CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 22 novembre 2016

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SLOVAKIA   (Application no. 77164/12)                 JUDGMENT     STRASBOURG   22 November 2016           This judgment is final but it may be subject to editorial revision.   In the case of Grešáková v. Slovakia, The European Court of Human Rights (Third Section), sitting as a   Committee composed of:   Helen Keller, President,   Pere Pastor Vilanova,   Alena Poláčková, judges, and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 3 November 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 77164/12) 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, Ms Mária Grešáková (“the applicant”), on 27 November 2012. 2.     The applicant was represented by a law firm – JUDr. Stopka, JUDr.   Blendovský, JUDr. Strapáč, PhD., s.r.o., – with its registered office in Čadca. 3.     The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. 4.     On 20 March 2015 the application was communicated to the Government. 5.     The Government objected to the examination of the application by a   Committee. Having considered the Government’s objection, the Court rejects it. THE FACTS THE CIRCUMSTANCES OF THE CASE 6.     The applicant was born in 1975 and lives in Rudinská. 7.     On 17 December 2008 the applicant lodged a civil action with the Žilina District Court (file no. 8 C 240/2008) seeking an order for the defendant (a municipality) to enter into a contract with her concerning the transfer of a flat, in which she resided. 8.     The District Court scheduled two hearings for 8 June and 8   July   2009; it ruled on the merits of the action and granted the action on the latter date. The applicant lodged an appeal; the judgment was quashed by a court of appeal on 8 April 2010 and the matter was remitted on 4 June 2010 to the District Court. 9.     The applicant lodged a complaint under Article 127 of the Constitution with the Constitutional Court contesting the length of the proceedings in so far as those had been held before the District Court. 10 .     On 11 October 2012 the Constitutional Court (file no.   II.   ÚS   423/2012) rejected her complaint on the ground that, prior to lodging her constitutional complaint, the applicant had failed to exhaust ordinary remedies, in particular lodging a complaint with the President of the District Court under the Courts Act (Law no. 757/2004). The Constitutional Court noted that the court of appeal had transferred the case file to the District Court on 4 June 2010 and that the applicant had lodged her constitutional complaint on 27 September 2012. It found that, within that period, the District Court had failed actively to proceed with the matter for one year and a half. The Constitutional Court observed that the Court’s previous case-law – such as Ištván and Ištvánová v. Slovakia (no. 30189/07, 12 June 2012), which concerned a delay of more than six years – dealt with unjustified delays imputable to the courts that were substantially longer than those in the present case (one year and a half). The Constitutional Court considered that, because the unjustified delays in the present case had been shorter (compared to those in respect of Ištván and Ištvánová and other similar cases), it was justified in requiring – before turning for protection to the Constitutional Court – that the applicant lodge a complaint with the President of the District Court with a view to accelerating her proceedings. 11.     Following the Constitutional Court’s decision, the District Court scheduled a hearing for 9 September 2015. At the time of communication of the application the proceedings were still pending. THE LAW I.     ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION 12.     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. 13.     As in other similar cases (see, for example, Ištván and Ištvánová , cited above; Csákó v. Slovakia, no. 47386/07; 25   June   2013; and Klinovská v.   Slovakia, no. 61436/09, 8 October 2013), the Court considers that this complaint falls to be examined under Article 6 § 1 in conjunction with Article 13 of the Convention, the relevant part of which read as follows: Article 6 § 1 “In the determination of his civil rights and obligations ..., everyone is entitled to a   ... hearing within a reasonable time by [a] ... tribunal...” Article 13 “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 14.     The Government referred to the Constitutional Court’s finding that, before introducing her constitutional complaint, the applicant had failed to   raise the issue of the length of the proceedings with the President of the District Court in order to give the President a chance to   remedy the situation. Since the unjustified delays in the present proceedings had been shorter than those previously assessed by the Court (see, for example, Ištván and Ištvánová, cited above), the requirement to lodge a complaint with the President of the District Court prior to taking the case to the Constitutional Court had been justified. By failing to lodge a complaint, the applicant had not met the admissibility requirement of exhaustion of ordinary remedies before turning to the Constitutional Court. Consequently, the Government sought guidance from the Court in order to clarify the issue at stake. 15.     The applicant disagreed and reiterated her complaint. 16.     The Court observes that, in Ištván and Ištvánová (cited above), it examined at length the applicants’ compliance with the exhaustion requirement under Article 35 § 1 of the Convention in respect of their length-of-proceedings complaint. In that case, the applicants had lodged their constitutional complaint shortly after they had lodged their complaint under the Courts Act with the president of the court concerned. They had even received an answer from the president allowing their complaint and indicating that corrective measures would be taken. Since only a short time had elapsed following that response, the Constitutional Court declared their complaint inadmissible. It reiterated that the applicants had been obliged to   allow the president of the court in question to take adequate action in respect of their complaint under the Courts Act and to remedy the situation prior to their seeking constitutional protection. The Court then scrutinised the aforesaid requirement imposed on the applicants by the Constitutional Court. 17.     In doing so, the Court confirmed that in respect of the excessive length of proceedings, the remedy that was normally considered to be effective and that accordingly had to be used for the purposes of the exhaustion of domestic remedies rule under Article 35 § 1 of the Convention was the complaint under Article   127 of the Constitution. In addition, the Court took into account the fact that, when examining complaints about length of proceedings, the president of the court concerned acted in the capacity of a “manager” rather than in a judicial capacity. Moreover, the Court observed that a complaint to the president of the court in question as a remedy had no compensatory potential (see Ištván and Ištvánová , cited above, §§ 78-84). 18.     