BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FOURTH
SECTION
CASE OF FEKIAČ AND FEKIAČOVÁ v. SLOVAKIA
(Application
no. 39202/04)
JUDGMENT
STRASBOURG
10 November 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Fekiač and Fekiačová v. Slovakia,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza,
President,
Giovanni Bonello,
David Thór
Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
Ledi Bianku,
Nebojša
Vučinić, judges,
and Lawrence
Early, Section
Registrar,
Having
deliberated in private on 20 October 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 39202/04) 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 Slovak nationals, Mr Pavel Fekiač
(“the first applicant”)
and Mrs Jolana Fekiačová (“the second applicant”),
on 13 October 2004.
- The
Slovak Government (“the Government”) were represented by
their Agent, Mrs M. Pirošíková.
- On
16 February 2007 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
- The
applicants are spouses. The first applicant was born in 1930 and the
second applicant was born in 1940. They live in Detva.
- On
8 January 1997 the applicants claimed that the joint ownership of a
real property should be dissolved and that the property in issue
should be distributed between them and a third co-owner.
- On
24 February 1997 the Zvolen District Court delivered a judgment
against which the defendant appealed.
- The
judgment was quashed by the Banská Bystrica Regional Court on
12 June 1997.
- On
28 August 2002 the Regional Court upheld the first-instance decision
of 19 July 2002 ordering each of the applicants to pay an advance on
expert's fees. The second applicant unsuccessfully complained that
she was not obliged to pay that sum (the equivalent of 92 euros (EUR)
at that time). Subsequently, enforcement of the above decision was
ordered. The second applicant submits that she was thereby put
in a difficult situation as her only income was an invalidity
pension.
- On
22 April 2002 the first applicant complained to the Constitutional
Court about excessive delays in the Zvolen District Court's
proceedings. The Constitutional Court asked him to rectify
shortcomings in his submission. On 23 May 2002 the first applicant
appointed a lawyer to represent him in the constitutional
proceedings. On 30 May 2002 the lawyer, on behalf of the first
applicant, complied with the Constitutional Court's request.
- On
8 January 2003 the Constitutional Court found that the District Court
had violated the first applicant's right to a hearing within a
reasonable time in that it had significantly contributed to the
length of the proceedings. It awarded the first applicant 25,000
Slovakian korunas (SKK) (the equivalent of EUR 607 at that
time), ordered the District Court to avoid further delays and to
reimburse the first applicant's costs.
- On
24 June 2003 the Zvolen District Court decided to transfer the case
to the Lučenec District Court.
- The
file was transferred to the Lučenec District Court on
7 August 2003. The latter delivered a judgment on the
merits on 3 October 2005. The applicants appealed
and filed additional claims for compensation.
- The
file was transferred to the court of appeal on 18 November 2005.
On 15 March 2006 the Regional Court upheld the first-instance
judgment, noting that it could not examine any additional claims
which the plaintiffs had not submitted to the first-instance court.
The decision was served on the applicants on 27 March 2006.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants 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
1. As to the second applicant
- The
Government argued that the second applicant had not exhausted
domestic remedies, as she had failed to raise her complaint before
the Constitutional Court. They relied, inter alia, on the
Constitutional Court Act 1993, according to which an applicant must
be identified and must sign his or her constitutional complaint. They
further pointed out that the Constitutional Court was bound by law to
examine complaints as formulated by the applicants.
- The
second applicant stated that the Constitutional Court could not
decide on a violation of her rights as the District Court had
withdrawn the relevant documents from the file concerning the civil
proceedings.
- The
Court observes that the complaint lodged with the Constitutional
Court on 22 April 2002 was signed by the first applicant. Only the
first applicant appointed a lawyer to represent him in the
constitutional proceedings. The subsequent submission of 30 May
2002 was filed by the lawyer and was clearly made only on behalf of
the first applicant.
- It
does not consider relevant the second applicant's argument that the
Constitutional Court could not decide on her complaint on the ground
that some documents were missing from the file concerning her civil
case.
