FOURTH SECTION

CASE OF BACZOVÁ v. SLOVAKIA

(Application no. 18926/07)

JUDGMENT

STRASBOURG

19 October 2010

This judgment is final but it may be subject to editorial revision.

In the case of Baczová v. Slovakia,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
	Lech Garlicki, President,
	Ján Šikuta,
	Vincent Anthony de Gaetano, judges,
and Fatoş AracıDeputy Section Registrar,
Having deliberated in private on 28 September 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in  against  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by .
2.  The Slovak Government (“the Government”) were represented by their Agent, Mrs M. Pirošíková.
3.  On  the President of the Fourth Section decided to give notice of the application to the Government. In accordance with Protocol no. 14, the application was allocated to a Committee of three Judges.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1960 and lives in Košice.
A. Proceedings concerning the applicant's action of 2001
5.  On 6 March 2001 the applicant lodged a civil action against several individuals and State organs, requesting that the Košice II District Court declare null and void a contract by which she had transferred her title to a flat to two of the defendants. She also asked the court to order another defendant to vacate the flat and leave it at the applicant's disposal.
6.  The file was transferred to the Košice I District Court on 19 April 2001 for reasons of jurisdiction.
7.  On 10 February 2003 she complained to the President of the Košice I District Court about the length of the proceedings.
8.  On 3 July 2003 the District Court admitted another defendant to the proceedings. The latter appealed and the file was transferred to the Košice Regional Court.
9.  On 22 September 2003 the applicant complained to the President of the Regional Court about the length of the proceedings.
10.  On 7 October 2003 the Regional Court upheld the decision of 3 July 2003.
11.  On 25 April 2005 the District Court found in the applicant's favour. It discontinued the proceedings in respect of two State organs. Following an appeal, the case was transferred to the Regional Court on 25 October 2005.
12.  On 19 September 2006 the applicant inquired about any obstacles preventing the Regional Court from dealing with the case.
13.  On 9 October 2010 she complained to the President of the Regional Court about the length of the proceedings.
14.  On 31 May 2007 the Regional Court quashed the judgment, except of the part concerning the discontinuation of the proceedings, and remitted the case to the District Court.
15.  On 4 May 2009 the District Court found against the applicant.
16.  The applicant appealed and the proceedings are still pending.
B. Constitutional proceedings
17.  On 23 December 2005 the applicant complained to the Constitutional Court about the overall length of proceedings.
18.  On 7 July 2006 the Constitutional Court declared the applicant's length of proceedings complaint inadmissible. It held that the part of the complaint concerning the proceedings before the District Court was manifestly ill-founded, as this period of the proceedings had already ended and the District Court could no longer violate Article 6 § 1 of the Convention and its constitutional equivalent.
19.  It expressed the view that the applicant had not exhausted the available domestic remedies in respect of the period of the proceedings before the Regional Court, as she had not lodged a complaint of their length to the President of the Regional Court. The decision stated that the applicant's complaint of 22 September 2003 could not be considered as such remedy because it had been lodged during another stage of the proceedings, when the Regional Court was examining the first-instance decision to admit another defendant to the proceedings.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
20.  The applicant complained about the length of the proceedings. In substance she invoked 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
21.  The Government argued that the applicant had not sought redress before the Constitutional Court in accordance with the applicable formal requirements and the Constitutional Court's practice. As regards the first‑instance proceedings, they noted that the applicant had complained about this phase when the court of appeal had already been dealing with the case. They noted that it was the Constitutional Court's practice to examine the length of proceedings complaints only when the proceedings were still pending before the authority liable for the alleged violation at the moment when the complaint was lodged with the Constitutional Court, and to declare inadmissible the complaints which were introduced after the proceedings complained of had been concluded. They further stated that such practice had also been accepted by the Court (see also Obluk v. Slovakia, no. 69484/01, §§ 61-62, 20 June 2006 and Mazurek v. Slovakia (dec.), no. 16970/05, 3 March 2009).
22.  As regards the phase of the proceedings before the Regional Court, they observed that the applicant had not used the available remedies, that is a complaint with the President of the Regional Court. The applicant's complaint of 2003 had been lodged at a different stage of decision-making process.
23.  The applicant reiterated her complaint.
