British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[
Home]
[
Databases]
[
World Law]
[
Multidatabase Search]
[
Help]
[
Feedback]
European Court of Human Rights
You are here:
BAILII >>
Databases >>
European Court of Human Rights >>
A.R., SPOL. S R.O. v. SLOVAKIA - 13960/06 [2010] ECHR 144 (9 February 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/144.html
Cite as:
[2010] ECHR 144
[
New search]
[
Contents list]
[
Printable RTF version]
[
Help]
FOURTH
SECTION
CASE OF A.R., SPOL. S R.O. v. SLOVAKIA
(Application
no. 13960/06)
JUDGMENT
STRASBOURG
9
February 2010
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 A.R., spol. s r.o. v. Slovakia,
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 19 January 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 13960/06) 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 company A.R., spol. s r.o. (“the
applicant”), on 28 March 2006.
The
applicant was represented by Mr T. Šafárik,
a lawyer practising in Košice. The Slovak
Government (“the Government”) were represented by their
Agent, Mrs M. Pirošíková.
On
25 March 2009 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 Government filed their observations on the
admissibility and merits of the application (Rule 54A of the Rules of
Court). The applicant did not produce any observations in reply. On
23 October 2009, however, its representative reiterated its
intention to pursue the proceedings.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
The
applicant is a company with its registered office in Viničné.
The
facts of the case, as submitted by the parties, may be summarised as
follows.
On
23 March 1998 the applicant lodged an action with the RoZňava
District Court concerning the payment of a sum of money.
On
30 March 1998 the case was transferred to the Košice Regional
Court.
On
26 November 2000 the Regional Court granted the action.
On
26 January 2001 the defendant appealed.
On
28 February 2002 the Supreme Court quashed the decision and returned
the case to the Regional Court.
On
15 May 2003 the Regional Court dismissed the action.
On
23 June 2003 the applicant appealed.
On
26 October 2004 the Supreme Court quashed the decision and returned
the case to the Regional Court.
On
14 March 2005 the Regional Court granted the action.
On
17 May 2005 the defendant appealed.
On
19 May 2005 the applicant complained to the Constitutional Court
about the overall length of the proceedings in its action.
On
21 September 2005 the Constitutional Court dismissed a part of the
applicant's complaint concerning the delays in the proceedings before
the Supreme Court as being belated. It stated that in relation to the
appeal proceedings the applicant had failed to lodge the complaint
within the statutory 2 months' period as the Supreme Court's
decisions had become final on 24 April 2002 and 27 December 2004.
On
10 October 2005 the case was transferred to the Supreme Court.
On
9 November 2005 the Supreme Court returned the case to the Regional
Court without a decision on the merits.
On
11 January 2006 the Constitutional Court found that the Regional
Court had violated the applicant's right under Article 48 § 2
of the Constitution to a hearing without unjustified
delay.
It
ordered the Regional Court to proceed without delay and awarded
30,000 Slovakian korunas (SKK), (the equivalent of 800 euros
(EUR) at that time) to the applicant as just satisfaction in respect
of non-pecuniary damage. It also ordered the Regional Court to
reimburse the applicant's legal costs.
On
6 September 2007 the Supreme Court partly upheld the Regional Court's
decision of 14 March 2005 and on 28 September 2007 it returned the
case for a decision on the matter of costs and expenses to the
Regional Court.
On
20 February 2008 the Regional Court requested the applicant's legal
representative to submit all necessary documents.
On
16 April 2008 the Regional Court imposed a fine on the applicant's
legal representative.
On
12 May 2008 the applicant's legal representative specified the
applicant's claim for costs and expenses.
On
12 June 2008 the Regional Court quashed the decision imposing a
fine on the applicant's legal representative.
On
5 November 2008 the Regional Court issued a decision on costs and
expenses. The decision became final on 29 November 2008.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The applicant complained about the length of the civil
proceedings. It further complained that there had been no public
hearing before the Supreme Court which on 28 February 2002 and 26
October 2004 had quashed the decisions of the first-instance court
and returned the case to the latter court. It also complained that
the Constitutional Court, by partly dismissing its complaint, had
breached its right of access to a court. It 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 ...public hearing within a
reasonable time by [a] ... tribunal...”
Admissibility
1. Length of the proceedings
The
Government submitted that the Constitutional Court by its judgment of
11 January 2006 had provided the applicant with preventive and
compensatory redress. The Government considered that redress to be
adequate and sufficient. The applicant had therefore lost its victim
status.
