[New search]
[Contents list]
[Printable RTF version]
[Help]
FOURTH
SECTION
CASE OF TOMČÁNI v. SLOVAKIA
(Application
no. 19011/05)
JUDGMENT
STRASBOURG
29
September 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 Tomčáni 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 8 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 19011/05) 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 Ján
Tomčáni (“the applicant”), on 9 May
2005.
- The
applicant was represented by Mr V. Mikuš, a lawyer practising
in Zvolen. The Slovak Government (“the
Government”) were represented by their Agent, Mrs M.
Pirošíková.
- On
26 May 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 1949 and lives in Hontianske Nemce.
A. Pre-trial criminal
proceedings
- On
4 October 1996 the applicant was charged with fraud by the Zvolen
District Investigation Police Office (Okresný úrad
vyšetrovania policajného zboru SR Zvolen), now the
Office of the Justice and Criminal Police of the Zvolen District
Police Directorate (Úrad justičnej a kriminálnej
polície Okresného riaditeľstva Policajného
zboru Zvolen). The Zvolen District Prosecutor dismissed a
complaint lodged by the applicant against the charge. Following an
application by the applicant, the Regional Prosecutor in Banská
Bystrica decided not to exclude the district prosecutors from dealing
with the case.
- On
17 March 1997 the criminal proceedings were stayed as the absence of
the injured party's representative (resident in the USA) prevented
the relevant authority from clarifying the case. The proceedings were
resumed on 19 January 1998. They were also stayed between 19 March
1998 and 3 April 2000 and between 25 September 2000 and 2 April
2001.
- On
15 January 2002 the District Prosecution Service appointed a guardian
for the injured party. The appointment was confirmed by the Regional
Prosecution Service.
- In
the course of the pre-trial proceedings the Hungarian authorities
were twice requested for legal assistance in order to obtain further
evidence from witnesses in Hungary.
- The
applicant asked the Prosecutor General three times to review the
course of the proceedings before the Zvolen District Prosecutor and
the Office of the Justice and Criminal Police of the Zvolen District
Police Directorate.
- On
1 June 2007 the proceedings were stayed as the absence of one witness
prevented the authority from proceeding with the case. The
investigator took several steps with a view to establishing the place
of residence of the witness concerned.
- On
14 March 2008 the proceedings were resumed again and the witness was
heard. The investigator collected further information.
- On
19 June 2008 the investigator recommended the Zvolen District
Prosecutor's Office to discontinue the criminal proceedings. On
6 November 2008 the Zvolen District Prosecutor's Office
discontinued the proceedings on the ground that
no offence had been committed.
B. First set of
constitutional proceedings
- On
29 September 2005 the Constitutional Court found that the Office of
the Justice and Criminal Police of the Zvolen District Police
Directorate had violated the applicant's right under Article 48 §
2 of the Constitution to a hearing without unjustified delay.
- The
Constitutional Court held that the case was complex from the factual
point of view (international element). It stated that as the personal
rights and freedoms of the accused person were affected in the course
of the criminal proceedings the “reasonable time”
criterion should be interpreted strictly. The applicant's conduct had
not contributed to the length of the proceedings. Owing to the
relevant authority's ineffective performance (the proceedings were
stayed for 41 months) and inactivity (28 months in total), avoidable
delays had occurred.
- The Constitutional Court awarded the applicant SKK
60,000 (the equivalent of 1,553 euros at that time) as just
satisfaction in respect of non-pecuniary damage. It ordered the
Office of the Justice and Criminal Police of the Zvolen District
Police Directorate to reimburse the applicant's legal costs.
C. Second
set of constitutional proceedings
- On
4 September 2007 the Constitutional Court found that during the
period after its first finding of 29 September 2005 the Office of the
Justice and Criminal Police of the Zvolen District Police Directorate
had violated the applicant's right under Article 48 § 2 of the
Constitution to a hearing without unjustified delay.
- The Constitutional Court held that the case was
complex from the factual point of view (international element).
However, the factual complexity of the case could not justify the
length of the relevant period. It had regard to the fact that eleven
years had passed since the applicant had been charged and that it had
already found a violation of the applicant's right. The applicant's
conduct had not contributed to the length of the proceedings. The
relevant authority again remained inactive and ineffective.
