European Court of Human Rights

 

 

 

THIRD SECTION

 

 

 

 

 

 

CASE OF ENGELHARDT v. SLOVAKIA

 

(Application no. 12085/16)

 

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

 

31 August 2018

 

 

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 Engelhardt v. Slovakia,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

          Helena Jäderblom, President,
          Branko Lubarda,
          Helen Keller,
          Pere Pastor Vilanova,
          Alena Poláčková,
          Georgios A. Serghides,
          María Elósegui, judges,
and Fatoş Aracı , Deputy Section Registrar,

Having deliberated in private on 12 June 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 12085/16) 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 Czech national, Mr Július Engelhardt (“the applicant”), on 26 February 2016.

2.  The applicant was represented by Ms A. Orthov á , a lawyer practising in Bratislava. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Piro šíková .

3.  The applicant alleged, in particular, that his restitution claim had not been decided upon within a reasonable time and that he had had no effective remedy at his disposal in that respect, in violation of his rights under Article 6 § 1 and Article 13 of the Convention.

4.  On 17 May 2016 t he above complaints were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. At the same time, the Government of the Czech Republic were invited to intervene as a third party (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), in response to which they submitted that they saw no particular reasons for so doing.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1969 and lives in B í lovice nad Svitavou (the Czech Republic).

A.  Restitution proceedings

6.  On 30 December 1992 the applicant’s legal predecessor and two others applied to the Bratislava Land Office for the restitution of some plots of land under the Land Ownership Act of 1991. The date on which the applicant subsequently became a party to the proceedings is not specified.

7.  On 23 June 1997 the Land Office issued a decision approving an agreement whereby the proceedings would end in relation to part of the property but continue in relation to the remainder.

8.  By a decision of the Land Office of 17 May 1999, the proceedings in respect of another part of the property ended. However, on 23 May 2003 the relevant part of the proceedings was reopened.

9.  On 12 July 2013 the Land Office stayed the restitution proceedings on the grounds that the parties had failed to furnish it with their consent to process, in the course of the proceedings, their personal data.

10.  On 11 September 2015 the Land Office dismissed part of what was left of the applicant’s claim.

11.  On 19 October 2015 the Land Office stayed the examination of the remainder of the claim, inviting a number of institutions to submit relevant documentation, which they did by the end of 2015.

12.  The remainder of the applicant’s claim is still pending.

B.  Attempts to have the restitution proceedings accelerated

13.  Following repeated requests for acceleration of the proceedings and complaints, on 18 June 2011 the Bratislava Regional Land Office acknowledged that there had been unjustified delays in the proceedings before the District Land Office.

14.  On 20 December 2011 the applicant brought an action in the Bratislava Regional Court for acceleration of the proceedings under Article 250t § 1 of the Code of Civil Procedure (“the CCP”).

15.  On 19 April 2012 the Regional Court dismissed the action on the grounds that the Land Office was short of staff and overburdened with complex and time-consuming restitution claims. It also noted that the Land Office had maintained active correspondence with the applicant and had therefore not caused any undue delays.

16.  The decision of 19 April 2012 was quashed by the Constitutional Court following the applicant’s constitutional complaint (see paragraph 22 below). This led to re-examination of the case by the Regional Court, which decided on 11 April 2013 to allow the action and to order the Land Office to decide on the applicant’s claim within sixty days.

17.  On 12 November 2013, in response to a complaint lodged by the applicant, the Bratislava II District Office of the Public Prosecution Service (“the PPS”) informed him that the PPS had reprimanded the Land Office for unjustified delays in the restitution proceedings.

18.  On 21 August 2014 the applicant lodged a fresh action with the Regional Court under Article 250t § 1 of the CCP, arguing that the Land Office had failed to abide by the order of 11 April 2013.

19.  On 27 May 2015 the Regional Court allowed the action, issuing a fresh order to the Land Office to decide on the matter within three months. At the same time, it fined it 1,000 euros (EUR) payable to the account of the Regional Court.

