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FOURTH
SECTION
CASE OF MOŠAŤ v. SLOVAKIA
(Application
no. 27452/05)
JUDGMENT
STRASBOURG
21
September 2010
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 Mošať 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 31 August 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 27452/05) 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 Milan Mošať
(“the applicant”), on 15 July 2005.
- The
Slovak Government (“the Government”) were represented by
their Agent, Mrs M. Pirošíková.
- On
9 March 2009 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 § 1).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1964 and lives in Bratislava.
Enforcement proceedings
1. Proceedings file nos. Er 1998/00 and Er 2005/00
- On
1 and 11 August 2003 the Bratislava IV District Court dismissed the
applicant's objections to a notification of enforcement and its
costs. The decisions were served on the applicant on 13
September 2003.
2. Proceedings file no. 15 E 22/00
- On
10 January 2000 enforcement proceedings were initiated against the
applicant before the Bratislava IV District Court.
- On
three occasions the District Court submitted prematurely the case
file to the Bratislava Regional Court. On 30 May 2003 the Regional
Court decided not to exclude the District Court judge for bias.
- On
10 December 2003 the District Court discontinued the proceedings and
the decision was confirmed by the Regional Court on
24 September 2004.
B. Constitutional
proceedings
- On
3 December 2003 the applicant complained to the Constitutional Court
about the length of the above proceedings before the Bratislava IV
District Court. On 28 April 2004 the Constitutional Court accepted
his length of proceedings complaint in respect of proceedings 15 E
22/00 and rejected the remainder as having been lodged outside the
statutory two month time-limit.
- On
18 August 2004 the Constitutional Court found that the Bratislava IV
District Court had violated the applicant's right to a hearing
without unjustified delay. It ordered the District Court to avoid
further delays and to reimburse the applicant's legal costs. The
Constitutional Court further concluded that the finding of a
violation represented in itself sufficient just satisfaction in the
circumstances of the case. It reasoned its decision not to award any
just satisfaction with reference to the position of the applicant in
the enforcement proceedings, the applicant being the party
liable. It further noted that it had been the
applicant's conduct that had given rise to enforcement of the
decision in issue. It further reasoned that, if the applicant had
complied with the enforcement decision, the enforcement proceedings
would never have had to be brought.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 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. With reference to the
length of the proceedings the applicant also alleged a violation of
Article 6 § 3 (b) of the Convention. The provisions invoked read
as follows:
1
“In the determination of his civil rights and obligations ...,
everyone is entitled to a ... hearing within a reasonable time by [a]
... tribunal...”
3
“Everyone charged with a criminal offence has the following
minimum rights
(b) to have adequate time and facilities for the
preparation of his defence.”
Admissibility
1. Complaint under Article 6 § 1 of the Convention
(a) Enforcement
proceedings file nos. Er 1998/00 and Er 2005/00
- The applicant failed to complain about undue delay in
the above enforcement proceedings to the Constitutional Court in
accordance with the applicable procedural requirements, i.e.
within the prescribed time-limit.
- It follows that this complaint must be rejected under
Article 35 §§ 1 and 4 of the Convention for non-exhaustion
of domestic remedies.
(b) Enforcement
proceedings file no. 15 E 22/00
- The
Government expressed the view that 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, had ordered the District
Court to proceed without further delay and also had ordered
reimbursement of the applicant's legal costs.
- The
applicant argued that he had voluntarily complied with his
obligations resulting from the enforcement decision. He contested the
necessity of initiation of the enforcement proceedings and alleged
that they had lasted five years until the domestic courts finally
discontinued them.
- The
Court notes that at the time of the Constitutional Court's finding,
the District Court, in respect of which the applicant complained to
the Constitutional Court, had been responsible for a period of
approximately three years and nine months.
- The
Court reiterates that whether the redress afforded to the applicant
was adequate and sufficient having regard to Article 41 of the
Convention 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, §§
65-107, ECHR 2006-V). These include, most notably, the amount of the
compensation awarded to the applicant and the effectiveness of the
preventive measure applied (see Sika v. Slovakia (no. 3),
no. 26840/02, § 54, 23 October 2007).
- Although
the present application concerns enforcement proceedings directed
against the applicant, the Court cannot overlook the fact that the
period imputable to the District Court was approximately three years
and nine months. Moreover, the domestic courts, upon the applicant's
request, discontinued the enforcement proceedings. Furthermore, the
Constitutional Court itself had acknowledged the District Court's
responsibility for delays in those proceedings. Having regard to the
facts of the case and to the principles established in its case-law,
the Court considers that the redress obtained by the applicant at the
domestic level was not adequate and sufficient. In view of the above,
it concludes that the applicant did not lose his status as a victim
within the meaning of Article 34 of the Convention.
- 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.
2. Complaint under Article 6 § 3 (b) of the
Convention
- 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 right guaranteed under Article 6 §
3 (b) of the Convention.
- 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.
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, 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 Constitutional Court's
finding, the period under consideration had lasted approximately
three years and nine months at one level of jurisdiction. Albeit no
delays occurred in the subsequent period, the Court nevertheless
considers, having regard to its case-law, that the length of the
proceedings in the instant case was excessive and failed to meet the
“reasonable time” requirement.
- There
has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant further complained that he had no effective remedy at his
disposal within the meaning of Article 13 of the Convention, which
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.”
1. As regards the complaint in respect of the proceedings
file no. 15 E 22/00
- The
Court reiterates that Article 13 of the Convention guarantees the
availability at the national level of a remedy to enforce the
substance of the Convention rights and freedoms. The applicant used
the possibility to lodge a complaint under Article 127 of the
Constitution, which was at his disposal, and the Constitutional Court
found a violation of his right to a hearing without unjustified
delay guaranteed by the constitutional equivalent of Article 6 §
1 of the Convention. The fact that the redress obtained from the
Constitutional Court was not sufficient for Convention purposes does
not render the remedy under Article 127 of the Constitution in the
circumstances of the present case incompatible with Article 13 of the
Convention (see Bošková v. Slovakia, no.
21371/06, § 25, 2 June 2009; Janík
v. Slovakia, no. 5952/05, §
36, 27 October, 2009).
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
2. As regards the remaining complaints
- As
regards the alleged absence of an effective remedy in respect of the
remaining complaints under the Convention, the Court reiterates that
Article 13 applies only where an individual has an “arguable
claim” to be the victim of a violation of a Convention right
(see Boyle and Rice v. the United Kingdom, judgment of 27
April 1988, Series A no. 131, § 52). The Court
found these complaints inadmissible. Accordingly, the applicant did
not have an “arguable claim” and Article 13 is,
therefore, not applicable.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected pursuant to 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 80,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government considered the claim exaggerated.
- The
Court awards the applicant EUR 2,100 in respect of non pecuniary
damage.
B. Costs and expenses
- The
applicant submitted no claim for costs and expenses.
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 indicated by file no. 15 E 22/00 admissible
and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention in respect of the above-mentioned
proceedings;
- 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, EUR 2,100 (two
thousand one 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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 21 September 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
