CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 18 mai 2010

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SLOVAKIA (No. 4)   (Application no. 26456/06)                 JUDGMENT     STRASBOURG   18 May 2010   FINAL   18/08/2010   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Bíro v. Slovakia (no. 4), The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Nicolas Bratza, President,   Lech Garlicki,   Ljiljana Mijović,   David Thór Björgvinsson,   Ján Šikuta,   Päivi Hirvelä,   Mihai Poalelungi, judges, and Lawrence Early, Section Registrar , Having deliberated in private on 27 April 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 26456/06) against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovak national, Mr Dušan Bíro (“the applicant”), on 26   June 2006. 2.     The Slovak Government (“the Government”) were represented by their Agent, Mrs M. Pirošíková. 3.     On 8 July 2009 the President of the Fourth Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article   29   §   3). THE FACTS THE CIRCUMSTANCES OF THE CASE 4.     The applicant was born in 1951 and lives in Bratislava. A.     Proceedings concerning the applicant's action of 2003 5.     On 14 and 18 November 2003 the applicant lodged an action for damages against the Bratislava II District Labour Office. Originally his two identical submissions were given two file numbers and were assigned to two judges. As from 16 December 2003 they were dealt with together by one judge under one file number. 6.     The Bratislava II District Court and the Bratislava Regional Court examined a number of procedural issues. The applicant repeatedly modified his action, requested that the Ministry of Labour and the Ministry of Justice join the proceedings as defendants, challenged the lack of impartiality of a   judge, requested that the District Court exempt him from the obligation to pay court fees and appoint a legal-aid lawyer to represent him in the proceedings. 7.     On 6 August 2008 the applicant informed the District Court that his legal-aid lawyer had died. 8.     On 27 November 2008 the District Court dismissed a part of the applicant's claim and discontinued the proceedings in respect of the remaining part. 9.     On 7 January 2009 the mail with the above judgment sent to the applicant's lawyer was returned to the District Court. The postal delivery report indicated that the lawyer had not collected the mail. 10.     The stamp on the judgment indicates that the latter became final on 23   January 2009. 11.     Following the applicant's request, the judgment was served on him on 19 May 2009. He appealed on 1 June 2009. The proceedings are pending. B.     Constitutional proceedings 12.     On 10 May 2006 the Constitutional Court declared the applicant's length of proceedings complaint inadmissible for non-exhaustion of domestic remedies, concluding that the applicant had not complained thereof to the President of the District Court. The complaint about the assignment of the applicant's case to another District Court judge in 2003 was declared inadmissible as being manifestly ill-founded. 13.     On 7 February 2008 his second complaint was declared inadmissible as being manifestly ill-founded. The Constitutional Court acknowledged that there had been a short period of inactivity in 2004 but stated that this fact did not warrant the conclusion that the length of the proceedings had been excessive. It held that the applicant's conduct had notably contributed to their duration and due to his actions the District Court had been prevented from proceeding with the case. It further rejected the complaint about the assignment of the case to another judge as being manifestly ill-founded. 14.     On 4 November 2008 the Constitutional Court rejected a third length of proceedings complaint on the ground that it concerned the matter already examined on 7 February 2008. It held that the period of several months that had elapsed was too short to examine the complaint. It also noted that that conclusion did not prevent the Constitutional Court from examining the applicant's fresh complaint in the future. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION IN RESPECT OF THE LENGTH OF THE PROCEEDINGS 15.     The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” A.     Admissibility 16.     The Government argued that the overall duration of the proceedings had not been unreasonable within the meaning of Article 6 § 1 of the Convention. They also stated that the applicant should have lodged a fresh constitutional complaint as regards the period subsequent to the Constitutional Court's decision of 4 November 2008. 17.     The applicant reiterated his complaint. 18. The Court notes that at the time of the Constitutional Court's decision of 4 November 2008 the proceedings had been pending for almost five years. It also notes that, during that period, several procedural issues were examined by the Regional Court for a few months. On 7 February 2008 the Constitutional Court concluded that the period of the District Court's proceedings had not been excessive and on 4 November 2008 it rejected another complaint of the applicant as being essentially the same. Those decisions did not produce effects which would have allowed the Court to conclude that the applicant had lost his status as a victim within the meaning of Article 34 of the Convention. Since the applicant was unable to obtain redress before the Constitutional Court in respect of a substantial part of the proceedings, the Court concludes that, as regards the period of the proceedings following the Constitutional Court's decision of 4 November 2008, he was not required to repeatedly seek redress before the Constitutional Court as suggested by the Government (see also Becová v. Slovakia (dec.), no. 23788/06, 18   September 2007 and Dudičová v. Slovakia , no. 15592/03, § 65, 8 January 2009). 19.     The applicant lodged the civil action on 14 November 2003 and the proceedings have not yet ended. It follows that the period under the Court's consideration has lasted more than six years and three months at two levels of jurisdiction. 