CEDH · CASELAW;COMMUNICATEDCASES;ENG — 15 juin 2020

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s6B505E72 { margin:0pt; padding-left:0pt } .sE485344B { margin-top:14pt; margin-left:28.6pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-family:Arial; font-weight:bold } .s743F3A55 { margin-right:0pt; margin-left:0pt; padding-left:0pt } .sC6C7C49B { margin-left:7.35pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; font-weight:normal; font-style:italic } .sA36B60A1 { font-family:Arial; font-style:italic } .sF7610474 { margin-top:14pt; margin-left:36.55pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } Communicated on 15 June 2020 Published on 6 July 2020   THIRD SECTION Application no. 737/19 Pavol KAPKO and Zdena KAPKOVA against Slovakia lodged on 18 December 2018 STATEMENT OF FACTS The applicants, Mr Pavol Kapko and Mrs Zdena Kapková, are Slovak nationals, who were born in 1969 and live in Omšenie. They are represented before the Court by Mr M. Kluka, a lawyer practising in Bratislava. The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows. On 17 July 2012 the applicants, husband and wife, sued two private parties before the Trenčín District Court for non-pecuniary damages suffered as a result of their daughter’s death during the 2009 summer music festival ‘Pohoda’ (case file no. 27C/173/2012). During the proceedings, the case file was referred on several occasions to the superior courts (second and third instance) due to the defendants’ motions to stay the proceedings or due to their objections to the judge’s impartiality (always with an unfavourable outcome for the defendants). On 12 April 2018 the applicants lodged a complaint under Article 127 of the Constitution challenging the overall length of the ongoing civil proceedings. In the summary of their complaint, they indicated all three judicial instances concerned and specified the case file numbers of each and every stage of the proceedings (no. 27C/173/2012 before the court of first instance, nos. 19Co/38/2014 and 19Co/39/2014 before the appellate court, and no. 5Cdo/557/2014 before the Supreme Court). On 15 August 2018 the Constitutional Court dismissed their complaint as manifestly ill-founded (I. ÚS 278/2018). The decision was served on the applicants’ lawyer on 20 September 2018. The Constitutional Court had separated the parts of the proceedings which took place before different instances. With regards to the proceedings before the court of first instance, it ruled that the district court had proceeded in due-time, especially in view of the fact that (i) the proceedings included a ‘foreign element’ (one of the defendants was a foreign company with which communication was more difficult), (ii) the court itself had to deal with a number of motions filed by the defendants and (iii) during the proceedings the case was reassigned to another judge who needed time to get acquainted with the case file. Concerning the proceedings before the superior courts, the Constitutional Court held that the decisions of the appellate court and of the Supreme Court had been adopted prior to the lodging of the constitutional complaint and therefore those courts could no longer influence the passage of time (in other words, the proceedings before these two instances were no longer pending when the complaint was lodged). On 17 September 2018 the Trenčín District Court issued its judgment on the merits awarding 30,000 euros (EUR) to each of the applicants. One of the defendants filed an appeal and, as far as substantiated, the proceedings are still pending before the court of appeal. Relevant domestic law and practice The Constitution Article 48 § 2 provides, inter alia , that every person has the right to have his or her case tried without unjustified delay. Pursuant to Article 127, natural and legal persons can complain ( sťažnosť ) about a violation of their fundamental rights and freedoms. Under this provision, the Constitutional Court has the power, in the event that it finds a violation of Article 48 § 2 of the Constitution, to order the authority concerned to proceed with the case without delay. It may also grant adequate financial satisfaction to the person whose constitutional rights have been violated as a result of excessive length of proceedings. The Constitutional Court Act The implementation of the above constitutional provisions is set out in more detail in sections 122 to 135 of the Constitutional Court Act (Law no.   314/2018 Coll.), as amended, which replaced the previous Constitutional Court Act (Law no. 38/1993 Coll.) as of 1 March 2019. Pursuant to Section 45 (previously section 20 (3) of the repealed law), as a general rule, the scope of the Constitutional Court’s examination of a case is limited by the summary of the motion for commencement of the proceedings, as formulated in a standardised and prescribed form by the plaintiff. Section 124 (previously section 53 (3) of the repealed law) provides that a constitutional complaint can be filed within a period of two months from the date on which the decision in question has become final and binding or on which a measure has been notified or on which a notice of other interference has been given. As regards the measures and other interferences, the above period commences when the complainant could have become aware of them. The Constitutional Court’s Practice It has been the Constitutional Court’s established practice to entertain complaints concerning the allegedly excessive length of proceedings only where the proceedings complained of are pending before the authority liable for the alleged violation at the moment at which such complaints are lodged (see the Constitutional Court’s case-law cited in Mazurek v. Slovakia (dec.), no.   16970/05, 3 March 2009; for the general case-law principles, as well as the existing case-law on exhaustion of domestic remedies in relation to complaints about length of proceedings in Slovakia, see Ištván and Ištvánová v. Slovakia , no. 30189/07, §§ 63-75, 12 June 2012). COMPLAINTS The applicants complain under Articles 6 § 1 and 13 of the Convention about the overall length of the civil proceedings concerning their claim for non-pecuniary damages and the failure by the Constitutional Court to examine the entire duration of the proceedings. QUESTIONS TO THE PARTIES 1.     Taking into account the overall duration of the civil proceedings concerning the claim for the non-pecuniary damages at issue, was their length in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention (see, among many other authorities, Frydlender v.   France [GC], no.   30979/96, § 43, ECHR 2000-VII)?   2.     Did the applicants have at their disposal an effective domestic remedy for their complaint under Article 6 § 1 of the Convention, as required by Article 13 of the Convention? In particular, having regard to the fact that the Constitutional Court did not examine the entire length of the civil proceedings at issue, was the remedy under Article 127 of the Constitution “effective” for the Convention purposes (see Hoholm v.   Slovakia , no.   35632/13, §§ 56-58, 13 January 2015, and A.R., spol. s r.o. v.   Slovakia , no.   13960/06, §§ 59-60, 9 February 2010)?