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KOMANICKY v. SLOVAKIA (No. 6) - 40437/07 [2012] ECHR 997 (12 June 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/997.html
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[2012] ECHR 997
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THIRD
SECTION
CASE OF
KOMANICKÝ v. SLOVAKIA (No. 6)
(Application
no. 40437/07)
JUDGMENT
STRASBOURG
12
June 2012
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. 6),
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Corneliu Bîrsan,
Alvina
Gyulumyan,
Egbert Myjer,
Ján
Šikuta,
Luis López Guerra,
Nona
Tsotsoria, judges,
and Santiago Quesada,
Section Registrar,
Having
deliberated in private on 22 May 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 40437/07) 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, Mr Ioan Kornelij Komanický (“the
applicant”), on 6 September 2007.
The
Government of the Slovak Republic (“the Government”) were
represented by Ms M. Pirošíková, their Agent.
On
30 June 2011 the
application was communicated 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
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1943 and lives in Bardejov. He has thus far
brought more than 120 cases under the Convention (see, for example,
Komanický v. Slovakia (dec.), no. 9845/06, 13 December
2011, with further references).
A. Civil proceedings
On
9 January 2001 the applicant lodged an action with the Bardejov
District Court (Okresný súd) against the City of
Bardejov. He argued that modifications had been carried out without
his knowledge and consent on the defendant’s real property and
that this encumbered access to his own property. He claimed a
judicial order that the defendant “put [its] property in such a
state as to enable problem-free access by car or other means to [the
applicant’s property]”.
The
action was registered with the District Court under file no. 3C
15/01.
On
7 June 2004, following the applicant’s appeal (odvolanie),
the Prešov Regional Court (Krajský súd)
quashed a first-instance judgment of 11 February 2003 to dismiss the
action and remitted to case to the District Court for re examination.
The Court of Appeal found that the first-instance court had erred in
hearing the action on 11 February 2003 in the absence of the
applicant despite his having excused himself one day before on
health-related grounds.
On
30 December 2005, following the applicant’s appeal, the
Regional Court again quashed a first instance judgment (of 3 February
2005) to dismiss the action and remitted the case to the
District Court for re examination. The Court of Appeal found
that the first-instance court had erred in that it had failed to
instruct the applicant on how to formulate his claim properly.
On
10 August 2006 and 25 January 2007, respectively, the District Court
and, following the applicant’s appeal, the Regional Court
declared the action inadmissible on the ground that, despite a
previous request and a warning, the applicant had failed to
formulate his claims in accordance with the applicable procedural
requirements and the instructions in the Regional Court’s
judgment of 30 December 2005 (see the preceding paragraph). The
decision became final and binding on 15 March 2007.
On
1 July 2009, following the applicant’s appeal on points of law
(dovolanie), the Supreme Court (Najvyšší
súd) quashed the decisions of 10 August 2006 and 25
January 2007 (see the preceding paragraph). It found that the lower
courts had failed adequately to inform the applicant on the
shortcomings of his submissions and ways of correcting them. The
District Court’s decision moreover lacked proper reasoning. In
addition, Supreme Court considered it striking and prompting doubts
as to the conclusion of the lower courts that the applicant’s
submissions were rejected more than five years after the introduction
of his action and after it had been decided upon twice on the merits.
Since
the Supreme Court’s judgment of 1 July 2009 (see the preceding
paragraph), the case has been pending, presently on appeal.
In
the course of the proceedings numerous procedural matters have been
examined and resolved at one or two levels of jurisdiction such as,
for example, the procedural standing of the applicant’s wife,
exemption of the applicant from the obligation to pay the court fees
(including questions related to the couple’s financial
standing), the applicant’s proposal for an in court
settlement, and modifications to the particulars of the applicant’s
claim.
B. Complaints to the Presidents of the District Court
and the Regional Court
On
24 March 2003 the applicant filed a brief submission to the President
of the District Court entitled “Complaint of judges for delays
in proceedings”. In this submission, the applicant invoked his
right under Article 48 § 2 of the Convention to a hearing
without unjustified delay and referred to “all judges of the
District Court to whom his matters ha[d] been assigned and [such
matters] ha[d] not been handled within a reasonable time”. No
file numbers or other identifiers were mentioned.
On
26 March 2003 the applicant filed another brief submission with
similar content with the President of the Regional Court in which he
referred to “the judges of the Regional Court and the President
of the District Court”.
On
17 July 2004 the applicant filed again a similar submission with the
District Court entitled “Repeated complaint of unjustified
delays in proceedings”, referring to his complaint of March
2003, presumably that mentioned in paragraph 12 above.
C. Constitutional proceedings
1. First complaint
On
11 May 2004 the applicant filed a complaint under Article 127 of the
Constitution (Constitutional Law no. 460/1992 Coll., as amended –
Ústava Slovenskej republiky)
with the Constitutional Court (Ústavný súd)
contesting the length of the proceedings in his action in so far as
they had taken place before the Regional Court.
On
16 September 2004 the Constitutional Court declared the complaint
inadmissible as being manifestly ill-founded. It observed that the
applicant had only contested the part of the proceedings before the
Regional Court and found that the length of that part of the
proceedings had not been excessive. In reaching that conclusion the
Constitutional Court took into account that the length of those
proceedings had partly been influenced by the applicant’s
persisting health problems.
2. Second complaint
On
3 January 2007 the applicant complained to the Constitutional Court
of the length of the proceedings in his action again, this time
directing the complaint against both the District Court and the
Regional Court and seeking the equivalent of some 4,350 euros (EUR)
by way of just satisfaction.
On
3 April 2007 the Constitutional Court declared the complaint
inadmissible on the ground that, prior to its introduction, the
applicant had failed to comply with the requirement of exhaustion of
remedies pursuant to section 53(1) of the Constitutional Court Act
(Law no. 38/1993 Coll., as amended – Zákon
o organizácii Ústavného súdu
Slovenskej republiky, o konaní pred ním a o
postavení jeho sudcov) by asserting his rights by way of a
complaint to the president of the given court under the Courts Act
(Law no. 757/2004 Coll., as amended – Zákon o
súdoch). In particular, the Constitutional Court found
that the applicant’s complaints of 24 and 26 March 2003
and 17 July 2004 (see paragraphs 12, 13 and 14 above) could not be
considered as having amounted to proper complaints under the Courts
Act on account of their vagueness and general tenor, in combination
with the extensive amount of litigation that the applicant was
involved in before the courts in question.