C.  Constitutional proceedings

20.  On 4 July 2012 the applicant lodged two constitutional complaints.

21.  The first complaint was directed against the Land Office, in particular at the length of the proceedings on his restitution claim before it.

On 23 August 2012 the Constitutional Court rejected that complaint for lack of jurisdiction to examine it.

The Constitutional Court noted that under Article 250t § 1 of the CCP examination of delays in proceedings before administrative authorities fell within the jurisdiction of administrative tribunals, which excluded the jurisdiction of the Constitutional Court. Accordingly, as the administrative proceedings were still pending, the applicant should have lodged a fresh complaint about the alleged inactivity of the Land Office with the Regional Court. Even though the applicant had already been unsuccessful in using such a remedy, the Regional Court continued to have jurisdiction over actions of that type.

22.  The second complaint was directed against the Regional Court. The applicant contested, inter alia , the fairness of the proceedings leading to its decision of 19 April 2012 (see paragraph 15 above).

In a constitutional judgment of 16 January 2013, the Constitutional Court allowed the relevant part of the applicant’s complaint and found a violation of his right to a fair hearing. It held, in particular, that the Regional Court had failed to take account of relevant aspects of the case and to give adequate reasoning in respect of them. Accordingly, it quashed the Regional Court’s decision of 19 April 2012 and remitted the applicant’s action of 20 December 2011 to the Regional Court for fresh examination. Moreover, it awarded the applicant EUR 2,000 in respect of non-pecuniary damage.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

A.  Constitution (Constitutional Law no. 460/1992 Coll., as amended)

23.  The relevant part of Article 48 § 2 provides:

“Everyone shall have the right to have his matter ... heard without undue delay ...”

24.  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 award appropriate financial compensation to the person whose rights under paragraph 1 have been violated.”

B.  Constitutional Court Act (Law no. 38/1993 Coll., as amended)

25.  The relevant part of section 53 reads:

“1.  A[n] [individual] complaint [under Article 127 of the Constitution] 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 subsection 1 has not been fulfilled, if the complainant establishes that [he or she] has not fulfilled this condition for reasons worthy of particular consideration.”

C.  Statement of the Vice-President of the Constitutional Court

26.  On 15 June 2016 the Vice-President of the Constitutional Court issued a written statement in response to a request by the Government Agent concerning the admissibility and merits of the present case. He stated that he leaned towards the Constitutional Court’s decision in the present case. In particular, he noted that jurisdiction to deal with alleged delays in administrative proceedings was vested with administrative tribunals under Article 250t of the CCP. This excluded jurisdiction of the Constitutional Court in relation to the length of administrative proceedings as such. However, if an administrative tribunal’s decision concerning the length of administrative proceedings was considered to be arbitrary, the Constitutional Court could still review it under Article 127 of the Constitution for compliance with the requirement of fairness. The result of that review in the present case had been the finding of a violation of the applicant’s right to a fair hearing and an award of damages. Moreover, as an action under Article 250t of the CCP had no compensatory effect, it could have been complemented by compensation claims under the State Liability Act.

D.  Code of Civil Procedure

27.  At the relevant time, the rules of procedure for the administrative judiciary were embodied in the 1963 Code of Civil Procedure (Law no. 99/1963 Coll., as amended), in particular its Chapter ( Časť ) 5. Under those rules, by virtue of an amendment that entered into force on 1 January 2003 administrative tribunals had jurisdiction, inter alia , to examine complaints concerning inactivity of public administrative authorities (Section ( Hlava ) 4 - konanie proti ne č innosti orgánu verejnej správy ).

28.  Under Article 250t § 1, any natural or legal person alleging that a public administrative authority was not dealing with a matter in a timely fashion, in breach of the law and without a weighty reason, could apply to an administrative tribunal for an order instructing the authority concerned to proceed with the matter and to decide on it. However, such a remedy could be pursued only after the exhaustion of all ordinary remedies available, in accordance with the relevant legislation.