24.  The Court observes thatthe applicant, contrary to the case of Mazurek,cited above, formulated her constitutional complaint in a manner permitting the Constitutional Court to examine the overall duration of the proceedings (see Obluk, cited above). Additionally, at the time of the lodging of her constitutional complaint the proceedings had not yet been concluded by a final decision (see, a contrario, Mazurek, cited above). The Constitutional Court thus could have addressed their overall length, in line with the Court's approach when examining similar cases (see SOFTEL, spol. s r. o. v. Slovakia (no. 2), no. 32836/06, § 21, 16 December 2008).In a number of cases the Constitutional Court, indeed, adopted such approach (see also Bako v. Slovakia(dec.), no. 60227/00, 15 March 2005; Šedý v. Slovakia, no. 72237/01, §§ 66-67, 19 December 2006; and SOFTEL, spol. s r. o. v. Slovakia (no. 1), no. 32427/06, § 8, 16 December 2008). However, in the present case it excluded from its review a substantial phase of the proceedings on the ground that the District Court was no longer dealing with the case.
25.  In view of the above, the Court does not accept the Government's argument that the applicant should have separately complained before the Constitutional Court of the individual parts of the proceedings in her case at the time when they were pending before each of the authorities involved (see A. R., spol. s r. o. v. Slovakia, no. 13960/06, §§ 35-38, 9 February 2010).
26.  The Court further observes that the applicant complained about the Regional Court's inactivity already in 2003. It notes that at that time the Regional Court was examining an appeal lodged by one of the defendants against the District Court's decision to admit another defendant to the proceedings. It thus observes that the applicant complained about the Regional Court's inactivity at the time when the latter was dealing with the case. In view of the above it does not accept the Government's argument that this complaint could not be taken into account because it was lodged at a different stage of the proceedings.
27.  The Government's objections must therefore be dismissed.
28.  The Court observes that at the time of the Constitutional Court's decision the civil proceedings had been pending for five years and four months at two levels of jurisdiction. They are still pending. Their overall duration is thus approximately nine years and a half.
29.  It follows that this part of the application cannot be rejected for non‑exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention and it 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
30.  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).
31.  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).
32.  Having examined all the materials submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.
There has accordingly been a breach of Article 6 § 1.
II.  ARTICLE 13 OF THE CONVENTION
33.  Even though the applicant did not invoke Article 13 of the Convention, the Court considers it appropriate to examine whether the applicant had at her disposal an effective remedy for her length of proceedings complaint, as required by that provision. Article 13 reads:
“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
34.  The Government argued that the applicant's constitutional complaint was capable of leading to an examination of the overall length of the proceedings, had the applicant lodged it in accordance with the formal requirements.
35.  The applicant did not express an opinion on the matter.
36.  The Court notes that this part of the application 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
37.  The Court takes the view that the remedy under Article 127 of the Constitution is likely to provide appropriate and sufficient redress to applicants where it allows for examination of the entire duration of the proceedings complained of.
38.  Since the applicant in the present case complained to the Constitutional Court about the overall duration of the proceedings and since, unlike in other decisions, the Constitutional Court excluded from its review their substantial part, the Court considers that the applicant's right to an effective remedy has not been respected (see A. R., spol. s r. o. v. Slovakia, no. 13960/06, §§ 59-60, 9 February 2010).
There has therefore been a violation of Article 13 of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
39.  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
40.  Without claiming any specific amount the applicant requested “damages for all those years”.
41.  The Government claimed that there was no causal link between the violation alleged and the pecuniary damage claimed. They left the issue of non-pecuniary damage to the Court's discretion.
42.  Even in the absence of quantification, the Court accepts that the applicant has suffered non-pecuniary damage which would not have been sufficiently compensated by the finding of a violation. Making its assessment on an equitable basis and having regard to the circumstances of the case, the Court awards the applicant EUR 7,200.
B.  Costs and expenses
43.  The applicant did not submit a claim for costs and expenses. Accordingly, the Court considers that there is no call to award her any sum under this head.
C.  Default interest
44.  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
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;

4.  Holds
(a)  that the respondent State is to pay the applicant, within three months EUR 7,200 (seven thousand two hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount 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 19 October 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Lech Garlicki	Deputy 	President