3. Third complaint
On
14 May 2007 the applicant turned to the Constitutional Court again.
Relying inter alia on Article 6 §
1 of the Convention, he complained of the decisions to declare his
action inadmissible (see paragraph 8 above).
On
29 May 2007 the Constitutional Court declared the complaint
inadmissible as being manifestly ill-founded, having found no
constitutionally relevant unfairness or arbitrariness in the
contested decisions.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Constitution (see paragraph 15 above)
The
relevant part of Article 48 § 2 provides:
“Everyone shall have the right to have his matter
... heard without undue delay...”
Article
127 reads as follows:
“1. The Constitutional Court shall
decide on complaints by natural or legal persons alleging a violation
of their fundamental rights or freedoms ... unless the protection of
such rights and freedoms falls within the jurisdiction of a different
court.
2. If the Constitutional Court finds a
complaint justified, it shall deliver a decision stating that a
person’s rights or freedoms as set out in paragraph 1 have been
violated by a final decision, specific measure or other act and shall
quash such decision, measure or act. If the violation that has been
found is the result of a failure to act, the Constitutional Court may
order [the authority] which has violated the rights or freedoms to
take the necessary action. At the same time it may remit the case to
the authority concerned for further proceedings, order such authority
to refrain from violating the fundamental rights and freedoms ... or,
where appropriate, order those who have violated the rights or
freedoms set out in paragraph 1 to restore the situation to that
existing prior to the violation.
3. In its decision on a complaint the
Constitutional Court may grant appropriate financial compensation to
the person whose rights under paragraph 1 have been violated.”
B. Constitutional Court Act (see paragraph 18 above)
The
relevant part of section 53:
“1. A[n] [individual] complaint is not
admissible if the complainant has not exhausted legal remedies or
other legal means, which a statute effectively provides to [the
complainant] with a view to protecting [the complainant’s]
fundamental rights or freedoms, and which the complainant is entitled
to use under special statute.
2. The Constitutional Court shall not declare
a[n] [individual] complaint inadmissible even if the condition under
sub-section 1 has not been fulfilled, if the complainant establishes
that [the complainant] has not fulfilled this condition owing to
reasons worthy of particular consideration.”
C. Courts Act (see paragraph 18 above)
The
Act governs the system and powers of courts and courts’
administration. Its chapter (Hlava) 1 in part (Časť)
3 lays down the general rules on administration and management of
courts. Its relevant part provides:
“Section 32
...
2. The administration and management of
courts may not interfere with their decision making activities.
Section 33
1. The administration and management of
courts shall be carried out by bodies of administration and
management to the extent and by means laid down by statute.
2. Bodies of administration and management of
courts include the president and the vice-president of a court. ...
...
Section 34
1. The ministry [of justice] is in charge of
the management of courts as the central body of State administration
for the judiciary”
Chapter
in part 4 deals with the powers of a president of a court. The
relevant part of section 53 provides:
“1. The president of a court oversees
the judges’ compliance with ethical standards and the
principles that judicial proceedings should be smooth and dignified
and, for that purpose
...
(f) monitors the decision-making activities of
judges from the point of view of the smooth conduct of judicial
proceedings,
(g) examines complaints.
...
3. Should the president of a court establish
a violation of the principle ... of the smooth conduct of judicial
proceedings, the president is duty-bound to debate the shortcomings
found with the judge concerned ... and, if necessary, to order
measures ... to be taken with a view to eliminating the shortcomings
found as well as their cause...
...”
Chapter
4 in part 4 deals with complaints about a court’s conduct. Its
relevant part provides as follows:
“Section 62
1. A complaint may be brought by a
participant or a party to proceedings. A complaint about a
court’s conduct may be brought following a breach of the right
to a public hearing without unjustified delay or [...]
[...]
Section 63 – Examination of complaints
1. A complaint shall be dealt with by the
president of the court concerned, unless [the Criminal Procedure
Code] provides otherwise.
2. Complaints against the president of the
court shall be dealt with by the president of a higher court.
Section 64
1. The purpose of dealing with a complaint is
to establish whether there has been a delay in proceedings ...
and to rectify any shortcomings found.
2. In order to establish the status of the
matter, the body dealing with a complaint is duty-bound to examine
all circumstances. Should the proper dealing with a complaint so
require, the complainant shall be heard, as shall the persons against
whom the complaint is directed and any other persons who may
facilitate the examination of the complaint.
3. Should the body entrusted with dealing
with the complaint establish that it is justified, [it] shall take
and ensure the taking of measures with a view to rectifying
shortcomings and, if necessary, call those responsible for the
shortcomings to account.
Section 65
1. A complaint shall be dealt with within
thirty days of the date on which it is received by the body liable to
deal with it.
[...]
Section 66
The complainant must be informed in writing of the way
in which a complaint has been dealt with and of the measures taken
with a view to rectifying the shortcomings established. [...]
Section 67 – Review of examination of complaints
1. Should the complainant be of the view that
a complaint which he filed to the competent body of a court has not
been dealt with properly, [the complainant] may, within 30 days of
the service [on the complainant] of the reply [to the complaint],
demand that:
(a) the president of a Regional Court review the
examination of the complaint by the president of a District Court,
(b) the ministry [of justice] review the
examination of the complaint by the president of a Regional Court or
the Specialised Criminal Court.
[...]
Section 70 – Common provisions
A complaint submitted to a court under section 62 or
[...], shall be considered on its merits.”
The
Act entered into force on 1 April 2005 (Article XV). It replaced
(section 102), inter alia, the State Administration of Courts
Act (Law no. 80/1992 Coll., as amended – Zákon o
sídlach a obvodoch súdov Slovenskej republiky, štátnej
správe súdov, vybavovaní sťaZností a
o voľbách prísediacich (zákon o štátnej
správe súdov)), which had regulated the issue until
then, according to a similar pattern (see, for example, Polka v.
Slovakia (dec.), no. 72241/01, 13 November 2007; Harabin v.