- The Constitutional Court awarded the applicant SKK
20,000 (the equivalent of 593 euros at that time) as just
satisfaction in respect of non-pecuniary damage. It ordered the
Office of the Justice and Criminal Police of the Zvolen District
Police Directorate to avoid any further delay in the proceedings and
to reimburse the applicant's legal costs.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- 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 ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
A. Admissibility
- The
Government objected that, in respect 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 and paid without undue delay was
not manifestly inadequate in the circumstances of the case. They
further argued that the second Constitutional Court's finding had a
preventive effect as no further delays had occurred in the subsequent
period.
-
In any event, the applicant had not exhausted domestic remedies as it
had been open to him to lodge a fresh complaint with the
Constitutional Court in respect of the proceedings following the
second Constitutional Court's finding.
- The
applicant disagreed and argued that the amount of just satisfaction
granted by the Constitutional Court had been disproportionately low
in the circumstances of the case and that the second Constitutional
Court's finding had not had a preventive effect.
- The Court notes that at the time of the second
Constitutional Court's finding the proceedings had been pending for
10 years and more than 11 months in their pre-trial stage. The
Constitutional Court awarded the applicant the equivalent of EUR
2,146 as just satisfaction in respect of the proceedings examined by
it and, by its second finding, ordered the liable authority to avoid
any further delay in the proceedings.
- The
amount awarded by the Constitutional Court cannot be considered as
providing 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-V, and
Cocchiarella v. Italy [GC], no. 64886/01, §§
65-107, ECHR 2006-V).
- In
view of the above, in respect of the proceedings up to the time of
the second Constitutional Court's finding, the Court concludes that
the applicant did not lose his status as a victim within the meaning
of Article 34 of the Convention.
- Since
the effects produced by the decisions of the Constitutional Court did
not satisfy the criteria applied by the Court, the applicant was not
required, for the purposes of Article 35 § 1 of the Convention,
to use again the remedy under Article 127 of the Constitution in
respect of the proceedings subsequent to the second Constitutional
Court's finding (see the recapitulation of the relevant principles in
Becová v. Slovakia (dec.), no. 23788/06,
18 September 2007).
- The
proceedings started on 4 October 1996 and were discontinued on 6
November 2008 when the District Prosecutor's Office delivered its
decision. They thus lasted 12 years and more than 1 month in their
pre-trial stage.
- 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
- 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 (see, among
many other authorities, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999-II)
-
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 Pélissier and Sassi, cited above).
- Having
examined all the material submitted to it and having regard to its
case-law on the subject, 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. In particular,
at the time of the second Constitutional Court's finding the criminal
proceedings had been pending for 10 years and more than 11 months in
their pre-trial stage. Following the second Constitutional Court's
finding the proceedings continued for 1 year and more than 2 months.
During that period no substantial delay occurred.
- The
Court concludes that the overall length of the period under
consideration was incompatible with the applicant's right to a
hearing within a reasonable time.
- There
has accordingly been a breach of Article 6 § 1.
II. THE APPLICANT'S OTHER COMPLAINTS
- The
applicant further invoked Article 6 § 3 (a) of the Convention
and alleged that as a result of the length of the proceedings
his property rights had been infringed.
- However,
in the light of all the material in its possession, and in so far as
the matters complained of are within its competence, 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 applicant claimed 9,958.18 euros (EUR) in respect of pecuniary
damage and EUR 80,000 for non-pecuniary damage.
- The
Government contested the pecuniary damage claimed by the applicant
and argued that even assuming that the applicant suffered any
pecuniary damage it had been open to him to claim compensation from
the State.
- The
Government considered the claim for
non-pecuniary damage exaggerated. They left the matter to the Court's
discretion and requested the Court to take into account the just
satisfaction awarded by the Constitutional Court.
-
The Court does not discern any causal link between the violation
found and the pecuniary damage alleged; it therefore rejects this
claim. On the other hand, and having regard to the amount of
compensation already awarded to the applicant at the national level,
it awards the applicant EUR 3,550 in respect of non-pecuniary damage.
B. Costs and expenses
-
The applicant claimed EUR 1,066.18 for the costs and expenses
incurred in the domestic proceedings, EUR 3,000.93 for those incurred
before the Court and EUR 163.30 for the translation costs.
-
The Government requested the Court to dismiss the claim for costs for
legal representation incurred in the pre-trial stage of criminal
proceedings. The Government considered the claim for costs incurred
before the Court exaggerated and had no objection against the award
of the translation costs.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 1,300 under this
head.
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 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 3,550 (three thousand five
hundred and fifty euros), plus any tax that may
be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,300 (one thousand three 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 unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 29 September 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
