CEDH · CASELAW;RESOLUTIONS;EXECUTION;ENG — 2 décembre 2010

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margin-bottom:0pt; font-size:8pt } .s1198F2B5 { font-size:5.33pt; vertical-align:super; color:#000000 } .s846B54EF { font-size:5.33pt; vertical-align:super; color:#0069d6 } Interim Resolution CM/ResDH(2010)225 on the judgments of the Court of Human Rights in 78 cases against the Slovak Republic concerning excessive length of civil proceedings (See Appendix for the list of cases in the Jakub group )   (adopted by the Committee of Ministers on 2 December 2010, at the 1100th meeting of the Ministers’ Deputies)     The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter “the Convention”),   Considering the number of judgments of the European Court of Human Rights (hereinafter “the Court”) finding violations by the Slovak Republic of Article 6, paragraph 1, of the Convention, due to excessive length of civil proceedings (see Appendix for the list of cases in the Jakub group );   Considering that in some of these judgments the Court moreover found a violation of Article 13 of the Convention due to the lack of an effective domestic remedy against excessive length of proceedings (Dobál, Dudičová, Komanický No. 2, Múčková, Preložník, Šidlová);   Recalling that delays in the administration of justice constitute a grave danger to the respect for the rule of law and access to justice;   Recalling furthermore Recommendation Rec(2004)6 of the Committee of Ministers to member states on the improvement of domestic remedies;   Having examined the information regularly supplied by the Slovak authorities concerning the measures taken or envisaged in response to these judgments (see Appendix);   Individual measures   Having noted the individual measures taken by the authorities to afford the applicants redress of the violations found (restitutio in integrum), in particular the due payment of the amounts which the Court awarded by way of just satisfaction and all possible steps to expedite the proceedings that were still pending after the Court’s finding of violations;   Welcoming the conclusion of the domestic proceedings at issue in 63 of the 78 cases concerned;   Noting with concern, however, that 15 cases are still pending before the national courts (Hrobová, Lubina, Orel, Rišková, Softel No. 1, Softel No. 2, Dudičová, Komanický No. 2, Rapoš, Španίr, Chrapková, Keszeli, Kučera, Majeríková, Sika No. 6);   General measures   Measures to remedy the problem of excessive length of court proceedings   Welcoming the many organisational reforms adopted between 2007 and 2010 by the authorities to remedy these problems, and in particular:   -           increase in the number of judges, -           creation of new courts, -           development of the data processing system and of court management;   Noting with interest the additional measures envisaged by the authorities, such as the Bill assigning judicial groundwork to auxiliary judges and registrars, enabling the judges to concentrate exclusively on court decisions, and encouraging the authorities to implement these schemes;   Also welcoming the two reforms to the Code of Civil Procedure (“little” and “big” amendment of the Code) and of the law on court costs, which came into force in 2007 and 2008, with the following results in particular: -           simplification of procedures for service of documents, -           reduction of court costs, -           introduction, in proceedings brought against the administrative authorities, of the possibility for the public prosecutor to lodge with the court an application to compel the administration concerned to act, -           harmonisation of the procedure for challenging judges, -           extension of the possibility for courts to determine a case without a hearing, -           simplification of the inheritance procedure, -           introduction of a simplified procedure for settlement of minor litigation, -           broadening of the scope of the legal rules governing court orders, -           introduction of the possibility for courts to appoint joint counsel for several parties to the one set of proceedings, -           limitation of the possibility for courts of appeal and cassation to challenge or quash rulings delivered by a lower court and to refer them back for review;   Noting that, having undergone constant increase, particularly between 2002 and 2004, the average length of civil proceedings now appears to be decreasing regularly, having dropped from 17.56 months in 2004 to 13 months in 2009;   Considering nonetheless that the impact of the reforms adopted and envisaged concerning the length of civil proceedings and their real capacity to prevent similar violations will be fully ascertainable only on the basis of statistical data gathered over a longer period;   Measures to provide an effective remedy   Noting that a reform to the Constitution which came into force in 2002 introduced a constitutional petition for complaints of violations of human rights protected by international