As
to the part of the complaint concerning the length of the proceedings
before the Supreme Court, the applicant had failed to observe the
requirements of Article 35 § 1 of the Convention in that it had
failed to challenge the length of the proceedings by means of a
complaint under Article 127 of the Constitution, lodged in
accordance with the applicable procedural rules and the practice of
the Constitutional Court. They contended in particular that the
applicant had failed to raise its objection before the Constitutional
Court as regards the length of the proceedings before the Supreme
Court while the latter proceedings were still pending.
As
far as the length of the proceedings after the Constitutional Court's
judgment of 11 January 2006 was concerned, the applicant had
failed to avail itself of a fresh constitutional complaint about
possible delays in the subsequent course of the proceedings.
The
applicant did not submit any observations in reply.
As
regards the Government's argument that the applicant had not
exhausted domestic remedies in that it had not lodged a
constitutional complaint while the proceedings were pending before
the Supreme Court, the Court reiterates that under Article 35 §
1 of the Convention applicants are required to use remedies which are
available and sufficient to afford redress in respect of the breaches
alleged. That rule is based on the assumption, reflected in Article
13 of the Convention - with which it has close affinity -, that there
is an effective remedy available in respect of the alleged breach in
the domestic system (see Akdivar and Others v. Turkey,
16 September 1996, §§ 65-66, Reports of
Judgments and Decisions 1996 IV).
As
regards applications against Slovakia concerning the length of
proceedings the Court has held that a complaint under Article 127
of the Constitution is an effective remedy which applicants are
required to use for the purpose of Article 35 (see Andrášik
and Others v. Slovakia (dec.), nos. 57984/00, 60237/00,
60242/00, 60679/00, 60680/00, 68563/01, 60226/00, 22 October 2002).
It has further held that applicants should formulate their
constitutional complaint in a manner permitting the Constitutional
Court to examine the overall duration of the proceedings (see Obluk
v. Slovakia, no. 69484/01, § 62, 20 June
2006, with further reference) and, in accordance with the
Constitutional Court's practice, lodge it before the proceedings
complained of have ended (see Mazurek v. Slovakia (dec.),
no. 16970/05, 3 March 2009). In a number of cases the
Constitutional Court has addressed, in line with the Court's approach
when examining similar complaints, the overall duration of the
proceedings complained of in a single complaint (see Šedý
v. Slovakia no. 72237/01, §§ 66-67,
19 December 2006, SOFTEL, spol.s r.o. v. Slovakia
(no.1), no. 32427/06, § 8, 16 December 2008,
Bako v. Slovakia (dec.), no. 60227/00, 15 March
2005).
In
the present case, the applicant complained before the Constitutional
Court of the overall duration of the proceedings. Unlike in the case
of Mazurek, in the applicant's case the proceedings were still
pending as the Supreme Court had returned the case to the
first-instance court. However, the Constitutional Court excluded from
its review the proceedings before the Supreme Court on the ground
that the court was no longer dealing with the case and since the
statutory two-month time limit had expired.
The
Court has already held that it has been its practice to examine the
overall length of the proceedings complained of (see SOFTEL, spol.
s r.o. v. Slovakia (no.2), no. 32836/06, § 21,
16 December 2006, with further reference). The Court
takes the view that the remedy under Article 35 of the
Convention is susceptible of providing appropriate and sufficient
redress only where it allows for an examination of the proceedings in
their entirety (see Bako cited
above). As regards applications against Slovakia, such is not likely
to be the case where, as the Constitutional Court's decision in the
present case suggests, separate complaints had to be lodged at
different points in time in respect of each level of jurisdiction and
while the proceedings were pending before each individual court
involved. Such an approach would exclude a review of the duration of
the proceedings in their entirety and is susceptible of leading to a
result inconsistent with the Court's practice.
In
view of the above, the Court does not accept the Government's
objection that the applicant should have separately complained before
the Constitutional Court of the individual parts of the proceedings
in his case.
The
Court further observes that the applicant's status as a victim
depends on whether the redress afforded to it 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, Scordino
v. Italy (no. 1) [GC], no. 36813/97, §§ 178-213,
ECHR 2006-V and Cocchiarella v. Italy [GC],
no. 64886/01, §§ 69-98, ECHR 2006-V).
The
Court notes that at the time of the Constitutional Court's decision
the proceedings had lasted 7 years, 9 months and 15 days at two
levels of jurisdiction.
The
Constitutional Court awarded the applicant the equivalent of EUR 800
in respect of non-pecuniary damage. This amount is disproportionately
low, having regard to what the Court generally awards in similar
cases.
The
redress obtained by the applicant at the domestic level was thus
insufficient (see Scordino (no. 1), cited above,
§§ 214-215). The applicant can accordingly still claim
to be a “victim”.
