CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 16 octobre 2012

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SLOVAKIA (No. 2)   (Application no. 3817/07)           JUDGMENT           STRASBOURG   16 October 2012     This judgment is final but it may be subject to editorial revision. In the case of Piskura v. Slovakia (no. 2), The European Court of Human Rights (Third Section), sitting as a   Committee composed of:   Alvina Gyulumyan, President,   Ján Šikuta,   Nona Tsotsoria, judges, and Santiago Quesada, Section Registrar , Having deliberated in private on 25 September 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 3817/07) 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 is a Slovak national, Mr Mr František Piskura (“the applicant”), on 11   January 2007. 2.     The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. 3.     On 5 December 2011 the application was communicated to the Government. THE FACTS THE CIRCUMSTANCES OF THE CASE 4.     The applicant was born in 1953 and lives in Fintice. A.     Background 5.     On 29 December 1994 the applicant lodged an action with the Prešov District Court ( Okresný súd ) seeking an order for payment of outstanding wages. 6.     On 28 February 2002 the Constitutional Court ( Ústavný súd ) found that there had been a violation of the applicant’s right under Article 48 § 2 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended) to a   hearing without unjustified delay in the proceedings. 7.     On 27 May 2003 the Court came to a similar conclusion in a   judgment, in which it found a violation of the applicant’s right under Article 6 § 1 of the Convention to a hearing within a reasonable time (see Piskura v. Slovakia , no. 65567/01, 27 May 2003). 8.     Meanwhile, the action had been allowed by the District Court. Following the defendant’s appeal, it was also allowed by the Prešov Regional Court ( Krajský súd ), on 21 June 2005. 9.     The judgment became final and binding on 2 August 2005 and enforceable on 18 August 2005. It contained an order that the defendant pay the applicant the equivalent of some 35,500 euros (EUR). B.     Insolvency and related constitutional complaints 1.     Insolvency proceedings 10.     In the course of the proceedings described above, on 16 December 2003, the Košice Regional Court declared the defendant insolvent. 11.     On 27 January 2003 the applicant registered in the insolvency proceedings a claim, which appears to be identical to the claim asserted by way of his action of 29 December 1994 (see paragraph 5 above). 12.     At a hearing held on 21 May 2003 the insolvency receiver contested the applicant’s claim, in response to which he lodged a new action with a   view to having the claim acknowledged by a court. 13.     On 27 September 2005, upon the applicant’s action, the Regional Court ruled that his claim in the insolvency proceedings was valid and fell to be satisfied of the proceeds of the realisation of the insolvency estate. The judgment became final and binding on 10 December 2005 and enforceable on 14 December 2005. 14.     On 28 April 2008 the applicant registered a further claim in the insolvency proceedings and the receiver acknowledged it on 3 July 2008. 15.     On 20 January 2011 the Regional Court issued a decision approving a final report by the receiver on the realisation of the estate and on his fees and expenses ( konečná správa o speňažovaní majetku úpadcu a o vyúčtovaní odmeny a výdavkov správcu ). Following the applicant’s appeal, on 30 March 2011 the Supreme Court ( Najvyšší súd ) quashed the decision and remitted the matter to the Regional Court for re examination. It found, inter alia , that the Regional Court had omitted to deal with the applicant’s objections to the report. 16.     On 17 October 2011 the Regional Court issued a fresh decision approving the report and it was upheld by the Supreme Court on 13 January 2012, following the applicant’s appeal. 17.     The insolvency proceedings are still pending in their phase aimed at distribution of the proceeds of the realisation of the estate, the applicant having thus far not recovered any part of his claim. 2.     Constitutional complaints 18.     On 19 August 2009, following the applicant’s complaint under Article 127 of the Constitution, the Constitutional Court found that, in the insolvency proceedings, there had been a violation of his constitutional right to a hearing without unjustified delay. At the same time, it ordered that the enforcement proceedings be proceeded with without unjustified delay and awarded the applicant EUR 1,600 by way of compensation in respect of non-pecuniary damage. 19.     As to the just satisfaction award, the Constitutional Court also ruled that it was payable within two months of the day on which the constitutional judgment ( nález ) became final and binding. It became final and binding on 24 September 2009 and enforceable the following day. The award was actually paid on 3 September 2010. 20.     The applicant’s previous constitutional complaint of alleged delays and subsequent five constitutional complaints of alleged continuing delays in the insolvency proceedings were unsuccessful. C.     Damages and related constitutional complaints 1.     Claim for damages 21.     On 28 November 2005 the applicant lodged a claim under the State Liability Act (Law no. 514/2003 Coll.) with the Ministry of Justice, arguing that there had been “wrongful official conduct” consisting of unjustified delays in the insolvency proceedings and seeking damages. 22.     Not having received any compensation from the Ministry voluntarily, presumably on 29 November 2006, the applicant lodged his claim with the Bratislava I District Court. After the question of the court fees was dealt with at three levels of jurisdiction and the question of legal aid at two, the action has been pending at first instance. 