treaties and that the Court has already found, in particular in the decision on admissibility in the case of Andrášik and others of 22/10/2002, that the new procedure represented an effective remedy within the meaning of Article 13 of the Convention;   Recalling that in several cases the Court has nevertheless observed certain difficulties with the application of this remedy:   a) difficulties linked with dismissal of the petition when a case is no longer pending before the court responsible for alleged delays   Noting with satisfaction in this matter that examples of Constitutional Court judgments in 2003 and 2005 were supplied by the authorities, bearing witness to that court’s new practice, in accordance with European Court case-law (Jakubίčka and Magyaricsová), of taking into account the length of the proceedings before several degrees of instance when it entertains petitions against the length of proceedings;   b) difficulties linked with the amounts awarded in compensation by the Constitutional Court   Recalling also that the Court noted in several cases (in particular Magura, Rišková, Šidlová) the manifest inadequacy of the compensation awarded by the Slovak Constitutional Court for excessive length of civil proceedings, amounting to sums from under 5 % to 25% of what the Court itself would have awarded under Article 41 of the Convention in respect of these delays;   Noting with interest in this context that in twelve decisions on petitions against the length of civil proceedings, delivered in 2009, the Constitutional Court awarded compensation ranging from 25% to more than 100 % of the amounts that could be awarded by the Court for these delays;   c) difficulties linked with the ineffectiveness of the Constitutional Court’s injunctions to expedite proceedings   Recalling furthermore that in some cases (Vičanová, Komanický No. 2) the Court criticised the ineffectiveness of the Constitutional Court’s injunction to expedite proceedings;   Noting with interest in this connection that a system to follow up Constitutional Court decisions finding the length of proceedings excessive and ordering that they be expedited was introduced in 2010, but noting that confirmation of the expeditive effect of the Constitutional Court’s injunctions is still awaited;   d) difficulties linked with the criteria applied by the Constitutional Court to determine the length of proceedings, including that of suspended proceedings   Recalling, finally, that in its judgments the Court held that the applicants did not have an effective remedy because of the Constitutional Court’s practice of dismissing petitions concerning cases where the length of the proceedings had not been considered great enough to justify the complaint (Dudičová) or cases where the domestic proceedings were suspended (Dobál);   Noting in this connection that examples of decisions testifying to the Constitutional Court’s present practice are still awaited;   INVITES the Slovak authorities to do their utmost to expedite the proceedings still pending before the Slovak courts, so that they may be concluded rapidly, and to keep the Committee informed of their progress;   ENCOURAGES the Slovak authorities to persevere in their efforts to solve the general problem of excessive length of civil proceedings and to consolidate the promising downward trend currently observed in the average length of proceedings;   INVITES the authorities to continue keeping the Committee informed of developments in the matter, especially as regards the impact of the measures and the trend in the average length of proceedings;   INVITES the authorities furthermore to provide the Committee with additional information enabling it to satisfy itself that the domestic remedy against length of proceedings functions in accordance with the criteria laid down by the Court;   DECIDES to resume consideration of these cases at its 1108th DH meeting (March 2011). Appendix to Interim Resolution CM/ResDH(2010)225   Information provided by the Government of the Slovak Republic for the Committee of Ministers’ examination of the cases concerning excessive length of civil proceedings   I. Individual measures   The Slovak authorities are regularly supplying information on the progress of the proceedings which are the subject of the Court’s judgments. According to the latest information, the following 15 cases are still pending before the national courts: Hrobová, Lubina, Orel, Rišková, Softel No. 1, Softel No. 2, Dudičová, Komanický No. 2, Rapoš, Španίr, Chrapková, Keszeli, Kučera, Majeríková, Sika No. 6.   II. General measures   A) Measures to reduce the length of proceedings   1) Organisational measures   The following measures have been adopted by the authorities:   The Government increased the number of judges by 50 during the first quarter of 2008. In 2009 and 2010, the number of judges was increased by more than 10%.   Following the enactment of Law No. 511/2007 amending Law No. 371/2004, nine local courts have been set up and brought into service since 01/01/08.   