It was, inter alia , for the aforesaid reasons that the Court concluded that the applicants in Ištván and Ištvánová could not be reproached under Article 35 § 1 of the Convention for having failed to exhaust domestic remedies on account of the way in which they had acted – that is, by firstly turning (under the Courts Act) to the president of the court concerned and shortly thereafter to the Constitutional Court under Article 127 of the Constitution. 19.     The Court also observes that other cases have already been resolved in the Committee formation in the light of the conclusions reached in Ištván and Ištvánová (see for example Csákó v. Slovakia, no. 47386/07; 25   June   2013; Untermayer v. Slovakia, no. 6846/08, 9 July 2013; Klinovská v. Slovakia, no. 61436/09, 8 October 2013; and Bednár v. Slovakia, no.   64023/09, 8   October 2013). 20.     Turning to the facts of the present case, the Court considers that the applicant’s situation is similar to that of Mr Ištván and Ms Ištvánová in that her access to the Constitutional Court under Article 127 of the Constitution became dependent on her lodging a complaint under the Courts Act with the President of the District Court (see paragraph 10). 21.     The Court notes that the Government seek to distinguish the present case from those such as Ištván and Ištvánová (cited above) on the ground that the unjustified delays in the instant proceedings were shorter than the unjustified delays established in the other cases. 22.     It notes that a similar argument was advanced but failed to convince the Court in the case of Ištván and Ištvánová , where the Government had argued that “making use of a complaint under the Courts Act was not required in cases where the length of proceedings was ‘extreme’ and ‘manifestly disproportionate’, provided that the complainant had actively been seeking their acceleration” (see Ištván and Ištvánová , cited above, §§   86 and 91). 23.     In addition, the Court observes that, rather than focusing on the examination of the reasonableness of the length of the proceedings as a   whole in terms of Article 6 § 1 of the Convention, the approach proposed by the Government appears to be limited to an examination of the domestic law concept of unjustified delays attributable to the individual court in question. Such delays may, however, occur before different levels of courts dealing with a case in one set of proceedings; they may also occur before different courts dealing with a single case at the same level (for example, in the case of a transfer of jurisdiction). 24.     In that respect, the Court reiterates that it has to satisfy itself in each individual case whether the protection of a person’s right granted by the Constitutional Court is 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 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 (see Bako v. Slovakia (dec.), no. 60227/00, 15 March 2005). 25.     The Court notes that in the present case the Government limited their argument to the notion of the difference between the length of the unjustified delays attributable to the District Court and the unjustified delays attributable to the courts in cases such as Ištván and Ištvánová . 26.     The Court considers that, to the extent that the Government’s argument has been substantiated, it does not contain any elements invalidating the reasons behind its findings in Ištván and Ištvánová in respect of the exhaustion of domestic remedies or otherwise calling for a   different conclusion. It follows that the Government’s inadmissibility plea must be dismissed. 27.     The Court finds that the Article 6 § 1 complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention and that no other ground for declaring it inadmissible has been established. It   must accordingly be declared admissible. 28.     In view of the above, the Court considers that the complaint under Article 13 of the Convention, which is linked to the complaint under Article   6 § 1, must likewise be declared admissible. B.     Merits 29.     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). 30.     The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to those raised in the present case (see Frydlender , cited above). 31.     In the present case, the period to be taken into consideration began on 17 December 2008 and the proceedings were still pending in September 2015, after the application had been communicated. The Court notes that it has not been informed about the subsequent course of the proceedings. However, it considers that this is not an impediment to its examination of the merits of the present length-of-proceedings complaint because, having regard to its case-law on the subject, the length of the proceedings in the present case was excessive and had already failed to meet the “reasonable time” requirement at the time of the communication of the application. 32.     There has accordingly been a breach of Article 6 § 1. 33.     Furthermore, the Court notes that the Government have submitted no observations in respect of the Article 13 complaint. In view of the conclusions reached above as regards exhaustion of domestic remedies in respect of the complaint under Article 6 § 1 of the Convention, the Court finds, as it has previously in similar circumstances (see Ištván and Ištvánová , cited above, § 113), that the applicant did not have an effective remedy in respect of her complaint about the length of the proceedings. There has accordingly also been a violation of Article 13, in conjunction with Article 6 § 1 of the Convention. II.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 34.     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 35.     The applicant claimed 1,500 euros (EUR) in respect of non ‑ pecuniary damage. 36.     The Government left the matter to the Court’s discretion. 37.     The Court considers that the applicant must have sustained non ‑ pecuniary damage. Ruling on an equitable basis, and in view of the scope of the applicant’s claim, it considers that it should be allowed in full. It thus awards the applicant EUR 1,500 under that head. B.     Costs and expenses 38.     Submitting documentary evidence, the applicant also claimed EUR   323.50 for the costs and expenses incurred before the Constitutional Court. As for the costs and expenses incurred before the Court, she claimed EUR 189.60 in respect of lodging the application with the Court and EUR   95.71 in respect of the further submission upon the communication of the application. 39.     The Government invited the Court to determine these claims in accordance with the Court’s case-law. 40.     Regard being had to the documents in its possession and to its case ‑ law, the Court considers it reasonable to award the sum of EUR 600 in respect of the proceedings before the Constitutional Court and before the Court. C.     Default interest 41.     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 application admissible;   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, in conjunction with Article 6 § 1 of the Convention;   4.     Holds (a)     that the respondent State is to pay the applicant, within three months, the following amounts: (i)     EUR 1,500 (thousand five hundred euros), plus any tax that may be chargeable, in respect of pecuniary damage; (ii)     EUR 600 (six hundred euros), plus any tax that may be chargeable to the applicant, 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; Done in English, and notified in writing on 22 November 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.   Fatoş Aracı   Helen Keller Deputy Registrar   President