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FOURTH
SECTION
CASE OF GERSTBREIN v. SLOVAKIA
(Application
no. 17252/04)
JUDGMENT
STRASBOURG
21
April 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 Gerstbrein v. Slovakia,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
Ján Šikuta,
Mihai
Poalelungi,
Nebojša Vučinić,
judges,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 31 March 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 17252/04) 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 a Slovak national, Mr Peter
Gerstbrein (“the applicant”), on 7 May 2004.
- The
applicant was represented by Mr R. Belanský, a lawyer
practising in Košice. The Slovak Government
(“the Government”) were represented by their Agent, Mrs
M. Pirošíková.
- On
2 April 2008 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
applicant was born in 1952 and lives in Košice.
- He
was the successful plaintiff in civil proceedings for payment against
an individual which ended with a judgment of the Košice II
District Court of 6 August 1998.
- On
3 February 1999 enforcement proceedings were brought against the
applicant's debtor (file no. Ex 4/99).
- The
debtor submitted his objections to the enforcement and its costs to
the executions officer. On 24 March 1999 the latter transferred
the objections to the District Court for decision (file no. Er
85/99). The objections were dismissed on 16 September
2003.
- On 6 August 2003 the applicant complained to the
Constitutional Court about delays in the proceedings pending under
file no. Er 85/99. On 5 November 2003 the Constitutional Court
found a violation of the applicant's right under Article 48 § 2
of the Constitution to a hearing without unjustified delay, awarded
him SKK 25,000 (equivalent to 604 euros (EUR) at that time) in
respect of non-pecuniary damage and ordered reimbursement of his
legal costs. It did not order the District Court to proceed without
further delay on the ground that a decision on the debtor's
objections had already been taken.
- On 13 April 2005 the executions officer returned his
authorisation for enforcement to the District Court with the
applicant's consent, as the debtor had no property with which he
could satisfy the applicant's claim. The enforcement proceedings
thus ended.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the District Court's inactivity in the
proceedings concerning the debtor's objections (file no. Er 85/99)
had prevented him from having the judgment enforced. He also claimed
that, as a result, he had suffered material damage. The applicant
relied on 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. Length of the proceedings
- The
Government argued that, in respect of the period of the proceedings
examined by the Constitutional Court, the 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 and the amount of just
satisfaction awarded was not manifestly inadequate in the
circumstances of the case. According to the Government, there were no
delays in the enforcement proceedings in the period subsequent to the
Constitutional Court's judgment.
- The
applicant disagreed.
- The
Court observes that the enforcement proceedings started on 3 February
1999 and ended on 13 April 2005. Having regard to the fact that the
applicant complained before the Constitutional Court exclusively
about the length of the proceedings concerning the debtor's
objections to the enforcement (file no. Er. 85/99), the Court will
consider the period of 4 years and 6 months during which
the District Court examined that issue.
- The
Court notes that, in respect of that period, the Constitutional Court
awarded the applicant the equivalent of EUR 604 as just satisfaction
in respect of non-pecuniary damage. This amount cannot be considered
to have provided adequate and sufficient redress to the 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, in respect of the proceedings examined by the
Constitutional Court, it concludes that the applicant did not lose
his status as a victim within the meaning of Article 34 of the
Convention (see, for example, Eliáš v. Slovakia,
no. 21326/07, § 24, 18 March 2008, or Bič v. Slovakia,
no. 23865/03, § 37, 4 November 2008).
- The
Court 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.
2. The remaining complaint
- The applicant further
complained that he could not have the judgment of 1998 enforced. The
Court notes that the enforcement ended in 2005 due to the fact that
the debtor did not have any property with which he could
satisfy the applicant's claim. It recalls in this connection that the
execution of a judgment given by any court must be regarded as an
integral part of the “trial” for the purposes of Article
6 (see the Hornsby v. Greece judgment of 19 March 1997,
Reports of Judgments and Decisions 1997-II, p. 510, §
40). That does not mean that a State could be held responsible for
non-enforcement of a judgment due to the insolvency of the debtor
(Sanglier v. France, 50342/99, § 39, 27 May 2003).
However, when the authorities are obliged to act in order to enforce
a judgment, as in the instant applicant's case, and
they fail to do so, their inactivity can engage the State's
responsibility on the ground of Article 6 § 1 of the Convention
(Scollo v. Italy, judgment of 28 September 1995, Series A
no. 315 C, § 44). However, and in so far as the
applicant is not complaining about the length of the above-mentioned
proceedings concerning the debtor's objections, it is to be noted
that the applicant did not claim
compensation under the State Liability Act of 2003 (Act
no. 514/2003 Coll.) for defective or negligent enforcement on the
part of the executions officer (see Šebeková and
Horvatovičová v. Slovakia, no. 73233/01, § 52,
14 February 2006), and did not, ultimately, seek redress before
the Constitutional Court.
It
follows that this part of the application must be rejected under
Article 35 §§ 1 and 4 of the Convention for
non-exhaustion of domestic remedies.
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 material submitted to it and having regard to its
case-law on the subject, the Court concurs with the Constitutional
Court that the length of the proceedings concerning the debtor's
objections to the enforcement was excessive and failed to meet the
“reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
II. 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
- In
respect of pecuniary damage the applicant claimed EUR 4,066, which
corresponded to the amount to be enforced at the domestic level, plus
default interest. He also claimed an additional amount of EUR 314.
In respect of non-pecuniary damage the applicant claimed EUR
3,319.
- 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 these claims.
On the other hand, the Court considers that the applicant must have
sustained non-pecuniary damage. Ruling on an equitable basis, and
having regard to the fact that the applicant obtained partial redress
in the proceedings before the Constitutional Court, it awards EUR
1,300 under that head.
B. Costs and expenses
- The
applicant also claimed EUR 365 for the costs and expenses incurred
before the Court.
- The
Government contested the claim, noting that the applicant did not
support it by providing any bills or invoices.
- The Court will make an award in respect of costs and
expenses in so far as these were actually and necessarily incurred
and were reasonable as to quantum. The Court considers it reasonable
to award the sum of EUR 365, as claimed by the applicant, who was
represented by a lawyer (see Çelik and İmret v.
Turkey, no. 44093/98, § 68, 26 October 2004).
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 length of
the proceedings 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 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 1,300 (one thousand three hundred euros), plus any tax that
may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 365 (three hundred and sixty-five 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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 21 April 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