Slovakia (dec.), no. 62584/00, 29 June 2004; Molnárová
and Kochanová v. Slovakia (dec.), no. 44965/98, 9 July
2002; and I.S. v. Slovakia, no. 25006/94, § 24,
4 April 2000).
D. State Liability Act (Law no. 514/2003 Coll., as
amended)
The
State Liability Act 2003 (Zákon o zodpovednosti za škodu
spôsobenú pri výkone verejnej moci) was
enacted on 28 October 2003. It became operative on 1 July 2004 and
replaced, as from that date, the State Liability Act of 1969 (Law no.
58/1969 Coll. – Zákon o zodpovednosti za škodu
spôsobenú rozhodnutím orgánu štátu
alebo jeho nesprávnym úradným postupom).
The
State Liability Act 1969 had no specific provisions for compensation
for damage of a non-pecuniary nature (see, mutatis mutandis,
Karlin v. Slovakia, no. 41238/05, § 65, 28 June 2011 with
further references).
The
explanatory report on the State Liability Act 2003 provides that the
purpose of the Act is to render the mechanism of compensation for
damage caused by public authorities more effective and thus to reduce
the number of cases in which persons are obliged to seek redress
before the European Court of Human Rights.
Section
9 provides:
“1. The State is liable for damage
caused by wrongful official conduct. Wrongful official conduct
includes a public authority’s failure to take action or issue a
decision within the statutory time-limit, general inactivity in the
exercise of public authority, unjustified delays in proceedings or
other unlawful interference with rights and legally recognised
interests of individuals and legal entities.
2. The right to compensation for damage
caused by wrongful official conduct is vested in the person who
sustained the damage.”
Section
17 defines the manner and extent of compensation for damage. Its
relevant part provides:
“1. Damage and lost profit shall be
compensated for, unless special legislation provides otherwise.
2. In the event that the finding of a
violation of a right alone is not adequate compensation in view of
the loss caused by the unlawful official action or wrongful official
conduct, monetary compensation shall also be awarded for
non-pecuniary damage, if it is not possible to compensate for it
otherwise.”
Part
5 of the Act contains common and transitional provisions. Section 27
reads as follows:
“1. Liability under this Act applies to
damage caused by decisions [issued] and wrongful official conduct
[taking place] after the day of its entry into force.
2. Liability for damage caused by decisions
issued and wrongful official conduct [having taken place] before the
entry into force of this Act shall be governed by the hitherto
applicable statute.”
E. Constitutional Court’s report and practice
1. Report
In
connection with three other individual applications under the
Convention of a similar kind, the Constitutional Court produced a
report.
The
report is dated 7 June 2010 and concerns, specifically, the
application of the rule of exhaustion of remedies under section 53(1)
and (2) of the Constitutional Court Act, with reference to a
complaint under the Courts Act, in the context of a complaint under
Article 127 of the Constitution about the length of proceedings.
The
report can be summarised as follows.
In
applying section 53(1) of the Constitutional Court Act, the
Constitutional Court relies on the principles of an “available”
and “effective” remedy. By this is understood that the
remedy is directly accessible to the complainant and that using it
has direct procedural consequences capable of achieving redress in
the form of restitution, compensation or at least prevention. As to a
complaint under the Courts Act in respect of the length of
proceedings, its preventive (accelerating) effect for the future is
central.
In
the exercise of their duties, should the presidents of courts
establish unjustified delays in proceedings, they are duty-bound to
debate them with the judge concerned and, if necessary, to prescribe
measures to be taken with a view to rectifying the shortcomings
found, as well as their cause. Moreover, they have the power to
impose disciplinary sanctions.
The
effectiveness of a complaint under the Courts Act and the requirement
for it to be used are examined on the specific facts of every
individual case, taking into account:
(i) the
outcome of the complaint (in particular whether it was found
justified or not and whether the complainant has been informed of any
measures taken);
(ii) the
conduct of the court subsequent to the introduction of the complaint
(whether the court has started examining the matter and begun taking
specific procedural steps);
(iii) the
overall length and the subject matter of the proceedings (whether any
accelerating effect of the complaint is of importance and relevance
from the point of view of the object and purpose of the right to a
hearing without unjustified delay, in view of the past length of the
proceedings and their subject matter); and
(vi) the
conduct of the complainants from the point of view of actively
asserting their right to a hearing without unjustified delay.
Application
of the general criteria mentioned in the preceding paragraph results
in two contrasting situations, depicted in the following two
paragraphs.
First,
the Constitutional Court has not required complainants to use the
remedy in question in cases where the length of proceedings has been
“extreme” or “manifestly disproportionate”,
provided that, in the course of those proceedings, the complainants
had been actively seeking their acceleration, even if not by way of a
formal complaint under the Courts Act.
Second,
the Constitutional Court has declared inadmissible complaints under
Article 127 of the Constitution on account of the complainants’
failure to comply with the requirement under section 53(1) of the
Constitutional Court Act to exhaust remedies – the complaint
under the Courts Act – if the complainants lodged their
complaints under the Courts Act only formally, that is to say:
(i) after
they had brought their complaints to the Constitutional Court,
(ii) at
the same time as they brought their complaints to the Constitutional
Court, or
(iii) if
they lodged their constitutional complaints so soon after their
complaints under the Courts Act that it was not objectively possible
for the ordinary court to provide redress and for the Constitutional
Court to assess the effect of the complaint under the Courts Act.
A
review by the president of the higher court of the examination of
a complaint under the Courts Act by the president of a lower
court has never been required by the Constitutional Court for the
purposes of the exhaustion rule under section 53(1) of the
Constitutional Court Act.
A
complaint under the Courts Act, combined with an action for damages
under the State Liability Act, and a complaint under Article 127 of
the Constitution constitute a set of remedies to be considered
compatible with the standards set out in the Court’s judgment
in the case of Kudła v. Poland ([GC], no. 30210/96,
ECHR 2000 XI), including those under Article 13 of the
Convention.
