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KOMANICKY v. SLOVAKIA (no. 5) - 37046/03 [2009] ECHR 1538 (13 October 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1538.html
Cite as:
[2009] ECHR 1538
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FOURTH
SECTION
CASE OF KOMANICKÝ v. SLOVAKIA (no. 5)
(Application
no. 37046/03)
JUDGMENT
STRASBOURG
13
October 2009
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 Komanický
v. Slovakia (no. 5),
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Giovanni
Bonello,
David
Thór Björgvinsson,
Ján
Šikuta,
Päivi
Hirvelä,
Ledi
Bianku,
Nebojša
Vučinić,
judges,
and Lawrence
Early, Section
Registrar,
Having
deliberated in private on 22 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 37046/03) against the
Slovak Republic lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a Slovak national, Mr Ioan
Kornelij Komanický (“the applicant”), on 10
November 2003.
The
Slovak Government (“the Government”) were represented by
Mrs A. Poláčková and Mrs M.
Pirošíková, their successive Agents.
On
19 May 2006 the
President of the Fourth Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1943 and lives in Bardejov.
A. Proceedings before
the Bardejov District Court concerning the applicant's appeal on
points of law
According
to the applicant, on 19 June 2000 judges of the Prešov
Regional Court decided on his appeal against the first-instance
judgment notwithstanding that he had challenged them and no decision
had been given on his request for their exclusion.
On
2 October 2000 the applicant lodged an appeal on points of law
against the above judgment of 19 June 2000 in proceedings concerning
his claim for compensation (equivalent of approximately 350 euros
(EUR) plus default interest). In accordance with the relevant law,
the applicant lodged the appeal on points of law with the Bardejov
District Court, which was to complete the file prior to its
submission to the Supreme Court for a decision on the appeal on
points of law.
On
1 April 2003 the District Court asked the applicant to eliminate
formal shortcomings in his appeal on points of law. The applicant
requested that a lawyer be appointed to represent him in the
cassation proceedings.
On
28 May 2003 the District Court exempted the applicant from the
obligation to pay the court fee and appointed an advocate to
represent him.
On
10 September 2003 the District Court revoked the appointment of the
above advocate as he had informed the court that he was the legal
representative of the defendant.
The
District Court appointed another advocate to represent the applicant.
The applicant and the advocate appealed as, in the past, the
applicant had lodged a complaint against that advocate with the
Slovak Bar Association and therefore the appointed advocate could not
appropriately represent him. On 3 August 2004 the Prešov
Regional Court quashed the decision to appoint the advocate.
On
12 October 2004 the District Court appointed a different advocate to
represent the applicant. The applicant appealed, arguing that the
decision had been incorrect. On 11 March 2005 the District Court
rectified a clerical error in the decision. On 27 May 2005 the
Regional Court in Prešov upheld the
above decisions.
On
29 June 2005 the case file was transmitted to the Supreme Court. On
20 July 2005 the file was returned to the District Court as having
been submitted prematurely.
On
10 October 2005 the District Court invited the advocate appointed to
represent the applicant to eliminate formal shortcomings in the
applicant's appeal on points of law.
On
17 October 2005 the advocate asked the applicant for cooperation in
completing his appeal on points of law. She asked the applicant to
come to her office on 21 October 2005. On 2 November 2005 the
advocate informed the District Court that the applicant had refused
to cooperate with her.
On
19 January 2006 the Bardejov District Court sent the file to the
Supreme Court with the explanation that it had not been possible to
eliminate the shortcomings in the applicant's appeal on points of law
despite the fact that an advocate had been appointed to represent the
applicant.
In
a letter of 30 January 2006 the advocate stated that the applicant
had not responded to her request for cooperation and asked him to
submit to her all documents concerning the case.
On
24 May 2006 the Supreme Court rejected the applicant's appeal on
points of law as formal shortcomings had not been eliminated.
B. Constitutional proceedings
On
12 November 2003 the Constitutional Court found that the District
Court had violated the applicant's right to a hearing without
unjustified delay when dealing with his appeal on points of law. It
noted that the President of the District Court had admitted that his
court had remained inactive in the case from 2 October 2000 until 1
April 2003.
