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ZAREMBOVA v. SLOVAKIA - 7908/07 [2010] ECHR 1822 (23 November 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1822.html
Cite as:
[2010] ECHR 1822
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FOURTH
SECTION
CASE OF ZAREMBOVÁ v. SLOVAKIA
(Application
no. 7908/07)
JUDGMENT
STRASBOURG
23 November 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 Zarembová v. Slovakia,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
David
Thór Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
Ledi Bianku,
Nebojša
Vučinić,
Vincent Anthony de Gaetano,
judges,
and Fatoş Aracı,
Deputy
Section Registrar,
Having
deliberated in private on 2 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 7908/07) against the
Slovak Republic lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a
Slovak national, Ms Dagmar Zarembová
(“the applicant”), on 31 January 2007.
The
Government of the Slovak Republic (“the Government”) were
represented by their Agent, Mrs M. Pirošíková.
On
4 February 2010 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 § 1).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1965 and lives in Bratislava.
On
17 August 1998 she lodged an action challenging her dismissal from
her job. The defendant introduced a counterclaim.
The
parties reached an out-of-court settlement and withdrew their claims
on 22 May 2006.
As
a result, the Bratislava III District Court discontinued the
proceedings on 25 May 2006. The decision was served on the applicant
on 1 July 2006 and, in the absence of an appeal, it became final
on 16 August 2006.
On
31 May 2006 the applicant complained to the Constitutional Court
about the length of the proceedings.
On
7 July 2006 the Constitutional Court declared the complaint
inadmissible as being manifestly ill-founded. It held that the
protection of one's right to a hearing without unjustified delay by
the Constitutional Court was intended to eliminate the state of legal
uncertainty of a party to proceedings. Legal uncertainty could be
eliminated either by a final judicial decision or by other means
stipulated by the law. The latter also included a procedural
decision of a court, based on the plaintiff's wish not to pursue the
proceedings as regards the entire claim or where, as in the present
case, both parties withdrew their claims. It had been the
Constitutional Court's practice to reject complaints filed when the
applicants' right to a hearing without unjustified delay was not
being violated, even if the relevant decisions had not yet become
final.
It
finally noted that the applicant had lodged her complaint after the
District Court had adopted the decision to discontinue the
proceedings following the withdrawal of the parties' claims. As a
result, the District Court was no longer dealing with the merits of
the case and the complaint of the length of the proceedings was thus
manifestly ill-founded.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
A. Admissibility
The
Government relied on the Constitutional Court's decision. They argued
that the applicant had not exhausted the available remedies, as she
had failed to seek redress before the Constitutional Court in
accordance with the Constitutional Court's practice. More
specifically, she had lodged her complaint after any legal
uncertainty she may have had had been eliminated, that is after the
District Court had discontinued the proceedings and had no longer
been dealing with the merits of the case. They noted that it had been
the Constitutional Court's practice to examine length of proceedings
complaints only when the proceedings were still pending at the moment
when the complaints were lodged with the Constitutional Court. They
further stated that such practice had also been accepted by the Court
(see Mazurek v. Slovakia (dec.), no. 16970/05, 3 March
2009).
The
applicant disagreed. She argued that at the time of the lodging of
her constitutional complaint, the proceedings had not been concluded
and her state of legal uncertainty had persisted. The proceedings
ended on 16 August 2006, when the decision to discontinue them
became final. She stated that the District Court had been responsible
for several procedural steps even after the adoption of the decision,
such as preparation of the decision in writing and its delivery to
the parties.
The
Court first reiterates that, in respect of the alleged violation of
the applicant's right to a hearing within a reasonable time, it is
irrelevant that the applicant withdrew her claim and that, as a
result, the ordinary courts did not ultimately determine the merits
of the case (see ČíZ v. Slovakia, no.
66142/01, § 61, 14 October 2003).
As regards applications against Slovakia concerning
the length of proceedings the Court has held that a complaint under
Article 127 of the Constitution is, in principle, 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 also held that
applicants should formulate their complaints 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).
Domestic law stipulates a two-month time-limit for
submitting complaints under Article 127 of the Constitution. However,
the practice of the Constitutional Court has been not to apply this
time-limit to length of proceedings complaints and to examine only
those complaints which were lodged before the proceedings complained
of have ended. This practice has been accepted by the Court (see
Mazurek v. Slovakia (dec.), no. 16970/05,
3 March 2009).
In
the case of Mazurek
(cited above), the applicant lodged his constitutional complaint
after the proceedings had been terminated by a final decision.
This is not the case in the present application. The applicant lodged
her complaint with the Constitutional Court after the District Court
had adopted the decision to discontinue the proceedings, but before
that decision was served on her and had become final.
Even
though the Constitutional Court, when rejecting the applicant's
complaint, relied on the principle of legal certainty, the Court is
of the opinion that the state of legal uncertainty in the context of
judicial or administrative proceedings can be eliminated only when
such proceedings end. In line with that it has been the Court's
practice to examine the duration of proceedings as a whole, that is
up until they have ended by a final decision (see, among many
others, Kocianová
(no. 2) v. Slovakia,
no. 45167/06, § 12, 18 May 2010).
As
to the circumstances of the present case in particular, and despite
the Government's arguments, the subsequent developments in the
proceedings in issue could not be predicted. It was possible to
appeal against the decision to discontinue the proceedings, and the
proceedings might well have continued even in the later period. Even
though the District Court was not dealing with the merits of the case
after the adoption of the decision of 25 May 2006, it still had
to carry out several procedural steps. Delays could have
theoretically occurred also in that period of the proceedings, for
example, as regards the delivery of the decision to the parties.
By refusing to examine the length of proceedings, which had not yet
ended by a final decision, the Constitutional Court risked excluding
from its examination a future, possibly substantial period of
proceedings on a matter which had not still been determined by a
final decision.
In
these circumstances, the manner in which the applicant's complaint
was dealt with by the Constitutional Court failed to meet the purpose
of protection of her right under Article 6 § 1 of the Convention
to a hearing within a reasonable time, as interpreted and
applied by the Court. Such approach is susceptible of depriving the
remedy under Article 127 of the Constitution of its requisite
effectiveness (see also Akdivar and
Others v. Turkey, 16 September 1996,
§ 66, Reports
1996-IV).
The
Government's objection relating to the applicant's failure to exhaust
domestic remedies must therefore be dismissed.
The
proceedings complained of lasted eight years at one level of
jurisdiction.
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
applicant argued that the proceedings had lasted an unreasonably long
time.
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 materials submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 33,000 euros (EUR) in respect of non pecuniary
damage.
The
Government contested the claim.
The Court considers that the applicant must have sustained
non pecuniary damage. Ruling on an equitable basis, it awards
award her EUR 9,000 under that head.
B. Costs and expenses
The
applicant also claimed EUR 173 for translation costs.
The Government left the matter to the Court's discretion.
The
Court considers it reasonable to award the applicant the full sum
claimed under this head.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the application admissible;
Holds that there has been a violation of Article
6 § 1 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts:
(i)
EUR 9,000 (nine thousand euros), plus any tax that may be chargeable,
in respect of non-pecuniary damage;
(ii)
EUR 173 (one hundred and seventy-three 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 23 November 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş
Aracı Nicolas
Bratza
Deputy Registrar President