29.  If an action under Article 250t § 1 was to be allowed, under paragraph 4 of that Article the administrative tribunal would define an appropriate time-limit, not longer than three months, within which the defendant authority had to take a decision. This time-limit could be extended at the request of the authority concerned.

30.  In the event of failure by the authority in question to abide by the time-limit, subject to a repeated request by the party concerned, the administrative tribunal had the power to impose, even repeatedly, a fine of up to 3,280 euros (EUR) on that authority (Article 250u).

E.  State Liability Act

31.  State liability for damage is regulated by the State Liability Act (Law no. 514/2003 Coll., as amended). Its section 3(1)(d) provides that the State is liable for damage which has been caused by maladministration ( nesprávny úradný postup ).

32.  Section 9, which deals with compensation for damage caused by maladministration, provides:

“1. The State shall be liable for damage caused by maladministration. Maladministration 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 the rights and legally recognised interests of individuals and legal entities.

2.  The right to compensation for damage caused by maladministration is vested in the person who sustained the damage.”

33.  Section 17 defines the manner and extent of compensation for damage. It provides in its relevant part:

“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.”

F.  Practice in respect of actions brought under the State Liability Act

34.  In a judgment of 12 November 2013 the Bratislava Regional Court examined appeal no. 5Co 152/2013 in a case, at the heart of which was the length of administrative proceedings for the issuance of a construction permit.

35.  Following an action brought on 19 March 2004 under Article 250t § 1 of the CCP by the person seeking the permit (“the builder”), the Žilina Regional Court issued a decision on 24 January 2008 finding that there had been unjustified delays in the administrative proceedings and ordering the planning authority to proceed and decide on the matter within thirty days.

36.  Relying on that judgment, the builder argued that the unjustified delays in the administrative proceedings amounted to maladministration within the meaning of section 9 of the State Liability Act. At the same time, he pointed out that it had taken more than three years and ten months for his action under Article 250t § 1 of the CCP to be determined, and argued that the length of the proceedings on that action alone amounted to maladministration.

37.  In the aforementioned judgment of 12 November 2013 the Bratislava Regional Court upheld the first-instance judgment dismissing those claims. In doing so, it fully endorsed the conclusions of the first-instance court, including that:

-    in view of all the circumstances, including the judgment 24 January 2008, there had been maladministration on the part of the planning authority;

-    no financial compensation in respect of non-pecuniary damage caused by that maladministration was in place since the proceedings in respect of the construction permit were still pending and the planning authority could still redress any non-pecuniary damage sustained by the builder by issuing the construction permit he was seeking;

-    although the proceedings in the action under Article 250t § 1 of the CCP had lasted nearly four years, there were no statutory time-limits for their completion. Accordingly there could not have been any maladministration on account of their length. Moreover, the builder could have challenged their length by way of a complaint under Article 127 of the Constitution, which excluded jurisdiction of the ordinary courts in the matter under the State Liability Act;

-    furthermore, as the administrative tribunal dealing with the builder’s action under Article 250t § 1 of the CCP had no power to deal with the merits of his request for a construction permit, and as he had failed to seek judicial enforcement of the decision of 24 January 2008, the State was not liable for any non-pecuniary damage allegedly caused by the length of the proceedings in the action under Article 250t § 1 of the CCP.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION, ALONE AND IN CONJUNCTION WITH ARTICLE 13 OF THE CONVENTION

38.  The applicant complained that the length of the proceedings on his restitution claim had been excessive and that he had had no effective remedy at his disposal in that respect, contrary to the requirements of Article 6 § 1 and Article 13 of the Convention.

