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ISTVAN AND ISTVANOVA v. SLOVAKIA - 30189/07 [2012] ECHR 998 (12 June 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/998.html
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[2012] ECHR 998
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THIRD
SECTION
CASE OF
IŠTVÁN AND IŠTVÁNOVÁ v. SLOVAKIA
(Application
no. 30189/07)
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 Ištván and Ištvánová
v. Slovakia,
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. 30189/07) 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 two Slovak nationals, Mr
Ondrej Ištván and Mrs Kristína Ištvánová
(“the applicants”), on 9 July 2007.
In
2010 the applicants died and their daughter, Ms Magdaléna
Turoňová, expressed the wish to continue the
application in their stead. The proceedings are continued with her
although, for practical reasons, unless specifically indicated
otherwise, she will also be referred to as the “applicants”
in the text of this judgment.
The
applicants were represented by Ms I. Rajtáková, a
lawyer practising in Košice.
The
Government of the Slovak Republic (“the Government”) were
represented by Ms M. Pirošíková, their Agent.
On
26 April 2010 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
applicants were born in 1931 and 1933 respectively. They were
a married couple and lived in Košice.
A. Action
On
26 September 2002 the applicants lodged an action with the Košice
I District Court (Okresný súd) against their
daughter’s husband seeking restitution of his share in the
ownership of a flat, which the applicants had donated to the
defendant and their daughter, his wife. They argued that the
defendant had been severely abusing their daughter, both
psychologically and physically, thus behaving wrongly towards her
and, thereby, also themselves.
On
16 January 2003 the applicants requested that a hearing be scheduled.
The District Court did so for 30 October 2003, 13 February, 26 August
and 31 October 2004. It appears that the first of these hearings did
not take place since it had proven impossible to have the summons
served on the defendant. The later hearing was cancelled at the
applicants’ request because there was an application pending
before the Land Registry for correction of the records concerning
title to the property to be restored.
Meanwhile,
the applicants had been ordered to submit evidence (14 May
2004), which they did (28 May 2004). They also submitted further
evidence (9 July and 21 December 2004).
On
24 March 2005 a hearing was held, following which – on
8 April 2005 – the District Court suspended the
proceedings pending the outcome of criminal proceedings, which had
been instituted against the defendant in the meantime.
On
31 May 2005 the Košice Regional Court (Krajský súd)
quashed the decision of 8 April 2005 following an appeal by the
applicants.
On
2 October 2006 the applicants filed a complaint to the president of
the District Court submitting that since 31 May 2005 the District
Court had been completely inactive which, in their view, constituted
delays.
The
president of the District Court replied by a letter dated 23 October
2006 referring to the applicants’ complaint as a “repeated”
complaint and finding it justified. He acknowledged that since 25
July 2005 the judge in charge of the case had not taken any step with
a view to resolving it, and advised the applicants that the judge had
been reminded in writing to proceed with the case without delay.
The
letter of the president of the District Court of 23 October 2006 was
served on the applicants’ representative on 27 October
2006. On the latter date, the applicants challenged the length of the
proceedings by way of a complaint under Article 127 of the
Constitution (Constitutional Law no. 460/1992 Coll., as amended
– Ústava Slovenskej republiky)
to the Constitutional Court (Ústavný súd).
The details are set out in paragraphs 16 to 22 below.
On
1 December 2006 the District Court held a hearing, following which
the applicants were ordered to produce further evidence. They did so
on 18 December 2006.
Further
hearings were held on 21 December 2006 and 12 February 2007
and the District Court allowed the action on the latter date.
The
defendant’s appeal of 11 May 2007 was dismissed by the Regional
Court on 26 February 2009, following a hearing held on the latter
date. It became final and binding on 22 May 2009.
B. Constitutional complaint
The
applicants’ complaint to the Constitutional Court (see
paragraph 12 above) was received by the Constitutional Court on
6 November 2006.
In
their complaint, the applicants submitted that not a single judgment
had been given on their action despite its having been pending for
more than four years and one month. They claimed a violation of their
rights to a hearing without unjustified delay under Article 48 of the
Constitution and Article 6 § 1 of the Convention and the
equivalent of some 2,200 euros (EUR) each in compensation for
non-pecuniary damage.