20.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 21.     The Government agreed with the Constitutional Court's decision of 7 February 2008 in that there had been no delays in the proceedings. In their view, the applicant's conduct contributed to the length of the proceedings in that he had lodged an unclear action which had been modified on a number of occasions. They argued that a single delay did not change that position. 22.     The applicant disagreed. 23.     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). 24.     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). 25.     The Court accepts the Government's argument that the applicant's conduct had contributed to the length of the proceedings in the present case. That fact, however, cannot justify the overall duration of the proceedings of more than six years at two levels of jurisdiction. Having examined all the materials submitted to it and having regard to its case-law on the subject, the Court considers that the length of the proceedings has been excessive and has failed to meet the “reasonable time” requirement. There has accordingly been a violation of Article 6 § 1. II.     REMAINING COMPLAINTS RAISED UNDER ARTICLES 3, 6, 14 AND 17 OF THE CONVENTION 26.     Under Article 6 § 1 the applicant complained that in 2003 the file had been assigned to another judge and that he had never been informed about the reason. He also complained that, as the judgment of 27   November   2008 had not been served on him, he was prevented from appealing against it. The applicant also invoked Articles 3, 14 and 17 and argued that, in comparison with other individuals, the courts had not dealt speedily with his case. He also complained that the courts had proceeded in an unfair manner. 27.     However, in the light of all the materials in its possession, and in so far as the matters complained of are within its competence or have not already been addressed in the context of the above finding of a breach of Article 6 § 1 of the Convention, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. III.   ALLEGED VIOLATION OF   ARTICLE 13 OF THE CONVENTION 28.     Lastly, the applicant complained that he had no effective remedy at his disposal within the meaning of Article 13 of the Convention which provides that: “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 length of the proceedings 29.     The Government argued that the applicant had at his disposal an effective remedy, namely a complaint under Article 127 of the Constitution. 30.     The applicant reiterated his complaint. 31.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. The remaining complaints 32.     As regards the alleged absence of an effective remedy in respect of the remaining complaints, the Court reiterates that Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom , judgment of 27 April 1988, Series   A no.   131, § 52). The Court found those complaints inadmissible. Accordingly, the applicant did not have an “arguable claim” and Article 13 is, therefore, not applicable. It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.   B.     Merits 33.     The Court has repeatedly held that the remedy under Article 127 of the Constitution is “effective” within the meaning of Article 13 (see, among many others, Šidlová v. Slovakia , no. 50224/99, §   77, 26 September 2006). 34.     The circumstances of the present case are different. At the time of the Constitutional Court's rejection of the applicant's third complaint on 4   November 2008, the proceedings had been pending for almost five years and the applicant was not able to obtain redress from the Constitutional Court for that substantial part of the proceedings. The Court considers that the remedy under Article 127 of the Constitution, as applied in the present case, cannot be regarded as “effective” within the meaning of Article 13 of the Convention (see also Dudičová v. Slovakia , no. 15592/03, § 83, 8   January 2009 and, mutatis mutandis, Tur v. Poland , no. 21695/05, §§   67 ‑ 68, 23 October 2007). There has accordingly been a violation of Article 13. IV.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 35.     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 36.     The applicant claimed 1,727 euros (EUR) in respect of pecuniary damage and EUR 10,000 in respect of non-pecuniary damage. 37.     The Government contested these claims. 38.     The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On   the other hand, it considers that the applicant must have sustained non ‑ pecuniary damage. Ruling on an equitable basis, it awards award him EUR 3,000 under that head. B.     Costs and expenses 39.     The applicant also claimed EUR 54 for the costs and expenses incurred before the Court. 40.     The Government did not contest this claim. 41.   The Court considers it reasonable to award the full sum claimed. C.     Default interest 42.     The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.     Declares the complaints under Articles 6 § 1 and 13 of the Convention concerning the length of the proceedings and the absence of an effective remedy in that respect admissible and the remainder of the application inadmissible;   2.     Holds that there has been a violation of Article 6 § 1 of the Convention;   3.     Holds that there has been a violation of Article 13 of the Convention;   4.     Holds (a)     that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article   44   §   2 of the Convention, the following amounts: (i) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 54 (fifty-four euros) in respect of costs and expenses; (b)     that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a   rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;   5.     Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 18 May 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.   Lawrence Early   Nicolas Bratza   Registrar   President