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FOURTH
SECTION
CASE OF BÍRO v.
SLOVAKIA (No. 4)
(Application
no. 26456/06)
JUDGMENT
STRASBOURG
18 May
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 Bíro v. Slovakia (no. 4),
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
David Thór
Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
Mihai Poalelungi, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 27 April 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 26456/06) 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 a Slovak national, Mr Dušan
Bíro (“the applicant”), on 26 June 2006.
- The
Slovak Government (“the Government”) were represented by
their Agent, Mrs M. Pirošíková.
- On
8 July 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 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1951 and lives in Bratislava.
A. Proceedings concerning the applicant’s action
of 2003
- On
14 and 18 November 2003 the applicant lodged an action for damages
against the Bratislava II District Labour Office. Originally his two
identical submissions were given two file numbers and were assigned
to two judges. As from 16 December 2003 they were dealt with together
by one judge under one file number.
- The
Bratislava II District Court and the Bratislava Regional Court
examined a number of procedural issues. The applicant repeatedly
modified his action, requested that the Ministry of Labour and the
Ministry of Justice join the proceedings as defendants, challenged
the lack of impartiality of a judge, requested that the District
Court exempt him from the obligation to pay court fees and appoint a
legal-aid lawyer to represent him in the proceedings.
- On
6 August 2008 the applicant informed the District Court that his
legal-aid lawyer had died.
- On
27 November 2008 the District Court dismissed a part of the
applicant’s claim and discontinued the proceedings in respect
of the remaining part.
- On
7 January 2009 the mail with the above judgment sent to the
applicant’s lawyer was returned to the District Court. The
postal delivery report indicated that the lawyer had not collected
the mail.
- The
stamp on the judgment indicates that the latter became final on
23 January 2009.
- Following
the applicant’s request, the judgment was served on him on 19
May 2009. He appealed on 1 June 2009. The proceedings are pending.
B. Constitutional proceedings
- On
10 May 2006 the Constitutional Court declared the applicant’s
length of proceedings complaint inadmissible for non-exhaustion of
domestic remedies, concluding that the applicant had not complained
thereof to the President of the District Court. The complaint about
the assignment of the applicant’s case to another District
Court judge in 2003 was declared inadmissible as being manifestly
ill-founded.
- On
7 February 2008 his second complaint was declared inadmissible as
being manifestly ill-founded. The Constitutional Court acknowledged
that there had been a short period of inactivity in 2004 but
stated that this fact did not warrant the conclusion that the length
of the proceedings had been excessive. It held that the
applicant’s conduct had notably contributed to their duration
and due to his actions the District Court had been prevented from
proceeding with the case. It further rejected the complaint about the
assignment of the case to another judge as being manifestly
ill-founded.
- On
4 November 2008 the Constitutional Court rejected a third length of
proceedings complaint on the ground that it concerned the matter
already examined on 7 February 2008. It held that the period of
several months that had elapsed was too short to examine the
complaint. It also noted that that conclusion did not prevent the
Constitutional Court from examining the applicant’s fresh
complaint in the future.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION IN RESPECT OF THE LENGTH OF THE PROCEEDINGS
- 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
- The
Government argued that the overall duration of the proceedings had
not been unreasonable within the meaning of Article 6 § 1 of the
Convention. They also stated that the applicant should have lodged a
fresh constitutional complaint as regards the period subsequent to
the Constitutional Court’s decision of 4 November 2008.
- The
applicant reiterated his complaint.
18. The Court notes that at the time of the Constitutional Court’s
decision of 4 November 2008 the proceedings had been pending for
almost five years. It also notes that, during that period, several
procedural issues were examined by the Regional Court for a few
months. On 7 February 2008 the Constitutional Court concluded that
the period of the District Court’s proceedings had not been
excessive and on 4 November 2008 it rejected another complaint of the
applicant as being essentially the same. Those decisions did not
produce effects which would have allowed the Court to conclude that
the applicant had lost his status as a victim within the meaning of
Article 34 of the Convention. Since the applicant was unable to
obtain redress before the Constitutional Court in respect of a
substantial part of the proceedings, the Court concludes that, as
regards the period of the proceedings following the Constitutional
Court’s decision of 4 November 2008, he was not required to
repeatedly seek redress before the Constitutional Court as suggested
by the Government (see also Becová v. Slovakia
(dec.), no. 23788/06, 18 September 2007 and Dudičová
v. Slovakia, no. 15592/03, § 65, 8 January 2009).