On
22 November 2006 the Constitutional Court declared the complaint
inadmissible on the ground that the applicants had failed to satisfy
the requirement of exhaustion of remedies under 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).
Referring
to its decisions in cases nos. IV. ÚS 74/05, IV. ÚS
48/06, and II. ÚS 101/06, the Constitutional Court reiterated
that a complaint under section 62(1) of the Courts Act (Law no.
757/2004 Coll., as amended – Zákon o súdoch)
to the president of the court concerned was considered to be a
remedy to be used prior to the lodging of a constitutional complaint
about the length of the proceedings before that court.
The
Constitutional Court further reiterated that the remedy in question
could only be considered as having been duly used if the complainant
had afforded the court in question adequate opportunity to take
measures with a view to remedying and correcting the unlawful
situation caused by its inaction or ineffective action.
Observing
that the applicants’ constitutional complaint had been received
by the Constitutional Court on 6 November 2006, it found that their
complaint to the president of the District Court had only been a
formal step without any effect that it otherwise could have had, had
the president of the District Court been allowed adequate opportunity
to take measures against unjustified delays in the impugned
proceedings.
The
Constitutional Court’s decision was served on the applicants’
lawyer on 10 January 2007.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Constitution (see paragraph 12 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 19 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
2 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 the present application, as well as two 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 the Constitutional Court’s decisions, relied on by the
applicants (see paragraph 47 below), without further elaboration, the
report suggests that they were not comparable and thus relevant to
the applicants’ case 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. Case-law cited by the applicants
The
applicants argued that, in unrelated cases, which had however been
represented by the same lawyer as in the present case, the
Constitutional Court had 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 no. II 243/08 (decision
of 11 June 2009)).
4. 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 29 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
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 VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicants 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
1. Parties’ arguments
(a) Government
The
Government argued that the applicants 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 36 et seq. above)
and advanced two reasons.
First,
the applicants had failed to lodge their 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 22 November 2006 in the applicants’ case (see
paragraphs 18 to 21 above), the applicants could not be considered as
having duly used the remedy under the Courts Act because they had not
afforded the District Court adequate opportunity to remedy the
situation.
Moreover,
the Constitutional Court’s case-law, relied on by the
applicants, was of no consequence because it originated in situations
that were different from that of the applicants.
Second,
the Government were of the view that the applicants should have, but
had not, asserted their 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 applicants’
rights by the Constitutional Court was not a precondition of such a
compensation claim, and the rejection of the applicants’
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 applicants’
constitutional complaint in no way impaired their chances of success
under the State Liability Act.
(b) Applicants
In
reply, the applicants considered the Government’s position
untenable in principle because there was no way of ascertaining what
was to be understood by the “extreme” and
“manifestly disproportionate” length of proceedings (see
paragraph 41 above). There was also no tool for determining what
length of time had to be allowed to the court in question after the
reply of its president to a complaint under the Courts Act before
a complaint could be lodged with the Constitutional Court under
Article 127 of the Constitution in respect of their right a hearing
within a reasonable time.
Furthermore,
the applicants argued that the existing practice of the
Constitutional Court with respect to the requirement of exhaustion of
domestic remedies under section 53 of the Constitutional Court Act
and complaints under the Courts Act was divergent.
As
to the State Liability Act, the applicants submitted that the Act of
2003 had no temporal application to their case, that the Act of 1969
had not allowed for compensation in respect of non-pecuniary damage,
and that – in any event – the Government had failed to
show that either of the Acts had ever been applied in a situation
comparable to theirs.
With
regard to the Constitutional Court’s decision in their very
case, the applicants argued that it was contrary to other decisions
of the Constitutional Court in cases represented by the same lawyer
as in the present case, in which the question of appropriate use of a
complaint under the Courts Act had not been examined at all (see
paragraph 47 above).
Lastly,
the applicants submitted that a complaint under the Courts Act could
not produce any redress in respect of the trauma and stress suffered
by a complainant as a consequence of the length of judicial
proceedings being excessive.
2. 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 (see paragraphs 12 and 24 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 applicants have
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 applicants in the present case made use of
that remedy and that their complaint was rejected without an
examination of its merits on formal grounds, because the applicants
were found not to have afforded the court in question adequate
time to take measures with a view to remedying and correcting
the unlawful situation caused by its inaction or ineffective action
(compare and contrast paragraphs 20 above).
