedings in respect of the constitutional
petition of 2001 was incompatible ratione materiae with the
provisions of the Convention. It follows that Article 13 is
inapplicable to that complaint.
The
Court reiterates further that the word “remedy” within
the meaning of Article 13 does not mean a remedy which is bound to
succeed, but simply an accessible remedy before an authority
competent to examine the merits of a complaint (see, mutatis
mutandis, Bensaid v. the United Kingdom, no. 44599/98, §
56, ECHR 2001-I).
Although
with only limited success, the applicant had at his disposal and used
a remedy in respect to the length of the proceedings in his 1999
action.
It
follows that the Article 13 complaint is in part incompatible ratione
materiae with the provisions of the Convention within the meaning
of Article 35 § 3 and in part manifestly ill-founded. It
therefore must be rejected in accordance with Article 35 §§
3 and 4 of the Convention.
III. 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 83,857
Slovakian korunas (SKK) in respect of pecuniary damage. This amount
represented the part of his claim that had become practically
unrecoverable owing to the excessive length of the proceedings. The
applicant also claimed SKK 130,000
in respect of non pecuniary damage.
The
Government contested these claims.
The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged. In particular, it cannot speculate
about the outcome of the proceedings had they been in conformity with
Article 6 § 1. It therefore rejects this claim.
On
the other hand, it 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
21 May 2003, it awards him 1,500 euros (EUR) under that
head.
B. Costs and expenses
The
applicant also claimed SKK 2,000
for costs and expenses.
The
Government contested the 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 accepts that the
applicant incurred expenses such as postage and out-of-pocket
expenses and considers that the sum claimed should be awarded in
full. It accordingly awards him 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 complaint under Article 6 §
1 of the Convention concerning the excessive length of the
proceedings in the 1999 action admissible and the remainder of the
application inadmissible;
Holds that there has been a violation of Article
6 § 1 of the Convention on account of the excessive length of
the proceedings in the 1999 action;
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 1,500 (one
thousand five hundred euros) in respect of non-pecuniary damage and
EUR 60 (sixty euros) in respect of costs and expenses, 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 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 23 October 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
