THIRD SECTION

CASE OF UNTERMAYER v. SLOVAKIA

(Application no. 6846/08)

JUDGMENT

STRASBOURG

9 July 2013

This judgment is final. It may be subject to editorial revision.

In the case of Untermayer 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 18 June 2013,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 6846/08) 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 Arpád Untermayer (“the applicant”), on 29 January 2008. The applicant was initially represented by Mr J. Drgonec, a lawyer practicing in Bratislava.
2.  The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.
3.  On 28 June 2010 the application was communicated to the Government. Following the receipt of the Government’s observations and the applicant’s observations in reply, his lawyer informed the Court that he no longer represented the applicant.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1954 and lives in Senec.
A.  Civil proceedings (file nos. 15C 130/98, 33C 47/99 and 4 C 723/08)
1.  Action
5.  On 7 May 1998 the applicant and his wife brought an action against two individuals, a married couple, arguing that the defendants had failed to pay the claimants a part of the price agreed upon for the sale of the claimants’ house to the defendants. Accordingly, the claimants sought an order for the payment of the equivalent of some 25,700 euros (EUR).
For the ease of reference, hereinafter in this judgment the applicant will be referred to in singular although his actions may have concerned him jointly with his wife.
6.  The claim was first registered at the Bratislava II District Court under file no. 15C 130/98.
7.  On 7 June 1998 the Bratislava II District Court discontinued the proceedings on account of the applicant’s failure to pay the court fees. The applicant subsequently filed an appeal and – in response to a court’s request – provided further and better particulars of his appeal specifying that, on 6 October 1998, the court fees had been paid.
8.  On 30 November 1998 the Bratislava Regional Court quashed the decision of 7 June 1998 and remitted the case to the Bratislava II District Court for examination on the merits.
9.  A hearing called for 24 February 1999 had to be adjourned because it had proven impossible to serve the summons on the defendants. Following the establishment of their new address, on 23 April 1999 the case was transferred to the Bratislava III District Court for reasons of territorial jurisdiction. It was registered there under file no. 33 C 47/99.
10.  On 2 December 1999, following a hearing held on the same day, the proceedings were stayed pending the outcome of related civil proceedings (file no. 19 Cb 64/97) which were concluded with final and binding effect on 22 December 2002 (see paragraph 28 below).
11.  Meanwhile, on 4 February and 3 March 2000, respectively, the applicant had requested that the Bratislava III District Court had issued an interim measure preventing the defendants from making dispositions in respect of the house concerned.
12.  Between 8 February 2001 and 28 March 2007 the Bratislava III District Court listed six hearings. Two of them were not attended by the applicant’s lawyer and two of them were not attended by the applicant. One of the hearings was adjourned in view of the parties’ desire to settle and they were ordered to inform the court of the results of their negotiations within 30 days. As they had not done so, the court had to send two reminders. Meanwhile the case had been reassigned to a new judge.
13.  On 13 June 2007, following a hearing held on the same day, the Bratislava III District Court again decided to stay the proceedings pending the outcome of a set of enforcement proceedings, which were pending before that court at that time under file no. 34 E 1015/03. In those proceedings, the applicant was the defendant and one of the present defendants was the claimant (see paragraphs 28 et seq. below).
14.  On 24 September and 28 December 2007, respectively, the applicant appealed against the decision of 13 June 2007 to stay the proceedings and requested that the Bratislava III District Court schedule a hearing.
15.  On 1 January 2008 the case-file was transmitted to the Pezinok District Court in the context of reorganisation of the judiciary and it was registered there under file no. 4 C 723/08.
16.  On 28 November 2008 the applicant requested the Pezinok District Court to schedule a hearing.
17.  On 12 December 2008 the Pezinok District Court transmitted the case-file to the Bratislava Regional Court for a decision on the applicant’s appeal of 24 September 2007 against the decision of the Bratislava III District Court of 13 June 2007 to stay the proceedings, which had not been determined by then. At the Bratislava Regional Court, the appeal was registered under file no. 7 Co 48/08.
18.  On 23 November 2009 the applicant complained to the President of the Pezinok District Court about undue delay in the proceedings. In a letter of reply dated 17 December 2009 the Vice-President of the Pezinok District Court informed the applicant that the case-file was still with the Bratislava Regional Court. Her court was thus not in a position to proceed with the case and the applicant’s complaint was ill-founded.
19.  On 7 January and 24 February 2010, respectively, the applicant requested the Bratislava Regional Court to proceed with his case and complained to its President about undue delay in the proceedings.
20.  In a letter of reply dated 23 March 2010 the Vice-President of the Bratislava Regional Court acknowledged that there had been unjustified delays in the proceedings, apologised to the applicant, and informed him that he would keep the progress in the case under observation in order to  ensure that no further unjustified delay occurred.
21.  On 31 March 2010 the Bratislava Regional Court determined the applicant’s appeal against the decision of the Bratislava III District Court of 13 June 2007 to stay the proceedings by quashing it. In consequence, the case was remitted to the Pezinok District Court for examination on the merits.
22.  On 4 November 2010, following a hearing held on the same day, the Pezinok District Court dismissed the applicant’s action. It found that the applicant’s claim had been set off against an adjudicated counter-claim of one of the defendants which he had bought from a creditor of the applicant. The principal amount of the counter-claim in question was equal to the amount of the applicant’s claim and consisted of a penalty that the applicant was to pay to the creditor for breach of a contract under which the applicant was to carry out certain construction works for the creditor.