2. Case-law cited in the report
The
report cites, inter alia, the following cases, which the
Constitutional Court declared inadmissible because a complaint under
the Courts Act (or its equivalent under the State Administration of
Courts Act):
(i) had
not been lodged (case no. II. ÚS 93/04, decision of 8 April
2004; case no. III. ÚS 132/05, decision of 5 May 2005; and
case no. III. ÚS 401/08, decision of 3 December
2008);
(ii) had
not been lodged in the appropriate (written) form and, in any event,
the alleged telephone complaint had been made just four days before
the introduction of the constitutional complaint (case no. IV. ÚS
265/05, decision of 7 November 2005); and
(iii) could
not be considered as having been properly used, as it had been lodged
only eight days (case no. IV. ÚS 306/04, decision of
13 October 2004), one month and twenty-five days (case no.
III. ÚS 85/06, decision of 8 March 2006), and not earlier than
one month and eighteen days (case no. III. ÚS 13/06,
decision of 4 January 2006) before the introduction of the respective
constitutional complaint.
As
to some other of the Constitutional Court’s decisions (see
paragraph 46 below), which may appear not consistent with those cited
above, without further elaboration, the report suggests that they are
not comparable and thus relevant because:
- the
proceedings had commenced on 14 June 2000, the complaint under the
Courts Act had been lodged on 6 October 2004, the president had
replied on 25 October 2004 and the constitutional complaint had not
been lodged until 30 December 2004 (case no. IV. ÚS 15/05);
- a
complaint under the Courts Act could no longer have had any
accelerating effect since, prior to it, the proceedings had been
transferred to a different court for reasons of jurisdiction (case
no. III. ÚS 67/05);
- the
proceedings had commenced in 1992, an application aimed at
eliminating unjustified delays had been lodged on 30 June 2002 and
the constitutional complaint had been lodged on 15 November 2005
(case no. I. ÚS 23/06);
- although
the president of the court concerned had accepted that there had been
unjustified delays in the proceedings, these were due to “objective
grounds”, the proceedings having been conducted in a continuous
manner, and no corrective measures were envisaged (case no. I. ÚS
33/06);
- the
action had been lodged on 16 October 2001, a complaint under the
Courts Act had been lodged on 28 September 2005, the response of the
president of the court concerned had been served on the complainant
on 4 November 2005 and the constitutional complaint had not been
introduced until more than four months later (on 21 March 2006) (case
no. I. ÚS 182/06);
- in
the course of the proceedings the complainants had several times
demanded that hearings be scheduled and that the proceedings be
conducted in a continuous manner, the proceedings at the relevant
time having lasted for some six years and seven months (case no. I.
ÚS 30/07); and
- although
the complainant had not formally lodged a complaint under the Courts
Act, he had actively sought to have hearings scheduled and the
proceedings conducted in a continuous fashion on numerous occasions
(case no. III. ÚS 154/06).
3. Other case-law
In
an unrelated case no. II. ÚS 26/95, with reference to a
complaint under the State Administration of Courts Act, which was in
the relevant aspects comparable to a complaint under the Courts Act
(see paragraph 27 above), the Constitutional Court held that the use
of such a complaint was not required prior to a claim before the
Constitutional Court that the length of the judicial proceedings in
question was excessive (judgment (nález) of 25 October
1995).
In
other unrelated cases the Constitutional Court declared admissible
the following constitutional complaints:
(i) which
had been lodged two months and five days (case no. IV. ÚS 15/05,
decision of 18 January 2005), two months and two days (case no.
III. ÚS 67/05, decision of 2 March 2005), one month and
seventeen days (case no. I. ÚS 33/06, decision of 9 February
2006), one month and seven days (case no. III. ÚS 214/06,
decision of 27 June 2006), sixteen days (case I. ÚS 258/06,
decision of 23 August 2006), twenty-one days (case no. II. ÚS 283/06,
decision of 13 September 2006), twelve days (case no. I. ÚS 30/07,
decision of 21 March 2007), thirty-one days (case no. IV. ÚS 279/09,
decision of 7 August 2009), one month and eleven days (case no. II.
ÚS 414/09, decision of 10 December 2009), and seventeen days
(case no. II. ÚS 256/2010, decision of 15 March 2010) after
the reply of the president of the court concerned who had accepted
that there had been unjustified delays in the proceedings concerning
actions of 14 June 2000, 20 June 2000, 11 January 1995, 13
September 1999, 13 June 1996, 9 April 2002, 28 March
2000, 13 November 2001, 2 December 1997 and 27 September 2007
respectively; and
(ii) without
examining whether or not prior to the constitutional complaint the
complainant had asserted his rights by way of a complaint under the
Courts Act in an action of 13 April 1992 (case no. I. ÚS 23/06
(decision of 18 January 2006)), in an action of 16 October 2001 (case
no. I. ÚS 182/06 (decision of 8 June 2006)) and in an
action of 6 December 1994 (case brought by the present
applicant under file no. II 243/09 (decision of 11 June 2009)).
In
cases nos. III. ÚS 220/09 and I. ÚS 267/09 the
Constitutional Court dealt with repeated complaints under Article 127
of the Constitution of continuing delays in judicial proceedings
following and despite previous judgments of the Constitutional Court
finding a violation of the complainants’ right to a hearing
within a reasonable time and ordering the courts in question to
proceed with the respective cases without delay.
Case
no. III. ÚS 220/09 (decision of 28 July 2009) was declared
admissible without a specific examination of whether a complaint had
been lodged under the Courts Act.
Case
no. I. ÚS 267/09 (decision of 29 September 2009) was declared
inadmissible on account of the complainant’s failure duly to
use that remedy, his previous requests for the proceedings to be
accelerated not having been taken into account.
In
cases nos. I. ÚS 272/08 and II. ÚS 435/08 the
Constitutional Court dealt with complaints by two individuals about
the length of the proceedings in their joint action for damages. The
complainants were represented by the same lawyer and had both lodged
complaints under the Courts Act (30 May and 8 July 2008 respectively)
prior to introducing their constitutional complaints (21 July and 29
September 2008 respectively).
Case
no. I. ÚS 272/08 (decision of 18 September 2008) was declared
inadmissible because it had been lodged too soon after the reply of
the president of the respective court (18 June 2008).
Case
no. II. ÚS 435/08 (decision of 27 November 2008) was declared
admissible.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained that the rejection of his action had violated
his right of access to a court and that the length of the proceedings
in his action 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
1. Access to a court
Observing
that the decision to declare the applicant’s action
inadmissible was quashed and that the case was remitted to the
fist-instance court where it has since been pending, the Court finds
that the complaint of the alleged violation of the applicant’s
right of access to a court is premature.