As to the Government's objection that the applicant
should have had recourse to a fresh constitutional complaint about
possible delays in the subsequent course of the proceedings in issue,
the Court finds that the effects produced by the decision of the
Constitutional Court did not satisfy the criteria applied by the
Court. The applicant was therefore not required, for the purposes of
Article 35 § 1 of the Convention, to resort again to the remedy
under Article 127 of the Constitution in respect of the proceedings
subsequent to the Constitutional Court's judgment (see the
recapitulation of the relevant principles in Becová
v. Slovakia (dec.), no. 23788/06, 18 September
2007).
It
follows that this complaint cannot be rejected for non exhaustion
of domestic remedies within the meaning of Article 35 § 1
of the Convention and it 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.
2. Right to a public hearing and right of access to a court
The
applicant complained under Article 6 § 1 of the Convention that
there had been no public hearing before the Supreme Court which on
28 February 2002 and 26 October 2004 had quashed the
first instance decisions and returned the case to the Regional
Court. It also complained that the Constitutional Court, by partly
dismissing its complaint, had breached its right of access to a
court.
In
the light of all the materials 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 rights
and freedoms set out in the Convention or its Protocols.
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. Merits
The
applicant did not submit any additional observations on the merits of
the case.
The
Government, with reference to the Constitutional Court's judgment,
admitted that the complaint was not unsubstantiated as far as delays
in the proceedings before the Regional Court were concerned. However,
no further delays in the proceedings had occurred in the period after
the Constitutional Court's decision.
The
Court reiterates that the reasonableness of the length of the
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, ibid.).
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. At the time of the
Constitutional Court's judgment the proceedings had been pending for
7 years, 9 months and 15 days at two levels of jurisdiction which the
Court finds unreasonably long. Since the Constitutional Court's
judgment the proceedings have continued for more than 2 years and 10
months at two levels of jurisdiction. The Court finds the length of
the latter part of the proceedings excessive taking into account that
it took the Regional Court almost 5 months to request the applicant's
legal representative to submit the documents necessary for its
decision and another 5 months to issue a decision on costs and
expenses.
The
Court concludes that the overall length of the period under
consideration has been 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
Although
the applicant did not invoke Article 13 of the Convention, the Court
decided to examine this complaint under that Article of its own
initiative. Article 13 of the Convention 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.”
A. Admissibility
The
Government argued that despite the fact that the Constitutional Court
had not examined the overall length of the proceedings in issue, the
applicant's constitutional complaint was capable of leading to an
examination of the overall length of the proceedings, had the
applicant lodged it in accordance with the formal requirements and
time limits set by domestic law.
The
applicant did not submit any observations in reply.
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.
Merits
The
Court has found above (see paragraphs 38-39) that the remedy under
Article 127 of the Constitution is likely to provide appropriate and
sufficient redress to applicants where it allows for examination of
the entire duration of the proceedings complained of. Such is not the
case where, as the Constitutional Court's decision in the present
case suggests, separate complaints are to be lodged in respect of
each level of jurisdiction and while the proceedings are pending
before each individual court involved.
Since
the applicant in the present case complained to the Constitutional
Court about the overall duration of the proceedings and since, unlike
in other decisions, the Constitutional Court excluded from its review
a certain stage of those proceedings, the Court considers that its
right to an effective remedy has not been respected.
There
has therefore been a violation of Article 13 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.”
In
the application form submitted on 28 March 2003 the applicant
claimed, provisionally, EUR 500 as just satisfaction.
On
15 July 2009, after the application had been communicated to the
respondent Government and the parties informed that the admissibility
and merits of the case would be examined at the same time, the Court
invited the applicant to submit its claims for just satisfaction
before 26 August 2009. The relevant part of the Registry's
letter reads as follows:
“... With regard to the just satisfaction claims,
I would draw your attention to Rule 60 and would remind you that
failure to submit within the time allowed quantified claims, together
with the required supporting documents, entails the consequence that
the Chamber will either make no award of just satisfaction or else
reject the claim in part. This applies even if the applicant has
indicated his wishes concerning just satisfaction at an earlier stage
of the proceedings...”
The
applicant did not submit any such claims within the time limit
fixed by the Court.
In these circumstances, the Court makes no award under
Article 41 of the Convention (see, for example, Bzdúšek
v. Slovakia, no. 48817/99, § 32,
21 June 2005, with further references).
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint concerning the excessive
length of the proceedings, both taken alone and in conjunction with
Article 13 of the Convention, admissible and the remainder of
the application inadmissible;
2. Holds that there has been a violation of Article
6 § 1 of the Convention;
3. Holds that there has been a violation of Article
13 of the Convention.
Done in English, and notified in writing on 9 February 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