In
particular, they introduced their constitutional complaint
(6 November 2006) directly after receiving an answer from
the president of the District Court (27 October 2006) accepting their
complaint and indicating that corrective measures would be taken. For
this reason their complaint under the Courts Act could only have been
a formal step without any effect that it otherwise could have had
(see paragraphs 12 and 21 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 29 above), has been found not to
be an effective remedy for the purposes of Article 35 §
1 of the Convention (see paragraph 69 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 26 above and also DMD GROUP, a.s.
v. Slovakia, no. 19334/03, §§
40, 41 and 65, 5 October 2010).
At
this juncture the Court further 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 66 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 applicants claimed compensation in respect
of non-pecuniary damage in the amount of EUR 2,200 each (see
paragraph 17 above), that their 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
applicants.
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 36 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 certainly
being 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 by the applicants on the other hand.
In
particular, the Court notes that, in the case-law cited by the
Government, periods ranging from eight days to one month and
twenty-five days between the reply of the president of the court
concerned to a complaint about the length of proceedings and the
introduction of the respective constitutional complaint were not
found to be sufficiently long (see paragraph 45 above), while in the
case-law cited by the applicants periods ranging from sixteen days to
two month and five days were (see paragraph 47 above).
Moreover,
in contrast to the position argued by the Government, and without any
explanation, there appear to be cases where the Constitutional Court
did not examine the question of whether the remedy under the Courts
Act had been used (see paragraph 47 above) and arrived at opposing
conclusions in that respect in situations that were similar (see
paragraphs 48 to 50 above).
In
so far as the Government’s argument has been substantiated, the
Court has found no acceptable justification for this incongruity. It
follows that the applicants’ position as to the exhaustion of
remedies before the Constitutional Court depended on a number of
variables without reliable guidance and predictable outcome, a
position which cannot be considered compatible with the principle of
legal certainty (see, for example, Popov v. Moldova (no. 2),
no. 19960/04, §§ 44-46, 6 December 2005, with further
references) and that, consequently, the applicants cannot be
reproached under Article 35 § 1 of the
Convention for the way in which they used the remedies under the
Courts Act and Article 127 of the Constitution in the specific
circumstances of their 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 applicants sought
protection of their 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 applicants’ 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 applicants 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 applicants’
constitutional complaint was not admissible because they had not made
use of the remedy now relied on by the Government.
In
these circumstances, the Court cannot but find that the applicants’
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 applicants.
Accordingly,
the Court finds that the applicants are 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 26 September 2002
and ended at the earliest on 26 February 2009. It thus lasted at
least six years, five months, and three days for two levels of
jurisdiction.
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 applicants and the relevant authorities and what
was at stake for the applicants 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).
The
Court notes that the Government have admitted that the complaint is
not manifestly ill-founded and have not sought to contest it on the
merits.
Having
examined all the material submitted to it and 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
applicants further complained that they had not had at their 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
applicants had had at their 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.
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 104 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 applicants were not
required for the purposes of Article 35 §
1 of the Convention to assert their 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 97 and 98 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 applicants of
the other available remedies has been futile.
It
follows that, in the specific circumstances of the present case, the
applicants did not have an effective remedy in respect of their
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
applicants made no claim in respect of pecuniary damage. Accordingly,
no ruling is appropriate in that respect.
However,
the applicants claimed EUR 8,268 each in respect of non pecuniary
damage.
The
Government contested that claim as being excessive.
The
Court considers that the applicants must have sustained non pecuniary
damage. Ruling on an equitable basis, it awards EUR 3,250 under that
head, payable to Ms Magdaléna Turoňová, their
daughter (see paragraph 1 above), plus any tax that may be
chargeable.
B. Costs and expenses
The
applicants also claimed EUR 357 for their legal costs before the
domestic courts and EUR 833 for those incurred before the Court. They
submitted that they were not able to support this claim by a bill
because it was only payable upon the conclusion of the proceedings
before the Court.
The
Government contested the claim arguing that the applicants 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 applicants have not
substantiated their claim by any relevant supporting documents
establishing that they were under an obligation to pay for the cost
of legal services or have actually paid for them. 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, and declares
the application admissible;
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 Ms Magdaléna Turoňová,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention EUR 3,250 (three thousand two hundred and fifty 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
applicants’ 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
In
my opinion, the Court should have declared this
application inadmissible based on a failure to exhaust all available
domestic remedies, pursuant to Article 35 of the Convention.