It
follows that the relevant part of the application must be rejected
under Article 35 §§ 1 and 4 of the
Convention for non-exhaustion of domestic remedies.
2. Length of the proceedings
(a) Parties’ arguments
The
Government argued that the applicant had failed to comply with the
requirement of exhaustion of domestic remedies under Article 35 § 1
of the Convention.
In
that connection, they relied on the Constitutional Court’s
report of 7 June 2010 (see paragraphs 34 et seq. above) and
advanced two reasons.
First,
the applicant had failed to lodge his complaint under Article 127
of the Constitution in accordance with the applicable formal
requirements and established practice of the Constitutional Court.
More
specifically, with reference to the Constitutional Court’s
decision of 3 April 2007 in the applicant’s case (see paragraph
18 above), the applicant could not be considered as having duly used
the remedy under the Courts Act because he had failed to formulate
his complaints to the presidents of the District Court and the
Regional Court with any precision allowing it to be linked to the
proceedings at stake in the present case, there being a great
number of proceedings involving the applicant before those courts.
Moreover, in the Government’s submission, as his action was
still pending, it was still open to the applicant to pursue the
remedy in question properly.
Second,
the Government were of the view that the applicant should have, but
had not, asserted his rights by way of an action for damages under
the State Liability Act, which – under its sections 9 and 17 –
applied to unjustified delays in proceedings and allowed for
compensation of non pecuniary damage.
In
that connection, a finding of a violation of the applicant’s
rights by the Constitutional Court was not a precondition of such a
compensation claim, and the rejection of the applicant’s
constitutional complaint did not exclude them from claiming damages
under the State Liability Act.
The
Government made a distinction between a complaint under the Courts
Act, which was of a preventive (accelerating) nature, and a claim for
damages under the State Liability Act, which was of a compensatory
nature. In view of the character of the remedy under Article 127 of
the Constitution, the Constitutional Court only required the former
remedy to be used before a constitutional complaint could be made,
but not the latter. Therefore, the failure of the applicant’s
constitutional complaint in no way impaired his chances of success
under the State Liability Act.
As
to the substance, the Government admitted that “doubts [might]
arise as to the efficiency of the lower courts in handling the
contested proceedings”. Nevertheless, in their submission, the
overall length of the proceedings was influenced by the applicant’s
and his lawyer’s procedural behaviour.
The
applicant disagreed and reiterated his complaint. In particular, he
submitted that it was not appropriate to require of him the
exhaustion of any further remedies 11 years after the introduction of
his action. Referring to the Constitutional Court’s judgment of
25 October 1995 in the case no. II. ÚS
26/95 (see paragraph 45 above), where it was held specifically that
a complaint to the president of the court was not a prerequisite
of a constitutional recourse in respect of excessive length of
judicial proceedings, and to the Constitutional Court’ decision
of 11 June 2009 (see paragraph 46 above) in one of his own unrelated
cases, where no complaint to the president of the court in question
had been required for the purposes of his constitutional complaint,
the applicant concluded that there was no established practice on the
part of the Constitutional Court in that respect.
As
to a claim for damages under the State Liability Act, the applicant
submitted inter alia that such a claim would be directed
against and entertained by the same court which compromised any
prospects of success that it might hypothetically have. In addition,
it would generate further litigation without solving the essence of
the problem, which was the length of the proceedings in the action
that he had lodged in 2001.
(b) The Court’s assessment
The
Court considers that, in the present case, the question of exhaustion
of domestic remedies under Article 35 § 1 of the Convention
raises issues which are closely linked to the merits of the
applicants’ complaints and that it would be more appropriately
examined at the merits stage.
At
the same time, the Court considers, in the light of the parties’
submissions, that the complaint under Article 6 § 1 of the
Convention 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 (a)
of the Convention. No other ground for declaring it inadmissible has
been established. It must accordingly be declared admissible.
B. Merits
1. Applicable general principles
Under
Article 1 of the Convention, which provides that “[t]he High
Contracting Parties shall secure to everyone within their
jurisdiction the rights and freedoms defined in Section I of [the]
Convention”, the primary responsibility for implementing and
enforcing the rights and freedoms guaranteed by the Convention is
laid on the national authorities. The machinery of complaint to the
Court is thus subsidiary to national systems safeguarding human
rights. This subsidiary character is articulated in Articles 13 and
35 § 1 of the Convention (see, among other authorities,
Cocchiarella v. Italy [GC], no. 64886/01, § 38, ECHR 2006
V).
The
purpose of Article 35 § 1, which sets out the rule on exhaustion
of domestic remedies, is to afford the Contracting States the
opportunity of preventing or putting right the violations alleged
against them before those allegations are submitted to the Court
(see, among other authorities, Selmouni v. France [GC], no.
25803/94, § 74, ECHR 1999-V). The rule in Article 35 § 1 is
based on the assumption, reflected in Article 13 (with which it has
close affinity), that there is an effective domestic remedy available
in respect of the alleged breach of an individual’s Convention
rights (see Kudła v. Poland [GC], no. 30210/96, §
152, ECHR 2000-XI).
Nevertheless,
the only remedies which Article 35 of the Convention requires to be
exhausted are those that relate to the breaches alleged and at the
same time are available and sufficient. The existence of such
remedies must be sufficiently certain not only in theory but also in
practice, failing which they will lack the requisite accessibility
and effectiveness (see, among other authorities, Scordino v. Italy
(no. 1) [GC], no. 36813/97, § 142, ECHR 2006 V).
Remedies
available to a litigant at domestic level for raising a complaint
about the length of proceedings are “effective” within
the meaning of Article 13 of the Convention if they prevent the
alleged violation or its continuation, or provide adequate redress
for any violation that has already occurred. A remedy is therefore
effective if it can be used either to expedite a decision by the
courts dealing with the case, or to provide the litigant with
adequate redress for delays that have already occurred (see Mifsud
v. France (dec.) [GC], no. 57220/00, § 17, ECHR 2002-VIII).