The relevant part of Article 6 § 1 provides:

“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

Article 13 provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A.  Admissibility

1.  The parties’ submissions

39.  As to the complaint under Article 6 § 1 of the Convention, the Government pointed out that in its judgment of 16 January 2013 the Constitutional Court had found a violation of the applicant’s rights and awarded him EUR 2,000 in damages. Moreover, that judgment had led to a re-examination of the applicant’s first complaint under Article 250t § 1 of the CCP, which had eventually ended with the decision of 11 April 2013 recognising that there had been unjustified delays in the administrative proceedings and ordering their acceleration (see paragraphs 16 and 22 above). The Government argued that, in the light of those compensatory and preventive measures, the applicant had lost his status as a victim of a violation of his right to a hearing within a reasonable time in relation to the part of the administrative proceedings preceding the decision of 11 April 2013.

40.  As for the subsequent period, the Government pointed out that the applicant had repeatedly sought acceleration of the administrative proceedings by way of an action under Article 250t § 1 of the CCP. They considered that the fact that that action had been allowed, as had ultimately been his first action under that provision, was a demonstration of its effectiveness. In their view, therefore, the applicant should have resorted to that remedy anew. Relying on the judgment of the Bratislava Regional Court in an unrelated case (see paragraphs 34 et seq. above), the Government further argued that the applicant could have sought compensation for the length of the administrative proceedings by way of an action under the State Liability Act. Lastly, they pointed out that, subject to the subsidiarity principle, the protection of the applicant’s fundamental rights remained within the jurisdiction of the Constitutional Court under Article 127 of the Constitution. They concluded that, as regards that period, by not having made use of those avenues, the applicant had failed to satisfy the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convection.

41.  Other than that, the Government accepted that the complaint concerning the length of the proceedings was not manifestly ill-founded, although the subject-matter was complex and the applicant had had to be repeatedly asked for further clarifications regarding his claim.

42.  In relation to the applicant’s complaint under Article 13 of the Convention, the Government referred to the remedies at his disposal as mentioned above, arguing that they comprised preventive as well as compensatory elements, the aggregate of which met the requirements of Article 13 of the Convention. In support of their argument, they pointed out that in Csepyová v. Slovakia ((dec.), no. 67199/01, 8 April 2003), the Court had already accepted an action for acceleration of administrative proceedings under Part 5 of the CCP to be an effective remedy for the purposes of Article 35 § 1 of the Convention.

43.  The applicant disagreed and maintained his complaints. He submitted, in particular, that despite two judicial orders under Article 250t of the CCP, there had been no actual acceleration of the administrative proceedings in question. Resorting to that remedy for the third time would have had no better chances of genuine success. In response to his second action under Article 250t of the CCP, the Regional Court had imposed a fine on the Land Office, but in the absence of any accelerating effect this had had no benefit for him since the fine had not been payable to him but to the State. The constitutional judgment in his favour had not been concerned with the alleged violation of his right to a hearing within a reasonable time by the Land Office, as complained of in the present case, but with the violation of his right to a fair hearing by the Regional Court. On a careful reading, the precedent relied on by the Government (see paragraphs 34 et seq. and 40 above) actually disproved the effectiveness of the remedy under the State Liability Act. It was true that the domestic law had enabled him repeatedly to use various remedies, but the reality was that the domestic courts dealing with those remedies were not capable of actually resolving his problem. Lastly, in so far as the Government could be understood as attaching some responsibility for the length of the proceedings to his procedural behaviour, the applicant strongly denied any such responsibility.

2.  The Court’s assessment

44.  The Court notes first of all that the applicant’s standing to pursue the present application in relation to the proceedings from their beginning and the applicability of Article 6 § 1 of the Convention to these proceedings have not been disputed. It further notes that the applicability of Article 6 § 1 of the Convention has been established by the Court in a similar context (see Csepyová , cited above, and Schmidtová v. the Czech Republic , no. 48568/99, §§ 54-57, 22 July 2003).

(a)  Victim status

45.  The Court will first examine the Government’s objection under Article 34 of the Convention. It reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive the applicant of his or her status as a “victim” within the meaning of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Rosselet-Christ v. Slovakia , no. 25329/05, § 49, 26 October 2010, with further references).