- The
applicant lodged the civil action on 14 November 2003 and the
proceedings have not yet ended. It follows that the period under the
Court’s consideration has lasted more than six years and three
months at two levels of jurisdiction.
- The Court notes 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.
B. Merits
- The
Government agreed with the Constitutional Court’s decision of 7
February 2008 in that there had been no delays in the proceedings. In
their view, the applicant’s conduct contributed to the length
of the proceedings in that he had lodged an unclear action which had
been modified on a number of occasions. They argued that a single
delay did not change that position.
- The
applicant disagreed.
- 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).
- The
Court accepts the Government’s argument that the applicant’s
conduct had contributed to the length of the proceedings in the
present case. That fact, however, cannot justify the overall duration
of the proceedings of more than six years at two levels of
jurisdiction. Having examined all the materials submitted to it and
having regard to its case-law on the subject, the Court considers
that the length of the proceedings has been excessive and has failed
to meet the “reasonable time” requirement.
There
has accordingly been a violation of Article 6 § 1.
II. REMAINING COMPLAINTS RAISED UNDER ARTICLES 3, 6, 14
AND 17 OF THE CONVENTION
- Under
Article 6 § 1 the applicant complained that in 2003 the file had
been assigned to another judge and that he had never been informed
about the reason. He also complained that, as the judgment of
27 November 2008 had not been served on him, he was
prevented from appealing against it. The applicant also invoked
Articles 3, 14 and 17 and argued that, in comparison with other
individuals, the courts had not dealt speedily with his case. He also
complained that the courts had proceeded in an unfair manner.
- However,
in the light of all the materials in its possession, and in so far as
the matters complained of are within its competence
or have not already been addressed in the context of the above
finding of a breach of Article 6 § 1 of the Convention,
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. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- Lastly, the applicant complained that he had no
effective remedy at his disposal within the meaning of Article 13 of
the Convention which provides that:
“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
1. The length of the proceedings
- The
Government argued that the applicant had at his disposal an effective
remedy, namely a complaint under Article 127 of the Constitution.
- The
applicant reiterated his complaint.
- The
Court notes 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 remaining complaints
- As regards the alleged absence of an effective remedy
in respect of the remaining complaints, 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
those 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.
B. Merits
- The Court has repeatedly held that the remedy under
Article 127 of the Constitution is “effective” within the
meaning of Article 13 (see, among many others, Šidlová
v. Slovakia, no. 50224/99, § 77, 26 September
2006).
- The circumstances of the present case are different.
At the time of the Constitutional Court’s rejection of the
applicant’s third complaint on 4 November 2008, the
proceedings had been pending for almost five years and the applicant
was not able to obtain redress from the Constitutional Court for that
substantial part of the proceedings. The Court considers that the
remedy under Article 127 of the Constitution, as applied in the
present case, cannot be regarded as “effective” within
the meaning of Article 13 of the Convention (see also Dudičová
v. Slovakia, no. 15592/03, § 83, 8 January 2009 and,
mutatis mutandis, Tur v. Poland, no. 21695/05, §§ 67 68,
23 October 2007).
There has accordingly been a violation of Article 13.
IV. 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 1,727 euros (EUR) in respect of pecuniary damage
and EUR 10,000 in respect of non-pecuniary damage.
- The
Government contested these claims.
- 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, it considers that the applicant must have
sustained non pecuniary damage. Ruling on an equitable basis, it
awards award him EUR 3,000 under that head.
B. Costs and expenses
- The
applicant also claimed EUR 54 for the costs and expenses incurred
before the Court.
- The
Government did not contest this claim.
-
The Court considers it reasonable to award the full sum claimed.
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 complaints under Articles 6 §
1 and 13 of the Convention concerning the length of the proceedings
and the absence of an effective remedy in that respect admissible and
the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
13 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 3,000 (three thousand euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii)
EUR 54 (fifty-four euros) 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 the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 18 May 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
