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BUBLAKOVA v. SLOVAKIA - 17763/07 [2011] ECHR 313 (15 February 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/313.html
Cite as:
[2011] ECHR 313
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FOURTH
SECTION
CASE OF BUBLÁKOVÁ v. SLOVAKIA
(Application
no. 17763/07)
JUDGMENT
STRASBOURG
15 February 2011
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 Bubláková 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 A. de Gaetano, judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 25 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 17763/07) 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 Beáta Bubláková (“the
applicant”), on 19 April 2007.
The
applicant was represented by Ms I. Rajtáková, a lawyer
practising in Košice. 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 1973 and lives in Košice.
On
30 January 2002 the applicant initiated divorce proceedings and asked
the Košice II District Court to determine her and her
husband's rights and duties in respect of their minor daughters.
On
7 April 2006 the District Court adopted a judgment in the case.
On
19 April 2006 the applicant lodged a length of proceedings complaint
with the Constitutional Court.
The
District Court's judgment was served on the applicant on 12 May 2006
and, in the absence of an appeal, it became final on 4 July 2006.
On
13 September 2006 the Constitutional Court declared the complaint
inadmissible as being manifestly ill-founded. It held that the
District Court, by adopting the judgment and delivering it to the
parties, had taken all required steps in order to eliminate the state
of the applicant's legal uncertainty. This role of the District Court
had ended by adopting the decision on the merits, that is before the
complaint was lodged with the Constitutional Court. This decision
became final on 4 July 2006 and the District Court could not deal
with the merits of the case after the initiation of the
constitutional proceedings. It was the Constitutional Court's
practice to protect one's right to a hearing without unjustified
delay only if the length of proceedings complaint was lodged at a
time when the alleged violation still persisted. The decision was
served on the applicant's lawyer on 19 October 2006.
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 the state of her
legal uncertainty had been eliminated, that is after the District
Court had no longer been dealing with the merits of the case. They
noted that it had been the Constitutional Court's practice to examine
the 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.
They
admitted that, as the proceedings had lasted four years and five
months at one level of jurisdiction and concerned matters which
required special diligence, the complaint about the length of the
proceedings was not manifestly ill-founded.
The
applicant argued that the proceedings had lasted an unreasonably long
time. She disagreed with the Constitutional Court's decision and
stated that she had no other domestic remedy to obtain redress.
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).
The Court notes that 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 had 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 ended 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 a
judgment, but before that judgment was served on her and became
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
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 at the moment when the
applicant lodged her constitutional complaint. It was possible to
appeal against the judgment, 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
judgment, 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 judgment to
the parties. The Court considers relevant that, at the moment
when the applicant lodged her constitutional complaint, the merits of
the case had not yet been determined by a final decision. The fact
that the judgment had been served on the parties and had become final
by the time the Constitutional Court decided on the applicant's
complaint cannot change that position.
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 four years and five months at one
level of jurisdiction.
The
Court considers, in the light of the parties' submissions, that the
complaint raises serious issues of fact and law under the Convention,
the determination of which requires an examination of the merits. The
Court concludes therefore that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. No other ground for declaring it inadmissible has been
established. 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). In cases relating to civil status, what is at
stake for the applicant is also a relevant consideration, and special
diligence is required in view of the possible consequences which the
excessive length of proceedings may have, notably on enjoyment of the
right to respect for family life (Laino v. Italy [GC],
no. 33158/96, § 18, ECHR 1999-I).
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. ALLEGED VIOLATION OF
ARTICLE 13 OF THE CONVENTION
The
applicant complained that she had not had an effective remedy at her
disposal for her complaint about the length of the proceedings. She
relied on Article 13, which 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
The
Government argued that the applicant had an effective remedy at their
disposal, namely a complaint under Article 127 of the Constitution,
but she had not lodged it in accordance with the formal requirements
and the Constitutional Court's practice.
The
applicant disagreed and argued that pursuant to section 53 (3) of the
Constitutional Court Act a complaint under Article 127 can be lodged
within a period of two months from the date on which the decision in
question has become final and binding or on which a measure has been
notified or other interference has been given. As she complied with
that time limit, the Constitutional Court's rejection of her
complaint had no legal basis.
The
Court notes that the complaint concerning absence of an effective
remedy for the alleged breach of the applicant's right to a hearing
within a reasonable time 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 reiterates 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 length
proceedings complained of (see Kudła v. Poland [GC], no.
30210/96, §§ 158 and 159, ECHR 2000 XI, and Andrášik
and Others v. Slovakia, cited above).
The
applicant lodged a complaint with the Constitutional Court. Even
though she did so at a time when the proceedings had not yet been
concluded by a final decision, the Constitutional Court refused to
examine it. As established in § 18 above,
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 in a similar manner as interpreted and
applied by the Court. The Court, therefore, considers that the
applicant's right to an effective remedy has not been respected
(see mutatis mutandis,
A. R., spol. s r. o. v. Slovakia,
no. 13960/06, §§ 59-60, 9 February 2010).
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.”
A. Damage
In
a letter of 11 June 2010 the Registry of the Court invited the
applicant's lawyer to submit by 23 July 2010 any claims for just
satisfaction, together with supporting documents. On Monday,
9 August 2010 the lawyer submitted the applicant's claims
for just satisfaction. She apologised for the failure to observe the
time-limit on the ground that she had been on a sick leave from 21
July until Friday 6 August 2010 inclusive. She submitted a
relevant medical certificate.
The
applicant claimed 6,700 euros (EUR) in respect of non pecuniary
damage.
The
Government argued that the applicant had failed to introduce it
within the time-limit set and contested the claim.
The
Court notes that the lawyer failed to submit the claims within the
given time-limit. However, it observes that the lawyer was on sick
leave, which had started before the expiry of the time-limit. It also
observes that the lawyer contacted the Court on the first working day
after the end of her sick leave. In these circumstances it will take
the just satisfaction claims into consideration.
It
finds that the applicant must have sustained non-pecuniary damage.
Ruling on an equitable basis, it awards award her EUR 4,300 under
that head.
B. Costs and expenses
In
her submission of 9 August 2010 the applicant also claimed EUR 553
for the legal costs incurred before the Court. She included two
invoices totalling EUR 570 together with her submission of
22 November 2010.
The
Government contested the claim and argued that the applicant had
failed to introduce it within the time-limit set and had not
supported it with relevant documents.
As
mentioned above (see paragraph 37), the Court will take the present
claim into consideration. It awards the applicant EUR 570 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 complaints under Articles 6 §
1 and 13 of the Convention admissible;
Holds that there has been a violation of Article
6 § 1 of the Convention;
Holds that there has been a violation of Article
13 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 4,300 (four thousand three hundred euros), plus any tax that may
be chargeable, in respect of non-pecuniary damage;
(ii)
EUR 570 (five hundred and seventy euros), plus any tax that may be
chargeable to the applicant;
(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 15 February 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza Registrar President