It
follows that the second applicant's complaint must be rejected under
Article 35 §§ 1 and 4 of the Convention for
non-exhaustion of domestic remedies.
2. As to the first applicant
- The
Government expressed the view that the first applicant could no
longer claim to be a victim of a violation of his right to a hearing
within a reasonable time. They argued that the Constitutional
Court had expressly acknowledged such a violation, had ordered the
Zvolen District Court to act and had awarded adequate just
satisfaction. Additionally, the case was transferred to the Lučenec
District Court shortly after the Constitutional Court's judgment and
the first applicant did not exhaust domestic remedies in respect of
the period of the proceedings before that court, as well as before
the Regional Court.
- The
first applicant reiterated his complaint.
- The
Court observes that at the time of the Constitutional Court's
decision the overall length of the proceedings was six years. The
Court notes that the first applicant directed his constitutional
complaint only against the first-instance proceedings. On the basis
of his complaint, the Constitutional Court examined the period of
five years and eight months when the case had been dealt with by the
Zvolen District Court. It observes that, in respect of that period,
the amount of just satisfaction awarded at the domestic level cannot
be considered to have provided adequate and sufficient redress to the
first applicant in view of the Court's established case-law (see
Scordino v. Italy (no. 1) [GC], no. 36813/97, §§
178-213, ECHR 2006-..., and Cocchiarella v. Italy [GC], no.
64886/01, §§ 65-107, ECHR 2006-...).
- In
view of the above, the Court concludes that the first applicant did
not lose his status as a victim within the meaning of Article 34 of
the Convention. It further finds that he was
not required to again resort to the complaint under Article 127 of
the Constitution in respect of the period of the proceedings after
the Constitutional Court's judgment (see, mutatis
mutandis, Becová
v. Slovakia (dec.), no. 23788/06, 18
September 2007).
- It
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
- 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
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).
- Having
examined all the materials submitted to it and having regard to its
case-law on the subject, the Court concurs with the view expressed by
the Constitutional Court and considers that in the instant case the
length of the first-instance proceedings up to the date of the
Constitutional Court's judgment was excessive and failed to meet the
“reasonable time” requirement. It further observes that
courts at two levels of jurisdiction dealt with the case for more
than three years after the Constitutional Court's judgment and finds
further delays in that period.
There
has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL No. 1
- The
second applicant complained under Article 8 of the Convention that
payment of fees was unlawfully enforced against her, and that by
withdrawing relevant documents from the file the courts had prevented
her from obtaining redress from the Constitutional Court.
- Both
applicants also alleged a violation of Article 1 of Protocol No. 1
in that they had been unable to use the property at issue.
- 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 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. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The
first applicant claimed EUR 9,295 in respect of pecuniary damage and
EUR 1,660 in respect of non-pecuniary damage.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
It considers that the first applicant must have sustained
non-pecuniary damage. Having regard to its case-law on the subject
and to the fact that the first applicant obtained partial redress at
the domestic level, it awards EUR 1,660 as claimed.
B. Costs and expenses
- The
first applicant claimed EUR 332 for the costs and expenses incurred
before the Constitutional Court, EUR 491 for translation costs and
EUR 398 for various expenses incurred in the proceedings before the
ordinary courts.
- The
Government contested these claims, except for those concerning
translation costs.
- Having
regard to the materials in its possession and the Constitutional
Court's decision ordering reimbursement of the first applicant's
costs, the Court considers it reasonable to award the first
applicant, who was not represented by a lawyer, EUR 600 covering the
translation costs and out-of-pocket expenses incurred before the
Court.
C. Default interest
- 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
- Declares the complaint concerning the excessive
length of the proceedings in respect of the first applicant
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the first 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 1,660 (one thousand six hundred and sixty euros), plus any tax
that may be chargeable, in respect of non-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;
- Dismisses the remainder of the first applicant's
claim for just satisfaction.
Done in English, and notified in writing on 10 November 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
