FOURTH SECTION

CASE OF KOŠICKÝ AND OTHERS v. SLOVAKIA

(Application no. 11051/06)

JUDGMENT

STRASBOURG

11 January 2011

This judgment is final but it may be subject to editorial revision.
 
In the case of Košický and Others v. Slovakia,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
	Lech Garlicki, President,
	Ján Šikuta,
	Vincent A. de Gaetano, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 6 December 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 11051/06) 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 the Slovak nationals, Mr Ľuboš Košický (“the first applicant”), Mrs Anna Košická (“the second applicant”) and Mr Dušan Kubala (“the third applicant”), on 14 March 2006.
2.  The applicants were represented by Mrs M. Kollárová, a lawyer practising in Bratislava. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Mrs M. Pirošíková.
3.  On 2 June 2009 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 applicants were born in 1974, 1956 and 1961 respectively and live in Tvrdošín.

1. Civil proceedings	

5.  On 27 September 2000 the first applicant initiated civil proceedings before the Bratislava I District Court against a company claiming a sum of money.
6.  On 28 March 2003 the District Court issued an interim measure upon the first applicant's request of 3 October 2002. The defendant appealed.
7.  On 24 September 2003 the Bratislava Regional Court quashed the decision and remitted the case to the District Court.
8.  On 23 January 2004 the second and third applicants joined the proceedings as plaintiffs.
9.  On 10 August 2004 the District Court dismissed the first applicant's interim measure request. The applicants appealed.
10.  On 21 April 2005 the Regional Court quashed the first-instance decision and returned the case to the District Court.
11.  On 21 February 2006 the District Court issued the interim measure.
12.  On 4 August 2006 the District Court granted the action in part and dismissed the remainder. The first applicant appealed.
13.  On 31 October 2008 the Regional Court quashed the first-instance judgment and remitted the case to the District Court. The decision was served on the applicants' legal representative on 19 December 2008.
14.  On 5 November 2009 the District Court granted the action. The judgment became final in January 2010.