2.     Constitutional complaints 23.     Meanwhile, the applicant had three times unsuccessfully contested before the Constitutional Court alleged unjustified delays in the proceedings in his action. His latest complaint was declared inadmissible as being manifestly ill-founded on 4 May 2011. D.     Other facts invoked by the applicant 24.     On 24 October 2003 the applicant filed a criminal complaint accusing one or more persons unknown of having unlawfully failed to pay him wages. However, this has not resulted in the opening of any criminal proceedings in the matter. The applicant also unsuccessfully sought enforcement of the judgment concerning his wages and made a number of various other submissions including complaints against various persons involved in his case and a   motion to the Public Prosecution Service seeking, inter alia, a challenge to the constitutionality of the Insolvency and Restructuring Code (Law   no.   8/2005 Coll., as amended). THE LAW I.     ALLEGED VIOLATION OF THE RIGHT UNDER ARTICLE 6 § 1 OF THE CONVENTION TO HEARING WITHIN REASONABLE TIME 25.     The applicant complained that the length of the insolvency proceedings and the proceedings in his action under the State Liability Act 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.     Insolvency proceedings 26.     The applicant argued that the length of the proceedings had been excessive; that there had been significant delays in payment of the compensation awarded to him under the constitutional judgment of 19   August 2009 (see paragraphs 18 and 19 above); and that there had been continued unjustified delays in the insolvency proceedings despite the Constitutional Court’s preventive order. 27.     Referring to the Constitutional Court’s judgment of 19 August 2009, the Government admitted that the complaint was not manifestly ill ‑ founded. However, relying on Article 34 of the Convention and the constitutional judgment quoted, the Government argued that in view of the compensatory and preventive redress afforded to the applicant at the domestic level he could no longer claim to be a victim of the asserted violation. In particular, they considered the amount of the compensation awarded adequate and submitted that the date of the payment of the award reflected the Regional Court’s budgetary capacity. Lastly, they submitted that there had been no further unjustified delay in the proceedings after the constitutional judgment. 28.     In reply, the applicant recapitulated the chronology of his case, pointed out that his insolvency claim had been pending for more than ten years, and emphasised that it had previously been examined and upheld in the original proceedings, the length of which had equally been contrary to the requirements of Article 6 § 1 of the Convention. In addition, he considered that the fact that the Regional Court’s decision of 20 January 2011 had to be quashed on account of the Regional Court’s omission to deal with his objections (see paragraph 15 above) only demonstrated that there had been continuous delays in the insolvency proceedings even after and despite the Constitutional Court’s preventive ruling. In conclusion, the applicant emphasised that despite two constitutional judgments and one judgment by the Court, his employment related claim was still pending. 29.     The Court notes that in its judgment of 19 August 2009 the Constitutional Court found that there had been a violation of the applicant’s constitutional right to a hearing without unjustified delay and granted him redress aimed at prevention as well as compensation. In particular, the Constitutional Court ordered that the case be proceeded with without delays and awarded the applicant just satisfaction. 30.     The Court also notes that the insolvency proceedings are still pending today, more than three years after the Constitutional Court’s judgment. This period has to be viewed in the light of the subject matter of the proceedings and the length of the proceedings as a whole. 31.     For that matter, the Court observes that the applicant’s claim concerns outstanding wages and reiterates that special diligence is necessary in employment disputes (see Ruotolo v. Italy , 27 February 1992, § 17, Series A no. 230-D). The Court also observes that the entire period to be taken into consideration began on 27 January 2003, when the applicant registered his claim in the insolvency proceedings (see paragraph 11 above), and has not yet ended. It has thus lasted more than nine years and seven months, for two levels of jurisdiction. 32.     Having regard to all the circumstances, the Court considers that the Constitutional Court’s judgment cannot be said to have had preventing effect in terms of accelerating the proceedings. Moreover, in view of the overall length of the proceedings, the lack of accelerating effect of the Constitutional Court’s judgment, and its own practice in similar cases, the Court concludes that the compensation awarded to the applicant at the domestic level is disproportionately low (see Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 178-213, ECHR 2006-V and Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006-...). Accordingly, the applicant can still claim to be a victim within the meaning of Article 34 of the Convention and the Government’s objection based on that provision must be dismissed. 33.     In the light of the parties’ submissions, in particular the Government’s admission (see paragraph 27 above), the Court concludes 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 therefore be declared admissible. 2.     Action under the State Liability Act 34.     