46.  In the present case, the unjustified delays in the applicant’s proceedings have been acknowledged on several occasions by the Bratislava Regional Land Office, the Regional Court, as well as the PPS (see paragraphs 13, 16, 17 and 19 above). On the substance, this may be seen as tantamount to an acknowledgment of a violation of his right to a hearing within a reasonable time. On that presumption, the issue to be addressed next is whether any redress the applicant was afforded at the national level was appropriate and sufficient.

47.  At this stage the Court notes that the Constitutional Court awarded the applicant compensation based on its finding of a violation of his right to a fair hearing by the Regional Court, whereas the present application is concerned with an alleged violation of his right to a hearing within a reasonable time by the Land Office. It may therefore be questioned whether the award by the Constitutional Court is at all relevant for the applicant’s victim status in relation to his length-of-proceedings complaint. The Court, however, does not consider it necessary to resolve that question because, even assuming that the constitutional award is of such relevance, for reasons explained below it was not sufficient.

48.  When determining such an issue, the Court has regard to its own practice in similar cases. This does not imply that in a situation where the domestic authorities award a sum to the applicant with a view to redressing the breach found, such sum must correspond to an award granted by the Court. Rather, the issue must be determined in the light of all the relevant circumstances, including the nature of the breach and the way and speediness with which it was established by the domestic authorities, whose responsibility it is in the first place to ensure respect for rights and freedoms guaranteed by the Convention. The level of just satisfaction granted at national level must nevertheless not be manifestly inadequate in the particular circumstances of the case (see Cocchiarella v. Italy [GC], no. 64886/01, §§ 65-107, ECHR 2006-V; Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 178-213, ECHR 2006-V; and Becová v. Slovakia (dec.), no. 23788/06, 18 September 2007).

49.  In the present case the Constitutional Court’s judgment of 16 January 2013 led to the re-examination of the applicant’s first action under Article 250t of the CCP, which ultimately resulted in a judicial order of 11 April 2013 for acceleration of the restitution proceedings. As those proceedings are still pending, the order cannot be seen as having had any preventive effect.

50.  In the same judgment, the Constitutional Court awarded the applicant EUR 2,000 in the context of his efforts to have his restitution case resolved within a reasonable time. It did so at a time when the length of the restitution proceedings had been more than twenty years for a single level of examination by the Land Office. That level of compensation cannot be seen as commensurate with that awarded in similar cases under Article 41 of the Convention.

51.  The redress afforded to the applicant by the Constitutional Court or as a result of its judgment therefore cannot be seen as sufficient. The Government’s inadmissibility objection under Article 34 of the Convention made with reference to that judgment must therefore be dismissed.

(b)  Exhaustion of domestic remedies

52.  As to the Government’s objection of non-exhaustion of domestic remedies, the Court reiterates that 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. The rule in Article 35 § 1 is based on the assumption, reflected in Article 13 (with which it has a close affinity), that there is an effective domestic remedy available in respect of the alleged breach of an individual’s Convention rights (see, for example, Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000-XI, with further references).

53.  In view of the closely interconnected nature of the Government’s non-exhaustion plea with regard to the complaint under Article 6 § 1 of the Convention and considerations as to the merits of the applicant’s complaint under Article 13 of the Convention, the Court considers that this objection should be joined to the merits of the complaint under the latter provision (see Antoni v. the Czech Republic , no. 18010/06, § 26, 25 November 2010).

(c)  Remaining aspects

54.  The period to be taken into consideration for the purposes of Article 6 § 1 of the Convention began on 30 December 1992 and has not yet ended. It has thus lasted more than twenty-five years for a single level of administrative jurisdiction.

55.  The Court notes that the length-of-proceedings complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. For similar reasons, it finds the complaint arguable for the purposes of Article 13 of the Convention (see Boyle and Rice v. the United Kingdom , 27 April 1988, § 52, Series A no. 131).

