FRIGO v. SLOVAKIA - 16111/11 - Committee Judgment [2013] ECHR 937 (08 October 2013)

In the case of Frigo v. Slovakia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

          Luis López Guerra, President,
          Ján Šikuta,
          Nona Tsotsoria, judges,
and Marialena Tsirli, Deputy Section Registrar,

Having deliberated in private on 17 September 2013,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 16111/11) 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 Vladislav Frigo (“the applicant”), on 7 March 2011.

2. The applicant was represented by Mr P. Arendacký, a lawyer practising in Bratislava. The Slovak Government (“the Government”) were represented by their Agent, Ms M. Pirošíková.

3. On 12 July 2012 the application was communicated 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 1946 and lives in Bratislava.

5. On 9 April 1997 the applicant sued his employer for unpaid salary before the Bratislava II District Court (file no. 10 C 90/1997).

6. Having held two hearings in 1997, the District Court concluded that an expert opinion was necessary.

7. On 6 August 2001 the District Court ordered an expert opinion.

8. Following nine hearings between 2003 and 2005, the District Court adopted a judgment on 14 April 2005.

9. The Bratislava Regional Court, upon the applicant’s appeal of 11 July 2005, quashed the first-instance judgment and remitted the case to the District Court for a new determination. The case file was returned to the District Court on 3 April 2008.

10. On 8 April 2010 the District Court delivered a judgment on the merits. It also ruled that the costs and expenses would be decided upon once the judgment on the merits became final. The judgment on the merits became final on 28 May 2010.

11. On 22 July 2010 the applicant complained to the Constitutional Court about the length of the proceedings before both the Bratislava II District Court and the Bratislava Regional Court.

12. On 25 August 2010 the Constitutional Court rejected the applicant’s complaint (case no. III. ÚS 316/2010). The Constitutional Court examined separately the length of the proceeding on the merits and the length of the proceedings concerning the costs and expenses. It held that the proceedings on the merits had ended by a final judgment before the applicant had lodged his constitutional complaint, i.e. after the state of his legal uncertainty had been eliminated. He thus failed to respect its established practice requiring the introduction of such complaints when the proceedings were pending. As to the proceedings concerning the costs and expenses, the Constitutional Court observed no delays and also pointed out that the applicant had not expressly complained of this part of the proceedings.

13. On 23 September 2010 the District Court gave a decision on the costs and expenses which was upheld by the Regional Court on 28 June 2011. The decision of the Regional Court was served on the applicant’s lawyer on 24 August 2011.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

14. The applicant 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

15. The Government relied on the reasons for the Constitutional Court’s decision.

16. They further admitted that the complaint about the length of the proceedings was not manifestly ill-founded.

17. As regards the Government’s argument that the applicant had not exhausted domestic remedies, the Court reiterates that under Article 35 § 1 of the Convention applicants are required to use remedies which are available and sufficient to afford redress in respect of the breaches alleged. That rule is based on the assumption, reflected in Article 13 of the Convention - with which it has close affinity -, that there is an effective remedy available in respect of the alleged breach in the domestic system (see Akdivar and Others v. Turkey, 16 September 1996, §§ 65-66, Reports of Judgments and Decisions 1996-IV).

18. As regards applications against Slovakia concerning the length of proceedings the Court has held that a complaint under Article 127 of the Constitution is an effective remedy which applicants are required to use for the purpose of Article 35 (see Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01, 60226/00, 22 October 2002). It has further held that applicants should formulate their constitutional complaint in a manner permitting the Constitutional Court to examine the overall duration of the proceedings (see Obluk v. Slovakia, no. 69484/01, § 62, 20 June 2006, with further references) and, in accordance with the Constitutional Court’s practice, lodge it before the proceedings complained of have ended (see Mazurek v. Slovakia (dec.), no. 16970/05, 3 March 2009).

19. In the present case, the applicant complained before the Constitutional Court of the overall duration of the proceedings as a whole. Unlike in the case of Mazurek cited above, in the applicant’s case the proceedings were still pending in respect of the costs and expenses and had been dealt with by both the District Court and the Regional Court after the Constitutional Court’s decision. However, the Constitutional Court excluded from its review a substantial part of the proceedings on the ground that the ordinary courts were no longer dealing with the case on the merits. It examined solely the length of the proceedings on the costs and expenses and found no delays therein.

20. The Court has already held that it has been its practice to examine the overall length of the proceedings complained of and that the remedy under Article 35 of the Convention is susceptible of providing appropriate and sufficient redress only where it allows for an examination of the proceedings in their entirety (see Bako v. Slovakia (dec.), no. 60227/00, 15 March 2005). As regards applications against Slovakia, such is not likely to be the case where, as the Constitutional Court’s decision in the present case suggests, separate complaints had to be lodged at different points in time in respect of each possible stage of the proceedings. Such approach would exclude a review of the duration of the proceedings in their entirety and is susceptible of leading to a result inconsistent with the Court’s practice.

21. In view of the above, the Court does not accept the Government’s objection.

22. The proceedings complained of lasted more than fourteen years and four months at two levels of jurisdiction.

23. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

24. 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 reiterates that special diligence is necessary in employment disputes (Ruotolo v. Italy, judgment of 27 February 1992, Series A no. 230-D, p. 39, § 17).

25. 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).

26. 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. 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. APPLICATION OF ARTICLE 41 OF THE CONVENTION

27. 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

28. The applicant claimed 27,000 euros (EUR) in respect of non-pecuniary damage.

29. The Government found the claim to be overstated.

30. The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 10,500 under that head.

B. Costs and expenses

31. The applicant did not submit a claim for the costs and expenses incurred before the domestic courts and for those incurred before the Court. Accordingly, the Court considers that there is no call to award him any sum on that account.

C. Default interest

32. The Court considers it appropriate that the default interest rate 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

(a) that the respondent State is to pay the applicant, within three months, EUR 10,500 (ten thousand five 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;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 8 October 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena Tsirli Luis López Guerra
Deputy Registrar President

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