The
effective protection of Convention rights and freedoms depends on the
activity of the domestic authorities, which bear the primary
responsibility for implementing and enforcing them. Our Court’s
role in guaranteeing those rights is, and must necessarily be,
subsidiary to the member States’ domestic systems of
protection. As a result, it is an absolute prerequisite for
applicants to the Strasbourg Court to have previously exhausted all
available domestic remedies.
Accordingly,
and as stated in Article 13 of the Convention, the national
authorities have an obligation to provide the means by which
violations of Convention rights and freedoms should be remedied. As
set forth in our case-law (and duly cited in paragraph 110 of the
present judgment), even if a single remedy does not satisfy this
condition, the aggregate of remedies provided for in domestic law may
do so. Therefore, to verify the applicants’ compliance with the
Article 35 requirement to exhaust all domestic remedies, the Court
must first ascertain whether such a system of domestic remedies
exists, and whether the applicant exhausted them before coming to
Strasbourg.
With respect to the first point, that is, the existence of an
effective remedy in respect of undue delays in the proceedings,
Article 127 of the Slovakian Constitution provides for a complaint to
the Constitutional Court about violations of fundamental rights or
freedoms (which include the right to a trial without undue delay).
Section 53 of the Slovakian Constitutional Court Act determines that
for such a complaint to be entertained by the Constitutional Court,
the applicant must first have exhausted the existing legal remedies.
And in that regard, sections 62 and 63 of the Slovakian Courts Act
specifically provide that complaints about unjustified delays should
be brought before and heard by the president of the lower court in
question, in order to rectify any shortcomings that may be found.
In
view of these provisions, the Slovakian Constitutional Court was
correct in ruling that a party must first address his complaint
concerning undue delays to the president of the court that is hearing
the relevant case, so that the court may rectify any shortcomings;
and, if the complaint is not dealt with adequately, the party may
then lodge a complaint with the Constitutional Court. In that way,
the competent court will have the opportunity to preventively correct
the undue delay, while the Constitutional Court’s role is thus
limited to acting only as a final guarantee in this preventive system
or, if warranted, in a compensatory manner. This prerequisite of
complaining to the president of the competent lower court avoids
undue recourse to the Constitutional Court, as well as even further
delays in the proceedings. Of course for the recourse to the
president of the competent court to be effective, that court must be
provided with a reasonable time-frame in which to remedy the
alleged undue delays. When provided with adequate time, this system
does indeed provide an effective remedy in respect of complaints
arising from undue delays.
Against
the position adopted by the Slovakian Constitutional Court, the
present judgment, from which I dissent, does not deem the requisite
prior complaint to the president of the competent court to be a
remedy that must be exhausted before taking a case to the
Constitutional Court, despite its being deemed a remedy in the
Slovakian Courts Act. The consequences of the Strasbourg Court’s
interpretation are twofold: running counter to Slovakian legislation,
it deprives the ordinary courts of the possibility of remedying their
own excessive delays by expediting their proceedings, and it imposes
a burden on the Constitutional Court to directly decide all cases
involving undue delays which the competent courts have been denied
the power to examine.
As
to whether the applicants did indeed exhaust the existing domestic
remedies, the applicants submitted their complaint concerning the
excessive length of the proceedings to the President of the District
Court on 2 October 2006 and received the President’s response
on 27 October, indicating that he had already ordered the competent
judge to proceed with the case without further delay. However, on
that same day the applicants proceeded to file an additional
complaint for undue delays with the Constitutional Court.
It
is therefore clear that the applicants did not allow the competent
court a reasonable time-frame in which to remedy the alleged delays
before taking their case to the Constitutional Court and, as a
consequence, the Constitutional Court rightly declared their claim
inadmissible. In such circumstances, the applicants’ merely
formal complaint to the President of the District Court cannot be
deemed to have exhausted the available domestic remedies before their
application to this Court.
Moreover, the facts of the case clearly show that the applicants were
indeed provided with an effective remedy in respect of the alleged
delays since, as a consequence of their complaint to the President of
the District Court, the proceedings were expedited and the hearings
in their case resumed less than two months after that complaint was
filed.