The application must therefore be declared admissible.

B.  Merits

56.  The parties have advanced no arguments in relation to the merits other than those already mentioned above.

1.  Article 13 in conjunction with Article 6 § 1 of the Convention

57.  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 scope of the Contracting States’ obligations under Article 13 varies depending on the nature of the applicant’s complaint; however, the remedy required by Article 13 must be “effective” in practice as well as in law. The “effectiveness” of a “remedy” within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant. Nor does the “authority” referred to in that provision necessarily have to be a judicial authority; but if it is not, its powers and the guarantees which it affords are relevant in determining whether the remedy before it is effective. 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 (see Kudła , cited above, § 157).

58.  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).

While a preventive measure is preferable, if a length-of-proceedings violation has already occurred, a remedy designed only to expedite the proceedings may not be adequate, and compensation or another form of redress may be called for (see Cocchiarella , cited above, §§ 74-77).

59.  In the present case, in relation to the length of the administrative proceedings in question, the applicant had at his disposal a set of remedies consisting of an action before an administrative tribunal for acceleration of the administrative proceedings under Article 250t of the CCP, an action before a general court for damages under the State Liability Act, and a complaint before the Constitutional Court under Article 127 of the Constitution.

60.  Although the remedies under Article 250t of the CCP and the State Liability Act have been a part of the Slovakian legal order for quite some time, they appear to have been scarcely used in practice. The applicant’s own experience with the use of the former accordingly plays a direct role in the assessment of its effectiveness, alone and in conjunction with the other remedies.

61.  In particular, the applicant has made repeated use of the remedy under Article 250t of the CCP. However, as has already been noted above, although his actions as such have ultimately been allowed, they have had no preventive effect. Other known examples indicate that proceedings under Article 250t of the CCP may themselves take a considerable time (see paragraph 35 above).

62.  In its decision in Csepyová (cited above) the Court accepted an action for acceleration of administrative proceedings under Part 5 of the CCP as an effective remedy for the purposes of Article 35 § 1 of the Convention. However, and unlike in Csepyová, at the time relevant for the present application, the remedy in question had already existed for a long time and the Court has noted the absence of established practice demonstrating its effectiveness - indeed, there are examples of its failure, including the case of the applicant.

63.  The Court further notes, and it has not been in dispute between the parties, that an action under Article 250t § 1 of the CCP has no compensatory potential.

64.  As to the possibilities for obtaining compensation for the allegedly excessive length of the applicant’s proceedings, the Government have argued, relying on a judgment of the Bratislava Regional Court of 12 November 2013 (see paragraphs 34 et seq. and 40 above), that a claim to that effect could be pursued under the State Liability Act on the basis of a finding of unjustified delays in the underlying administrative proceedings by an administrative tribunal in response to an action brought under Article 250t of the CCP.

65.  In that connection, however, the Court notes that in the very judgment relied on by the Government, the Bratislava Regional Court endorsed the view that there was no room under the State Liability Act for a claim for compensation in respect of non-pecuniary damage allegedly caused by excessive length of the underlying administrative proceedings, because it was still open to the administrative authority being sued for damages before the Regional Court to grant the claim that the plaintiff was pursuing in those administrative proceedings. The Court considers that in such circumstances it cannot be said that a compensatory remedy existed in respect of length of the proceedings.

66.  As regards the jurisdiction of the Constitutional Court, the Court observes that pursuant to Article 127 of the Constitution and section 53 of the Constitutional Court Act (see paragraphs 24 and 25 above), it is based on the principle of subsidiarity. In correlation with the remedy under Article 250t § 1 of the CCP, this means in practice that a review by the Constitutional Court is limited to the proceedings before the administrative tribunal and its decision, but does not extend to the underlying administrative proceedings as such (see paragraph 21 above).