The Minister of Justice has invited all judges to adopt a proactive and responsible approach to the fulfilment of their judicial obligations, and visits courts unannounced to verify judges’ state of readiness for hearings.   Certain technical changes have been made to the management of the judicial system including creation of new electronic databases and a central database for the judicial system as an efficient means for users to ascertain the existence of parallel proceedings; judges can monitor the progress of the cases before the courts and check up on the situation of the prisoners serving their sentences.   The Ministry of Justice is currently working on a Bill for assigning the judicial groundwork to principal auxiliary judges and court registry staff enabling judges to concentrate exclusively on the court decisions.   2) Procedural changes   Two legislative amendments have been made in the last few years:   1) A set of amendments adopted as Law No. 273/2007, which came into force on 01/07/07 (“little” amendment of the Code of Civil Procedure), amended Law No. 99/1963 of the Code of Civil Procedure. It also amended Law No. 71/1992 on court costs. The “little” amendment was intended to introduce eight changes in civil procedure so as to improve the functioning of the courts. These changes comprise four administrative measures on allocation of powers, procedures for the service of documents, management of case files in courts of appeal and simplification/reduction of court costs.   There have also been four substantive changes in the Code as regards judicial procedure: -           Article 16: harmonisation of the time-limits for challenging judges with those for bringing appeals. Allegations of bias will no longer be examined under a separate procedure but among the principal grounds of appeal; -           Article 214: courts of appeal can rule on a larger number of issues without holding a hearing, in restricted circumstances which include the parties’ consent not to hold a hearing and subject to a verification of the considerations of public interest which arise; -           Articles 250f(3) and 250ja(3): amplification of the class of cases that may be determined without a hearing by administrative courts, when the decision of an administrative authority should manifestly be set aside; -           Article 250t(2): in proceedings brought against the administrative authorities, the public prosecutor may lodge with the court an application to compel the administration concerned to act and to take a decision.   2) An amendment to the Code of Civil Procedure (No. 384/2008), which came into force on 15/10/2008 (“big” amendment of the Code of Civil Procedure) introduced changes including: -           Articles 15 (1) and (2) and 16 (3): harmonisation of the procedure for challenging judges so as to obviate the referral of the case to another judge who might also be concerned by allegations of bias, and enable the court to continue dealing with the case (though without deciding on the merits), on condition that the allegations of bias are ill-founded; -           Article 29a (1) and (2): possibility for courts to appoint joint counsel for several parties to the proceedings in cases with over twenty plaintiffs or respondents, making it possible in particular to expedite proceedings when a party has died and has no known heirs; if a party objects to the appointment of the joint counsel, the dispute in that regard can be disjoined and determined under a separate procedure; -           Articles 38 (1), (2) and (5) and 175cza (7): simplification of the procedure on inheritance which a notary conducts by permission of the court, being able to issue certificates of succession; -           Article 45 (3) to (6): possibility for the parties to proceedings to serve and to be served documents electronically; -           Articles 114 (1) and (3) to (6) and 115a (2): extension of the possibility for the court to determine a case without a hearing, and introduction of a simplified procedure for the settlement of minor litigation; the first amendment provides scope for frustrating dilatory tactics by parties to proceedings failing to make their submissions or to take delivery of their mail (a judgment by default is nevertheless hedged with guarantees of due process: it is delivered publicly and may be set aside at appeal); -           Articles 172 (5) and (6) and 174b (1): extension of the scope of the legal rules governing court orders, so that courts are authorised to issue not only an order to pay but also an injunction to take or refrain from action; -           Article 221 (1) (h): limitation of the possibility for courts of appeal to challenge the decisions delivered at first instance and to refer them back for review; such referral is henceforth possible only where the court of first instance has both wrongly established the facts and misapplied the law; -           Article 243b (1) to (4) and (6): introduction of the principle of review in proceedings before the Court of Cassation, enabling it to rectify certain decisions which are appealed on points of law instead of overturning them and referring them to a court below for review.   