The Government objected that the applicant had failed to respect the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention in that, following the Constitutional Court’s decision of 4 May 2011 to declare his complaint of the length of the proceedings inadmissible as manifestly ill ‑ founded (see paragraph 23 above), the applicant had failed to assert his rights a fresh constitutional complaint. 35.     The Court observes that the applicant contested the length of the proceedings in his action under the State Liability Act by way of a   constitutional complaint. It notes in particular that his last complaint was rejected as manifestly ill founded on 4 May 2011, that is to say some four years and five months after it had been lodged with a court on or around 29   November 2006. In assessing this finding the Court finds it of relevance that the applicant’s action under the State Liability Act is linked to his claim for outstanding wages in that it was lodged as a remedy in respect of the length of the proceedings on the original claim and is in that sense an extension of the underlying proceedings. In that context the Court also finds it of relevance that the complex of various sets of proceedings in relation to the applicant’s employment-related claim have been intertwined and thus far in total lasting more than seventeen years. 36.     In view of all the circumstances and bearing in mind that the Convention is intended to guarantee rights that are not theoretical or illusory, but rights that are practical and effective (see, for example, Jakub v. Slovakia , no. 2015/02, § 56, 28 February 2006), the Court considers that the Constitutional Court’s assessment of the applicant’s claim cannot be accepted. The requirement of exhaustion of domestic remedies under Article   35 § 1 of the Convention thus cannot be interpreted as requiring of the applicant to avail himself of the remedy under Article 127 of the Constitution anew (see Becová v. Slovakia (dec.), no. 23788/06, 18   September 2007) and the Government’s objection of non-exhaustion of domestic remedies must accordingly be dismissed. 37.     The period under consideration started on or around 29 November 2006 and has not yet ended. It has thus lasted more than five years and nine months in which period the merits of the claim have been under examination at a single level of jurisdiction. 38.     The Court considers that this 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. It must therefore be declared admissible. B.     Merits 39.     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). The particular sensitivity employment disputes has already been noted (see Ruotolo , cited above, § 17). 40.     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). 41.     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 insolvency proceedings and of the proceedings in the applicant’s action under the State Liability Act was excessive and failed to   meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1. II.     OTHER ALLEGED VIOLATIONS OF THE CONVENTION 42.     Relying on Article 1 of Protocol No. 1, the applicant also complained that it had been impossible for him to obtain enforcement of his adjudicated claim to compensation for lost wages. Furthermore, the applicant alleges a violation of Article 14 of the Convention in that, being a   natural person, he is treated less advantageously than legal entities in insolvency proceedings. Lastly, without further specification, the applicant also asserts a violation of Articles 1 and 13 of the Convention. 43.     However, in the light of all the material in its possession, and in so far as the matters complained of have been substantiated and within its competence, the Court finds that they do not disclose any appearance of a   violation of the rights and freedoms set out in the Convention provisions invoked. It follows that remainder of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. III.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 44.     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 45.     The applicant claimed EUR 90,314 in respect of pecuniary damage and EUR 165,969 in respect of non-pecuniary damage. The amount of the former claim consisted of the amounts adjudicated by the ordinary courts and late-payment interest. The amount of the latter claim had been calculated with reference to “17 years lasting lawsuit” and the resultant stress and repercussions on the applicant’s health. 46.     The Government contested both claims, the former in substance and the latter as to its amount, which they considered excessive. 47.     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, with reference to the violation found (see paragraph 41 above), on equitable basis, and taking into account the redress already obtained at the national level, it awards the applicant EUR 5,200 in respect of non-pecuniary damage. B.     Default interest 48.     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 UNANIMOUSLY 1.     Declares the complaint concerning the excessive length of the insolvency proceedings and of the proceedings in the applicant’s action under the State Liability Act admissible and the remainder of the application inadmissible;   2.     Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the length of the insolvency proceedings and of the proceedings in the applicant’s action under the State Liability Act;   3.     Holds (a)     that the respondent State is to pay the applicant, within three months, EUR 5,200 (five thousand and two hundred 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;   4.     Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 16 October 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.   Santiago Quesada   Alvina Gyulumyan   Registrar   President