2. Constitutional proceedings

15.  On 15 March 2004 the first applicant lodged a complaint with the Constitutional Court complaining of delays in the proceedings before the Bratislava I District Court.
16.  On 30 June 2004 the Constitutional Court found that the District Court had violated the first applicant's right to a hearing within a reasonable time. It awarded him of 20,000 Slovakian korunas (SKK) as just satisfaction and ordered the District Court to proceed without further delays and to reimburse the first applicant's legal costs.
17.  On 9 March 2005 the applicants complained to the Constitutional Court that the District Court and the Regional Court in the proceedings on the merits had violated their right to a hearing within a reasonable time. They also complained that the courts had not respected the statutory time‑limit of thirty days for deciding on the interim measure.
18.  On 23 August 2005 the Constitutional Court dismissed the applicants' complaint. It found that the entire proceedings had lasted quite a long time. Nevertheless, the conduct of both courts could not be considered to have violated the applicants' right to a hearing within a reasonable time.
19.  On 15 August 2007 the first applicant complained to the Constitutional Court that the appeal proceeding before the Regional Court had lasted too long. On 11 October 2007 the Constitutional Court dismissed the first applicant's complaint as manifestly ill-founded. It held that the length of the appeal proceedings could not be considered unreasonable.
20.  In December 2008 the first applicant again complained to the Constitutional Court that the appeal proceedings before the Regional Court had lasted too long.
21.  On 21 January 2009 the Constitutional Court dismissed the first applicant's complaint as manifestly ill-founded. It held that on 15 December 2008, when the constitutional complaint was filed with the Constitutional Court, the court file had been returned to the District Court for a new decision. Thus, at the moment of the lodging of the constitutional complaint, the Regional Court could no longer violate the first applicant's rights.
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
22.  The applicants complained that length of the proceedings before the District Court and the Regional Court had been unreasonable. They also complained that the courts had failed to respect the statutory time-limit for taking a decision on the interim measure which affected the enforceability of their claim. They alleged a violation 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. The first applicant
23.  The Government submitted that despite the redress afforded to the first applicant at the domestic level his allegation of still being a victim of the alleged violation of his right to a hearing within a reasonable time was not manifestly ill-founded.
24.  The Court observes at the outset that it will examine the complaints under Article 6 § 1 of the Convention taken together.
25.  The Court notes that on 30 June 2004 the Constitutional Court found a violation of the first applicant's right to a hearing within a reasonable time and awarded him compensation for non-pecuniary damage and ordered the District Court to proceed with the case without undue delays.
26.  The Court further notes that during the subsequent course of the proceedings the first applicant turned three times to the Constitutional Court complaining anew of the protracted length of the proceedings. Two of his constitutional complaints were dismissed on the ground that the conduct of the courts at the respective levels of jurisdiction could not be considered to have violated the applicant's rights. In its last decision of 21 January 2009 the Constitutional Court rejected the first applicant's complaint holding that at the time of lodging the complaint the proceedings had no longer been pending before the Regional Court.
27.  The Court observes that the applicant's status as a victim depends on whether the redress afforded to him at the domestic level was adequate and sufficient having regard to Article 41 of the Convention. This issue falls to be determined in the light of the principles established under the Court's case-law (see, Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 178-213, ECHR 2006-V and Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006-V).
28. The Court notes that at the time of the last Constitutional Court's decision the proceedings had lasted with regard to the first applicant eight years and almost four months at two levels of jurisdiction.
29. On 30 June 2004 the Constitutional Court awarded the applicant SKK 20,000 in respect of non-pecuniary damage. This amount is disproportionately low, having regard to what the Court generally awards in similar cases.
30.  The redress obtained by the applicant at the domestic level with regard to the length of the proceedings up to the last Constitutional Court's decision was thus insufficient (see Scordino (no. 1), cited above, §§ 214‑215). The first applicant can accordingly still claim to be a “victim”.
31.  It follows 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 second and third applicants
32.  The Government argued that, having regard to the length of the proceedings in respect of the second and third applicants, the Constitutional Court's decision of 23 August 2005 was in compliance with the Convention. As to the further course of the proceedings following the Constitutional Court's decision, they submitted that the second and third applicants failed to have again recourse to the Constitutional Court under Article 127 of the Constitution.
33.  The applicants disagreed. They expressed the view that a new constitutional complaint would have had no prospect of success in terms of speeding up the proceedings since the first Constitutional Court's decision in which the Constitutional Court ordered the District Court to proceed without further delays had proved to have no accelerating effect. 
34.  The Court notes that the period to be taken into consideration starts running on the date when the second and third applicants became parties to the proceedings (see, for example, Sadik Amet and Others v. Greece, no. 64756/01, § 18, 3 February 2005, with further references).
35.  The second and third applicants joined the proceedings on 23 January 2004.
36.  The Court further notes that in the course of the proceedings the second and third applicants turned once to the Constitutional Court complaining that the proceedings before the District and the Regional Court had lasted too long. The Constitutional Court held that the length of the proceedings could not be considered unreasonable.
37.  The Court observes that at the time of the Constitutional Court's decision the proceedings had lasted for the second and third applicants one year and seven months at two levels of jurisdiction.
38.  Having regard to the above length of the proceedings the Court concurs with the conclusion reached by the Constitutional Court that in the instant case the length of the proceedings at the time of the Constitutional Court's decision of 23 August 2005 with respect to the second and third applicants was not excessive.
39.  The Court further reiterates that in certain situations applicants who have already sought redress before the competent domestic authority in respect of their complaint under Article 6 § 1 about excessive length of proceedings may be required to have recourse again to that remedy irrespective of whether or not they have filed an application under Article 34 of the Convention in the meantime. Such is the case, for example, when an applicant considers excessively long the period which lapsed after the first finding of the competent domestic authority (see, mutatis mutandis, Musci v. Italy [GC], no. 64699/01, § 141, ECHR 2006-V (extracts) and, in particular, when the first decision of the domestic authority is consistent with the Convention principles (see Becová v. Slovakia (dec.), no. 3788/06, 18 September 2007, with further references).
40.  Turning to the facts of the present case in the light of the above, the Court considers that the second and third applicants should have again sought redress before the Constitutional Court as regards their allegation that the proceedings had been excessively long.
41.  It follows that the second and third applicants' complaint must be rejected in accordance with Article 35 §§ 1, 3 and 4 of the Convention as being manifestly ill-founded and for non-exhaustion of domestic remedies.
B.  Merits
42.  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 applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
43.  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).
44.  Having examined all the material 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.
45.  Having regard to its case-law on the subject, the Court considers that in the instant case the whole length of the proceedings with respect to the first applicant which lasted more than nine years and three months at two levels of jurisdiction 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
46.  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
47.  The first applicant claimed 24,160 euros (EUR) in respect of pecuniary and EUR 15,000 in respect of non-pecuniary damage.
48.  The Government contested the claim for pecuniary damage as to its substance and submitted that the claim for non-pecuniary damage was overstated.
49.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.
50.  The Court considers that the first applicant must have sustained non‑pecuniary damage. Ruling on an equitable basis, it awards him EUR 4,500 under that head.
B.  Costs and expenses
51.  The first applicant also claimed EUR 20,142 for the costs and expenses incurred before the domestic courts and EUR 8,896 for those incurred before the Court. He further claimed EUR 37 for postal expenses and EUR 320 for translation costs.
52.  The Government requested that the part of the claim concerning the costs incurred before the ordinary courts be dismissed and left the matter to the Court's discretion as regards the remaining claims. 
53.  The Court reiterates that an award can be made in respect of costs and expenses only in so far as they have been actually and necessarily incurred by the applicant and are reasonable as to quantum (see Arvelakis v. Greece, no. 41354/98, § 34, 12 April 2001). Furthermore, Rule 60 § 2 of the Rules of Court provides that itemised particulars of any claim made under Article 41 of the Convention must be submitted, together with the relevant supporting documents or vouchers, failing which the Court may reject the claim in whole or in part.
54.  In the instant case, the Court observes that to the extent that the claimed costs for legal services have been incurred to prevent or rectify a violation of the Convention (see Záborský and Šmáriková v. Slovakia, no. 58172/00, § 46, 16 December 2003), the first applicant has not substantiated his claim by any relevant supporting documents establishing that he was under an obligation to pay for the costs of legal services or has actually paid for them. Accordingly, the Court does not award any sum for legal costs (see Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, §§ 133-134, ECHR 2004-XI).
55.  In the present case, regard being had to the violations found, the documents in its possession and the above criteria, the Court considers it reasonable to award the first applicant the sum of EUR 20 to cover postal expenses and EUR 320 for translation costs.
C.  Default interest
56.  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 in so far as it concerns the first applicant and inadmissible in so far as it concerns the second applicant and the third applicant;

2.  Holds that there has been a violation of the first applicant's right to a hearing within a reasonable time under Article 6 § 1 of the Convention;

3.  Holds
(a)  that the respondent State is to pay the first applicant, within three months EUR 4,500 (four thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage and EUR 340 (three hundred and forty euros) in respect of costs and expenses, plus any tax that may be chargeable to the first applicant;
(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;

4.  Dismisses the remainder of the first applicant's claim for just satisfaction.
Done in English, and notified in writing on 11 January 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Lech Garlicki	
	Deputy Registrar	President