The
Constitutional Court ordered the District Court to proceed with the
case without any further delay and to pay the applicant 10,000 Slovak
korunas (SKK, the equivalent of EUR 243 at that time) as just
satisfaction. It also ordered the District Court to reimburse the
costs of legal representation to the applicant.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained that the length of the proceedings before the
Bardejov District Court concerning his appeal on points of law had
been incompatible with the “reasonable time”
requirement. The applicant further complained that his right to
a hearing by “an independent and impartial” tribunal had
been violated, in that on 19 June 2000 the Prešov
Regional Court had decided on his appeal against the
first-instance judgment notwithstanding that he had challenged its
judges and that no decision had been given on his request for their
exclusion. The applicant relied on 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 an independent and impartial tribunal...”
A. Admissibility
(a) Alleged lack of independence and
impartiality of the tribunal
The
Court notes that the applicant failed to submit any documents
in support of an alleged violation of his right to an independent and
impartial tribunal.
In
the light of all the material in its possession, and in so far as the
matters complained of are within its competence, the Court finds that
they do not disclose any appearance of a violation of the applicant's
right to an independent and impartial tribunal.
It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
(b) Length of the
proceedings before
the Bardejov District Court concerning the applicant's appeal on
points of law
The
Government objected that, in respect of the proceedings examined by
the Constitutional Court, the applicant could no longer claim to be a
victim of a violation of his right to a hearing within a reasonable
time. They argued that the Constitutional Court had expressly
acknowledged such a violation and the amount of just satisfaction
awarded and paid without undue delay was
not manifestly inadequate in the circumstances of the case. They
further argued that the Constitutional Court's finding had had a
preventive effect, as no further delays had occurred in the
subsequent period.
In
any event, the applicant had not exhausted domestic remedies, as it
had been open to him to lodge a fresh complaint with the
Constitutional Court in respect of the proceedings following the
Constitutional Court's finding.
The
applicant disagreed and argued that the amount of just satisfaction
granted by the Constitutional Court had been disproportionately low
in the circumstances of the case and that the Constitutional Court's
finding had not had a preventive effect. He argued that he had not
been obliged to seek redress by way of a fresh constitutional
complaint.
27. As to the argument whether the applicant can still be
considered a victim, the Court notes that at the time of the
Constitutional Court's finding the proceedings on the applicant's
appeal on points of law, of which the applicant exclusively
complained, had been pending for three years and more than one month
before the District Court. The Constitutional Court awarded the
applicant the equivalent of EUR 243 as just satisfaction in respect
of the proceedings examined by it and ordered the District Court to
avoid any further delay in the proceedings.
The
amount awarded by the Constitutional Court cannot be considered as
providing adequate and sufficient redress to the applicant in view of
the Court's established case-law (see Scordino v. Italy (no. 1)
[GC], no. 36813/97, §§ 178-213, ECHR 2006-V, and
Cocchiarella v. Italy [GC], no. 64886/01, §§
65-107, ECHR 2006-V).
In
view of the above, in respect of the proceedings up to the time of
the Constitutional Court's finding, the Court concludes that the
applicant did not lose his status as a victim within the meaning of
Article 34 of the Convention.
Since
the effects produced by the decision of the Constitutional Court did
not satisfy the criteria applied by the Court, the applicant was not
required, for the purposes of Article 35 § 1 of the Convention,
to use the remedy under Article 127 of the Constitution again in
respect of the proceedings subsequent to the Constitutional Court's
finding (see the recapitulation of the relevant principles in Becová
v. Slovakia (dec.), no. 23788/06, 18 September
2007).
The
proceedings on the applicant's appeal on points of law prior to its
submission to the Supreme Court started on 2 October 2000 and lasted
until 19 January 2006 when the District Court transmitted the file to
the Supreme Court. They thus lasted five years and more than three
months before the District Court, and during that period the
appellate court decided two issues of a procedural nature.
The
Court notes that this part of 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
Government agreed with the Constitutional Court's finding that undue
delays had occurred in the proceedings examined by it. As to the
subsequent period the Government stated that the applicant's
request for the appointment of an advocate, whose appointment had to
be revoked twice, had prolonged the proceedings. They argued that the
applicant had failed to eliminate formal shortcomings of his appeal
on points of law and to co operate with the advocate appointed
to represent him. Furthermore, the subject matter of the dispute did
not require “exceptional diligence”. The Government
considered therefore the complaint about the length of the subsequent
proceedings manifestly ill-founded.