3) Publication and dissemination of the Court’s judgments   The judgments of the Court against the Slovak Republic are regularly published in the journal Justičná revue.   4) Effectiveness of the measures adopted   According to the statistics provided by the Slovak authorities, the average length of civil proceedings in the last few years is as follows:   2002 15.18 months 2003 16.56 months 2004 17.56 months 2005 16.86 months 2006 15.40 months 2007 15.06 months 2008 14.07 months 2009 13.00 months   B) Measures for bringing an effective domestic appeal in the event of excessively protracted civil proceedings   A reform to the Constitution in 2002 introduced a constitutional petition for complaints of violations of human rights protected by international treaties. The Court has already observed on various occasions that this new procedure represents an effective remedy within the meaning of Article 13 of the Convention (see in particular the decision on admissibility in the case of Andrášik and others of 22/10/2002).   1) Constitutional Court practice of dismissing appeals where the case is no longer pending before the court responsible for alleged delays   Examples of Constitutional Court judgments in 2003 and 2005 [1] have been supplied by the authorities in order to illustrate another practice of this court, which is to have regard to the length of the proceedings before several courts in examining the appeal. According to the Slovak authorities, the practice of the Constitutional Court which the European Court criticised (see in particular Jakubίčka and Magyaricsová) was followed sporadically during the first five years of operation of the new remedy and was due to the legislative changes. The present tendency is to align it with the requirements deriving from the case-law of the Court.   In addition, the Jakub and Malejčík judgments were circulated to the Constitutional Court. The Malejčík judgment was published in Justičná revue, No. 6-7/2006.   2) Inadequacy of the amounts awarded in compensation by the Constitutional Court   On 07/11/2008, the Agent of the Slovak Republic before the Court organised a seminar in conjunction with the EUROIURIS Centre for European law. The seminar took place in the Constitutional Court of the Slovak Republic with the participation of the Constitutional Court’s legal advisers. During the seminar, emphasis was placed on the inadequacy of the compensation awarded by the Constitutional Court in cases concerning excessive length of proceedings. Participants’ attention was drawn to the relevant case-law of the Court and to an analysis of the individual Slovak cases concerned.   On 08/01/2010, the authorities forwarded twelve examples of decisions delivered by the Constitutional Court between 17 February and 10 September 2009 [2] , concerning appeals against the length of civil proceedings. Compared to what may be awarded by the Court in this type of case, the amounts awarded by the Constitutional Court are as follows: in five cases they vary from 25% to 42%, in five more from 46% to 74%, and in two they remain above 100%.   3) Constitutional Court practice regarding dismissal of appeals concerning suspended proceedings   On 02/09/2008, the Slovak authorities confirmed that the judgment in the Dobál case had been transmitted to the Constitutional Court in a circular of the Agent of the Government of the Slovak Republic. The President of the Constitutional Court was asked to inform all this court’s judges of the decision in order to avert similar violations.   4) Ineffectiveness of the Constitutional Court’s orders to courts to expedite proceedings which have incurred significant delays   Among the decisions submitted on 08/01/2010 (see below), the Constitutional Court directed the trial courts - in all cases still pending (ten) - to proceed without delay.   In April 2010 a system was established for following up Constitutional Court decisions finding excessive length of proceedings and ordering that they be expedited. Under this programme, the Constitutional Court and several other authorities (Ministries of Justice and the Interior, Supreme Court, State Counsel General, bar association and Mediator) have committed themselves to joint action to eliminate the delays in civil proceedings. The Constitutional Court keeps a register of the cases which disclose excessive length of proceedings and are still pending before the courts. These cases are then closely monitored by the Ministry of Justice and the presiding judges of the courts. Disciplinary penalties may be imposed on judges and lawyers. The Constitutional Court is informed at regular intervals of the state of the proceedings in question.       [1] especially decisions nos. I ÚS 53/02, I ÚS 56/02, I ÚS 123/02, III ÚS 15/03, III ÚS 173/03 [2] especially decisions nos. III ÚS 1/09, IV ÚS 59/09, II ÚS 36/09, III ÚS 44/09, II ÚS 55/09, I ÚS 257/08