67.  As to the Constitutional Court’s jurisdiction in relation to the remedy under the State Liability Act, the Court finds it noteworthy that, although the applicant in the present case had made no use of such a remedy prior to lodging a constitutional complaint, in its decision of 23 August 2012 the Constitutional Court did not reproach him on that account for failing to exhaust remedies on that account, as required under section 53 of the Constitutional Court Act. Similarly, there is no explanation of the relationship between the remedy under the State Liability Act and a complaint under Article 127 of the Constitution in the statement of the Vice-President of the Constitutional Court (see paragraph 26 above). It thus remains the case that the functional relationship between the remedy under the State Liability Act and that under Article 127 of the Constitution is equivocal (see, mutatis mutandis , Horváth v. Slovakia , no. 5515/09, §§ 74 and 75, 27 November 2012).

68.  In so far as the applicant in the present case has obtained any compensation from the Constitutional Court, and even if such compensation were to be of relevance in relation to his complaint before the Court, as has already been established above, it was manifestly insufficient.

69.  In sum, the applicant’s use of the remedy aimed at acceleration of the proceedings has had no preventive effect, the compensatory remedy has been insufficient, and the relationship between the components of the remedial mechanism at his disposal was ambiguous. Moreover, the Court observes that the cumulation of the various remedies, in particular in relation to the problem of length of proceedings, creates the potential for multiplication of judicial proceedings which, by its nature, raises general doubts about such a system’s overall effectiveness.

70.  In view of these considerations, and to the extent that the Government’s argument has been substantiated, the Court finds the sum of remedies proposed by them in relation to the length of the applicant’s restitution proceedings ineffective for the purposes of Article 13 of the Convention.

71.  There has accordingly been a violation of Article 13, in conjunction with Article 6 § 1 of the Convention, and the Government’s non-exhaustion objection in relation to the applicant’s complaint under the latter provision must be dismissed.

2.  Article 6 § 1 of the Convention

72.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities, and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

73.  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).

74.  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.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

75.  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

76.  The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage.

77.  The Government contested the claim for being excessive.

78.  The Court awards the applicant EUR 25,350, plus any tax that may be chargeable, in respect of non-pecuniary damage.

B.  Costs and expenses

79.  The applicant has made no claim under this head. Accordingly, the Court finds no need for any award in respect of it.

C.  Default interest

80.  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

1.   Joins , unanimously, to the merits of the complaint under Article 13 of the Convention the Government’s non-exhaustion objection in relation to the complaint under Article 6 § 1 of the Convention and rejects it;

 

2.   Declares , unanimously, the application admissible;

 

3.   Holds , unanimously, that there has been a violation of Article 13, in conjunction with Article 6 § 1 of the Convention;

 

4.   Holds , unanimously, that there has been a violation of Article 6 § 1 of the Convention;

 

5.   Holds , by four votes to three,

(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 25,350 (twenty-five thousand three 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;

 

6.   Dismisses , unanimously, the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 31 August 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

     Fatoş Aracı                                                                      Helena Jäderblom
Deputy 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 Jäderblom, Lubarda and Poláčková is annexed to this judgment.

H.J.
F.A.






PARTLY DISSENTING OPINION OF JUDGE POLÁČKOVÁ JOINED BY JUDGES JÄDERBLOM AND LUBARDA

To our regret, we have been unable to vote with the majority on the question of the amount of just satisfaction awarded in respect of non-pecuniary damage in this case and in the case of Balogh and Others v. Slovakia (no. 35142/15).

 

Both cases are essentially the same in that they involve an aspect that is purely individual (the length of the applicants’ proceedings from the point of view of Article 6 § 1 of the Convention) and an aspect that has additional systemic features (the lack of an effective remedy from the point of view of Article 13 of the Convention).

 

Under Article 41 of the Convention, subject to other conditions, the Court affords just satisfaction to the injured party “if necessary”.

 

In our opinion, the systemic aspect of both cases is sufficiently addressed by the finding of a violation. We therefore consider the amount awarded in just satisfaction unnecessarily high, both in absolute and relative terms.