The
applicant disagreed with the statement that he had not eliminated
formal shortcomings of his appeal on points of law. He further argued
that he had not been obliged to cooperate with the advocate appointed
to represent him. The applicant alleged that the Bardejov District
Court had failed to appoint an appropriate advocate to represent him
and it had thus contributed to the length of the proceedings. The
applicant further argued that the subject matter of the dispute was
of great importance for him.
The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Frydlender, cited above).
Having
examined all the material submitted to it and having regard to its
case-law on the subject, 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 particular,
at the time of the Constitutional Court's finding the proceedings
concerning the applicant's appeal on points of law had been pending
for three years and more than one month before the District Court.
Following
the Constitutional Court's finding the proceedings continued for two
years and more than two months. The applicant contributed to the
length of the subsequent period as he had refused to cooperate with
the advocate appointed to him in order to eliminate formal
shortcomings of his appeal on points of law. During that period two
substantial delays of approximately eight months (between 12 October
2004 and 11 March 2005 and between 29 June and 10 October 2005)
occurred due to the ineffective performance of the District Court.
In
the light of the above considerations, the Court concludes that the
overall length of the period under consideration was incompatible
with the applicant's right to a hearing within a reasonable time.
There
has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicant complained that the Constitutional Court had not provided
him with appropriate redress as regards the complaint about the
length of the proceedings, and that the ordinary courts had not
appointed a suitable lawyer to represent him in the cassation
proceedings. He relied on Article 13 of the Convention, which
provides:
“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 argued that the applicant had an effective remedy at his
disposal in respect of the above complaint.
The
applicant disagreed.
The
Court reiterates 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, for example,
Šidlová v. Slovakia, no. 50224/99, § 77,
26 September 2006). In the light of this principle the Court finds
that the fact that the redress obtained by the applicant from the
Constitutional Court was not sufficient for Convention purposes does
not render the remedy under Article 127 of the Constitution in the
circumstances of the present case incompatible with Article 13 of the
Convention (see also Solárová and Others v.
Slovakia, no. 77690/01, § 56, 5 December 2006,
with further references).
As
to the applicant's complaint in respect of his request for the
appointment of a lawyer, the Court notes that following the
applicant's and the appointed lawyers' objections, the two appointed
lawyers had been revoked. On 12 October 2004 another lawyer was
appointed to represent the applicant, and this time he did not
challenge the lawyer. Moreover, the applicant stated that he was not
obliged to cooperate with the latter. In view of the above, this
point of the complaint is unsubstantiated.
It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE
CONVENTION
Relying
on Article 14 of the Convention the applicant further
complained that the ordinary courts had discriminated against him
when dealing with his request for a lawyer to be appointed to
represent him.
However, in the light of all the
material in its possession, and in so far as the matters complained
of are within its competence, the Court finds that they do not
disclose any appearance of a violation of the right guaranteed under
Article 14 of the Convention.
It follows that this part of the application is
manifestly ill-founded and must be rejected in accordance with
Article 35 §§ 3 and 4 of the Convention.
IV. 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 EUR 378 in respect of pecuniary damage and EUR
4,210 in respect of non-pecuniary damage.
The Government contested the
pecuniary damage claimed by the applicant. They considered the
claim for non-pecuniary damage exaggerated.
The Court does not discern any causal link between the
violation found and the pecuniary damage alleged; it therefore
rejects this claim. On the other hand, and bearing in mind the
sum awarded by the Constitutional Court, it awards the applicant EUR
1,000 in respect of non pecuniary damage.
B. Costs and expenses
The
applicant claimed a lump sum for the costs and expenses incurred
before the Court.
The
Government argued that the applicant had not supported his claim by
any evidence and requested the Court to only grant the applicant
compensation for reasonably incurred costs and expenses.
According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
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 sum of EUR 100 for
the applicant's out-of-pocket expenses incurred in 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 complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
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, the following
amounts:
(i) EUR 1,000 (one thousand euros),
plus any tax that may be chargeable, in respect of non-pecuniary
damage;
(ii) EUR 100 (one hundred euros), plus any tax
that may be chargeable to the applicant, in respect of costs and
expenses;
(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 13 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