However,
as the Court emphasised, the best solution in absolute terms is
indisputably, as in many spheres, prevention. Where the judicial
system is deficient with regard to the reasonable-time requirement in
Article 6 § 1 of the Convention, a remedy designed to
expedite the proceedings in order to prevent them from becoming
excessively lengthy is the most effective solution. Such a remedy
offers an undeniable advantage over a remedy affording only
compensation since it also prevents a finding of successive
violations in respect of the same set of proceedings and does not
merely repair the breach a posteriori, as does a compensatory
remedy. Some States have understood the situation perfectly by
choosing to combine two types of remedy, one designed to expedite the
proceedings and the other to afford compensation (see Sürmeli
v. Germany [GC], no. 75529/01, § 100, ECHR 2006 VII, with
further references).
Where
a domestic legal system has made provision for bringing an action
against the State, the Court has pointed out that such an action must
remain an effective, sufficient and accessible remedy in respect of
the excessive length of judicial proceedings and that its sufficiency
may be affected by excessive delays and depend on the level of
compensation (see Sürmeli, cited above, § 101, with
further references).
2. Relevant Convention case-law in respect of Slovakia
Until
constitutional amendment no. 90/2001 Coll., there were no effective
remedies within the meaning of Article 35 § 1 of the Convention
in Slovakia in respect of the excessive length of judicial
proceedings. The effectiveness of the following remedies was not
accepted for the purposes of that provision: a petition under what
was then Article 130 of the Constitution (see, for example, Bánošová
v. Slovakia (dec.), no. 38798/97, 27 April 2000), a complaint
under the State Administration of Courts Act (see, for example,
Molnárová and Kochanová v. Slovakia
(dec.), no. 44965/98, 4 March 2003) and an action for damages
under the State Liability Act 1969 (see, for example, Švolík
v. Slovakia, no. 51545/99, §§ 37-38, 15 February
2005).
Under
constitutional amendment no. 90/2001 Coll., a new remedy was
established, a complaint under the amended Article 127 of the
Constitution (Constitutional Law no. 460/1992 Coll., as amended) (see
paragraphs 15 and 11 above), which is in general considered to be a
remedy to be used for the purposes of Article 35 § 1 of the
Convention in respect of the excessive length of proceedings (see,
for example, Andrášik and Others v. Slovakia
(dec.), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00,
68563/01 and 60226/00, ECHR 2002 IX).
In
its decision in the application of Bako v. Slovakia (no.
60227/00, 15 March 2005), the Court acknowledged that, when dealing
with complaints under Article 127 of the Constitution in respect of
the length of proceedings, the Constitutional Court’s practice
was to examine separately the segments of those proceedings taking
place before different courts. This practice stemmed from the need
for the Constitutional Court to identify separately the authorities
which might be liable for a violation of the complainant’s
human rights and fundamental freedoms and which, as the case may be,
it would then order to provide appropriate redress to the person
concerned. In the Court’s decision in Bako (cited
above), it was also noted that this approach was different from that
of the Court, which consists in examining the overall length of the
proceedings. In this connection the Court wishes to clarify that an
examination of the overall length of the proceedings does not
preclude that a particular attention be given to a specific
segment of the proceedings taking place before a specific court.
In
its decision in Bako (cited above), the Court found that it
therefore had to satisfy itself in each individual case whether the
protection of a person’s right granted by the
Constitutional Court of the Slovak Republic was comparable to that
which the Court could provide under the Convention. In cases
concerning the length of proceedings this requirement will only be
met where the Constitutional Court’s decision, while structured
so as to make a separate assessment of each of the individual stages
of proceedings, is capable of covering all stages of the proceedings
complained of and thus, in the same way as decisions given by the
Court, of taking into account their overall length.
Consequently,
it was found that, in order to satisfy the requirements of Article 35
§ 1 of the Convention, applicants had to have formulated their
complaints under Article 127 of the Constitution in a way that would
allow the Constitutional Court to examine the overall length of the
proceedings in issue (see Obluk v. Slovakia, no. 69484/01, §
62, 20 June 2006).
The
Court has also acknowledged the Constitutional Court’s practice
of entertaining complaints under Article 127 of the Constitution
about the length of proceedings only where the proceedings complained
about are pending before the authority liable for the alleged
violation at the time such complaints are lodged (see Obluk,
cited above, § 51) and it has held that, for the purposes of
Article 35 § 1 of the Convention, applicants had to have
introduced their constitutional complaints in accordance with this
practice (see Mazurek v. Slovakia (dec.), no. 16970/05, 3
March 2009).
Reaffirming
the importance of the protection afforded to applicants in each
individual case at the national level being comparable to that
afforded by the Court under the Convention, as specified in paragraph
71 above, the Court acknowledged that it is first of all for the
national authorities to devise means and methods of examining
individual complaints so as to render the protection of their rights
effective (see Michalák v. Slovakia, no. 30157/03, §§
176-77, 8 February 2011).
3. Assessment of the present case
The
Court reiterates that it is not its role to decide in the abstract
whether the applicable domestic law is compatible with the Convention
or whether the domestic law has been complied with by the national
authorities. In cases arising from individual petitions it must as
far as possible examine the issues raised by the case before it. The
question of exhaustion of domestic remedies will therefore now be
examined with reference to the specific circumstances of the present
case only (see, for example, Jakub v. Slovakia, no. 2015/02, §
48, 28 February 2006, with further references).
(a) Complaint under the Courts Act
The
Court considers that, strictly speaking, the essential question to be
answered is not whether a complaint under the Courts Act is effective
within the meaning of Article 35 § 1 of the Convention as such,
but rather whether the applicant has complied with the exhaustion
requirement under that Article.
From
that perspective, the Court reiterates that in Slovakia, in respect
of the excessive length of proceedings, the remedy that is normally
considered to be effective and that accordingly has to be used for
the purposes of the domestic remedies rule under the Convention is
the complaint under Article 127 of the Constitution (see Andrášik
and Others, cited above).
The
Court observes that the applicant in the present case made three
separate submissions aimed at the length of proceedings. These
applications were made on 24 and 26 March 2003 and 17 July 2004 (see
paragraphs 12, 13 and 14 above) and were phrased in general term and
without specifying any particular set of proceedings. Their vagueness
in combination with the number of court proceedings involving the
applicant before the courts concerned was the reason why the
Constitutional Court found that these applications did not amount to
a valid complaint under the Courts Act (see paragraphs 18
above).
In
this context, although it is not decisive, the Court finds it useful
to reiterate that lodging a complaint of delays in proceedings
to the president of the court concerned under the State
Administration of Courts Act, which was comparable to a complaint
under the Courts Act (see paragraph 26 above), has been found not to
be an effective remedy for the purposes of Article 35 § 1 of the
Convention (see paragraph 61 above).
The
Court also finds it useful to reiterate that, when examining
complaints about the length of proceedings, the president of the
court concerned acts in the capacity of manager rather than in a
judicial capacity (see paragraph 28 above and also DMD GROUP, a.s.
v. Slovakia, no. 19334/03, §§ 40, 41 and 65, 5
October 2010).
At
this juncture the Court reiterates that, for a remedy to be
“effective” for Convention purposes, it has to allow
prevention of the alleged violation or its continuation, or to
provide adequate redress for any violation that has already occurred
(see paragraph 60 above). While, in respect of lengthy proceedings, a
preventive measure is preferable, if a length-of-proceedings
violation has already occurred, a remedy designed only to expedite
them may not be adequate, and compensation or another form of redress
may be called for (see Cocchiarella, cited above, §§
74-77).
The
Court notes that a complaint under Article 127 of the Constitution is
precisely aimed at allowing redress of both a preventive and
compensatory nature (see Andrášik and Others,
cited above).
However,
the ultimate effect for an applicant may change when the availability
of redress under Article 127 of the Constitution becomes dependent on
a complaint under the Courts Act, the latter having no compensatory
potential. In this context it is to be noted that, before the
Constitutional Court, the applicant claimed compensation in the
amount of some EUR 4,350 (see paragraph 17 above), that a complaint
under the Courts Act could at most bring about acceleration of the
proceedings, but that there was no scope for any such compensation
claim in connection with it.
In
these circumstances, the Court has to examine the overall
effectiveness, from the point of view of Article 35 § 1 of the
Convention, of the combination of remedies available to the
applicant.
As
to the functional relationship between a complaint under Article 127
of the Constitution and a complaint under the Courts Act, the Court
notes the explanations provided by the Government, in particular
their reliance on the Constitutional Court’s report of 7 June
2010 (see paragraphs 34 et seq. above), submitting that:
- a
complaint under the Courts Act is in general a remedy to be used
before a complaint under Article 127 of the Constitution can be made;
- making
use of a complaint under the Courts Act is, however, not required in
cases where the length of proceedings is “extreme” and
“manifestly disproportionate”, provided that the
complainant had actively been seeking their acceleration;
- the
complaint under the Courts Act cannot be considered as having been
duly used if it was lodged at the same time as a complaint under
Article 127 of the Constitution, after its introduction, or if the
latter was introduced too early after the reply of the president of
the court in question to the former.
The
Court observes that, rather than stemming directly from decisions and
judgments of the Constitutional Court, this summary of the
Constitutional Court’s practice was drawn up post factum
and at an administrative level and that, although being
certainly of informative value, it has no normative implications for
the facts of the present case which preceded it.
Furthermore,
and in any event, the Court cannot but note certain incongruities in
the Constitutional Court’s case-law relied on by the Government
on the one hand and known to the Court otherwise on the other hand.
In
particular, the Court notes that there appears to be a number of
cases which were admitted by the Constitutional Court for examination
on the merits without the complainants’ having used a complaint
under the Courts Act, one of such cases involving the present
applicant himself (see paragraph 46 above). At the same time, it has
to be noted that the Constitutional Court’s decisions in these
cases contain no analysis of the exhaustion of remedies question. In
particular, they contain nothing to support the Government’s
argument which may be understood as proposing that there are distinct
exhaustion rules in respect of certain categories of
length-of-proceedings cases.
Furthermore
the Court notes the Constitutional Court’s specific
pronouncement that a complaint under the State Administration of
Courts Act was not required prior to a length-of-proceedings claim
before the Constitutional Court. The Court is aware that this
pronouncement was made with reference to the constitutional framework
before the amendment providing for the present complaint under
Article 127 of the Constitution (see paragraph 65 above). However,
the Court observes that no argument has been advanced by the
Government or established in the Constitutional Court’s
case law or otherwise as to why the considerations underlying
that pronouncement should not apply mutatis mutandis in
respect of the otherwise similar complaint under the Courts Act
within the framework of the current Article 127 of the
Constitution.
In
addition, the Court observes that the impugned decision of the
Constitutional Court in the present case (see paragraph 18 above)
concerned proceedings, the length of which had been more than 6 years
over 2 levels of jurisdiction. The Court finds it questionable
wherever, at that stage, a remedy of no more than a preventive
nature would have been adequate for the Convention purposes (see
Cocchiarella, cited above, §§ 74-77).
Finally,
the Court observes that a complaint under the Courts Act is by
definition linked to the court concerned, whereas the Court’s
approach is to examine the overall length of the proceedings (see
Bako, cited above). It is therefore unclear how such
examination could be obtained from the Constitutional Court if the
proceedings in question take place before several courts and the
complaint under the Courts Act is to be brought to the president of
each of those courts.
In
view of the above considerations the Court concludes that the
applicant cannot be reproached under Article 35 § 1 of the
Convention for the way in which he used the remedy under Article 127
of the Constitution in the specific circumstances of his case.
(b) Claim for damages under the State Liability
Act
As
for any remedies under the State Liability Act, the Court reiterates
first of all that where there is a choice of remedies, the exhaustion
requirement must be applied to reflect the practical realities of
an applicant’s position, so as to ensure the effective
protection of the rights and freedoms guaranteed by the Convention.
Moreover, an applicant who has used a remedy which is apparently
effective and sufficient cannot be required also to have tried
others that were available but probably no more likely to be
successful (see Karlin v. Slovakia, no. 41238/05, § 85,
28 June 2011, with further references).
As
has been noted above, in the present case, the applicant sought
protection of his right to a hearing within a reasonable time before
the Constitutional Court under Article 127 of the Constitution.
The
Constitutional Court, as the supreme authority for the protection of
human rights and fundamental freedoms in Slovakia, had jurisdiction
to examine the applicant’s complaint and to afford them
redress if appropriate (see, mutatis mutandis, Lawyer
Partners a.s. v. Slovakia, nos. 54252/07, 3274/08, 3377/08,
3505/08, 3526/08, 3741/08, 3786/08, 3807/08, 3824/08, 15055/08,
29548/08, 29551/08, 29552/08, 29555/08 and 29557/08, § 45, ECHR
2009-..., with further references).
As
the Court has equally acknowledged above, the course of action chosen
by the applicant in this case is normally considered to be effective
for the purposes of the domestic remedies rule under Article 35 §
1 of the Convention. Moreover, there is nothing in the Constitutional
Court’s decision to suggest that the applicant’s
constitutional complaint was not admissible because he had not made
use of the remedy now relied on by the Government.
In
these circumstances, the Court cannot but find that the applicant’s
course of action as to the remedies used was reasonable and
appropriate (see Karlin, cited above, § 88, with further
references).
Furthermore,
and in any event, the Court notes that the Government have not shown
that the remedy under the State Liability Act has ever been used with
success in a situation comparable to that of the applicant.
Accordingly,
the Court finds that the applicant is not required to have had
recourse to the remedy under the State Liability Act, as referred to
by the Government.
4. Conclusion
In
view of the above consideration the Court concludes that the
Government’s preliminary objection of non-exhaustion of
domestic remedies must be dismissed.
The
period to be taken into consideration began on 9 January 2001 and has
not ended yet. It has thus far lasted more than 11 years and 3 months
for three levels of the ordinary courts.
The
Court reiterates that the reasonableness of the length of this period
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, 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 further complained that he had not had at his disposal an
effective remedy in respect of their complaint under Article 6 §
1 of the Convention, contrary to Article 13 of the Convention, 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
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
B. Merits
Referring
to their arguments as mentioned above, the Government argued that the
applicant had had at his disposal remedies under the Courts Act, the
State Liability Act and, ultimately, Article 127 of the Constitution,
which, taken together, were compatible with the requirements of
Article 13 of the Convention.
In
reply, the applicant argued that the only remedy he had had which in
principle was “effective” for the purposes of Article 13
of the Convention was a complaint under Article 127 of the
Constitution and that, on the specific facts of his case this remedy
had failed.
The
Court reiterates that Article 13 of the Convention guarantees the
availability at national level of a remedy to enforce the substance
of the Convention rights and freedoms in whatever form they may
happen to be secured in the domestic legal order. The effect of
Article 13 is thus to require the provision of a domestic remedy to
deal with the substance of an “arguable complaint” under
the Convention and to grant appropriate relief. The effectiveness of
a remedy within the meaning of Article 13 does not depend on the
certainty of a favourable outcome for the applicant. Also, even if a
single remedy does not by itself entirely satisfy the requirements of
Article 13, the aggregate of remedies provided for under domestic law
may do so. It is therefore necessary to determine in each case
whether the means available to litigants in domestic law are
“effective” in the sense either of preventing the alleged
violation or its continuation, or of providing adequate redress for
any violation that has already occurred (see, for example, Sürmeli,
cited above, § 98).
In
the present case, in view of the Court’s finding under
Article 6 § 1 of the Convention (see paragraph
100 above), the complaint under that provision must be considered
“arguable” for the purposes of Article 13 of the
Convention.
The
Court further refers to its finding that the applicant was not
required for the purposes of Article 35 § 1 of the Convention to
assert his rights under the State Liability Act, inter alia,
on the ground that there is no precedent indicating that its use has
been successful in a comparable situation (see paragraphs 94 and 95
above).
Furthermore,
the Court observes that the remedy in question is compensatory in
nature and that there is no indication that it may give rise to an
order for the acceleration of the proceedings.
At
the same time, the Court also notes that the use by the applicant of
the other available remedies has been futile.
It
follows that, in the specific circumstances of the present case, the
applicant did not have an effective remedy in respect of his
complaint about the length of the proceedings.
There
has accordingly been a violation of Article 13, in conjunction with
Article 6 § 1 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 EUR 200 in respect of pecuniary damage allegedly
caused by the defendant of his action to his property and EUR 33,000
in respect of non-pecuniary damage.
The
Government contested the former claim in principle and the latter
claim as to the amount.
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, it awards the applicant EUR 3,000 in respect of
non pecuniary damage, plus any tax that may be chargeable.
B. Costs and expenses
The
applicant also claimed a lump sum of EUR 2,000 for all costs and
expenses.
The
Government contested the claim arguing that the applicant had failed
to support it by any documents.
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 (see, for example, Iatridis v. Greece
(just satisfaction) [GC], no. 31107/96, § 54, ECHR
2000-XI). Furthermore, Rule 60 § 2 of the Rules of Court
provides that itemised particulars of any claim made under Article 41
of the Convention must be submitted, together with the relevant
supporting documents or vouchers, failing which the Court may reject
the claim in whole or in part.
In
the instant case, the Court observes that the applicant has not
substantiated his claim by any relevant supporting documents.
Accordingly, the Court decides not to award any sum under this head.
C. Default interest
The
Court considers it appropriate that the default interest rate 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
Decides by a majority to join to the merits the
Government’s objection as to the exhaustion of domestic
remedies concerning the complaint under the Courts Act;
Declares by a majority the complaint under
Article 6 § 1 of the Convention
concerning the excessive length of the proceedings and the complaint
under Article 13 of the Convention of the lack of an effective
remedy in that respect admissible and the remainder of the
application inadmissible;
Holds by five votes to two that there has been a
violation of Article 6 § 1 of the Convention;
Holds by five votes to two that there has been a
violation of Article 13, in conjunction with Article 6 §
1 of the Convention;
Holds by five votes to two
(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 3,000 (three
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate
equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
Dismisses unanimously the remainder of the
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 12 June 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judges López
Guerra and Gyulumyan is annexed to this judgment.
J.C.M.
S.Q.
DISSENTING OPINION OF JUDGE LÓPEZ GUERRA JOINED
BY JUDGE GYULUMYAN
For
the same reasons as those stated in my
dissenting opinion in the case of Ištván
and Ištvánová v. Slovakia (no.
30189/07), I am unable to support the majority’s conclusion as
to the exhaustion of domestic remedies in the present case.