23.  On 19 September 2012 the Bratislava Regional Court dismissed the applicant’s appeal and upheld the judgment of 4 November 2010 concurring fully with the conclusions of the Pezinok District Court. No appeal lay against the Regional Court’s judgment.
2.  Constitutional complaints
24.  On 16 May 2007 the applicant lodged a complaint under Article 127 of the Constitution, alleging a violation of his right to a hearing within a reasonable time in the proceedings in his action of 7 May 1998 before the Bratislava III District Court, and seeking damages in the amount of EUR 75,000.
25.  On 4 September 2007 the Constitutional Court found a violation of the applicant’s right, awarded him the equivalent of EUR 890 in just satisfaction, and ordered the Bratislava III District Court to proceed without further undue delay.
The Constitutional Court examined exclusively the part of the proceedings having taken place before the Bratislava III District Court and took into account its established case-law to the effect that no delays could have occurred in the proceedings while they were stayed.
As regards the amount of just satisfaction, the Constitutional Court took into consideration the fact that the applicant had partly contributed to the length of the proceedings by his and his lawyer’s absence at hearings and by the late notification of the outcome of the friendly-settlement negotiations.
26.  On 18 March 2009 the applicant lodged a fresh constitutional complaint about the length of the proceedings directing it both against the Bratislava III District Court and the Pezinok District Court and seeking EUR 83,000 in damages.
27.  On 29 September 2009 the Constitutional Court declared the complaint inadmissible on the ground that, as regards the Bratislava III District Court, the matter was a res iudicata by its judgment of 4 September 2007 and, as to the Pezinok District Court, the applicant had failed to satisfy the requirement of exhaustion of ordinary remedies by raising the complaint first before the president of that court.
B.  Enforcement proceedings (file nos. 34 Er 1015/2003 and 15 Er 1777/08)
1.  Enforcement
28.  On 16 May 2003 one of the buyers of the applicant’s house lodged a petition against the applicant for enforcement of a claim that he had bought from the applicant’s creditor (see paragraph 22 above). The claim had been adjudicated by the Bratislava III District Court in its judgment of 3 December 2001 (file no. 19 Cb 64/97), as upheld on appeal by the Bratislava Regional Court on 12 June 2002 (file No. 24 Cob 98/02), which had become final and binding on 22 December 2002.
29.  The petition was registered with the Bratislava III District Court under file no. 34 Er 105/2003 and, on 23 May 2003, that court authorised a judicial enforcement officer (“JEO”) to carry out the enforcement. At the JEO’s office, the petition case was registered under file no. Ex 144/03.
30.  On 29 May 2003 the JEO issued a notice of enforcement, by which he notified the applicant that enforcement proceedings had commenced against him and that the enforcement would be carried out by forcible sale of real property belonging to the applicant.
31.  On 19 June and 29 October 2003, respectively, the applicant lodged a protest against the enforcement and its costs and the protest was dismissed by the Bratislava III District Court. The decision became final and binding on 23 March 2004.
32.  On 14 June 2004 the JEO issued a warrant for the enforcement by sale of the applicant’s real property mentioned above.
33.  Between 12 July 2005 and 28 March 2007 the applicant’s wife also filed a protest against the enforcement; the value of the property was established by an expert; the applicant lodged an objection against the expert’s report, requested three times that the enforcement be deferred, and in the absence of a decision once requested that all of these applications be judicially determined.
34.  On 15 February 2007 the property in question was sold at a public auction. The JEO subsequently sought an approval of the sale by the Bratislava III District Court. At the same time, he transmitted the applicant’s objections against the sale to the District Court for a judicial determination.
35.  On 6 November 2007 the applicant submitted a complaint to the Bratislava III District Court about the length of the enforcement proceedings. He has received no answer.
36. On 1 January 2008, in the context of reorganisation of the judiciary, the case-file was transmitted to the Pezinok District Court where it was registered under file no. 15 Er 1777/08.
37.  On 23 February 2009 the Pezinok District Court allowed the applicant’s objections and declined its approval for the sale on the grounds that no decision had been taken in respect of the various applications by the applicant and his wife (see paragraph 33 above) and that the expert report as to the value to the sold property was flawed, for which the expert had been found disciplinarily liable.
The proceedings appear thereby to have ended.
2.  Constitutional complaint
38.  On 1 April 2009 the applicant lodged a constitutional complaint about the length of the enforcement proceedings directing it both against the Bratislava III District Court and the Pezinok District Court and seeking some EUR 106,000 in damages.
39.  In preparation for the examination of the complaint, the Constitutional Court invited the applicant to substantiate whether he had complained about the contested delays in the proceedings to the presidents of the courts concerned. In response, the applicant’s lawyer submitted a copy of the applicant’s submission of 6 November 2007 and a document by the postal service certifying that an item had been posted on that day addressed to the Constitutional Court.
40.  On 10 September 2009 the Constitutional Court declared the complaint inadmissible. It noted that according to observations by the Bratislava III District Court in reply to the applicant’s constitutional complaint, the District Court had no knowledge of any submission by the applicant of 6 November 2007.
The Constitutional Court further observed that the postal document submitted by the applicant merely showed that an item had been sent but not that it had been received and thereby effectively submitted to the president of the court concerned.
The Constitutional Court concluded that the applicant had failed to show that he had raised his complaint first before the presidents of the courts in question. He could accordingly not be considered as having satisfied the requirement of exhaustion of ordinary remedies.
In addition, the Constitutional Court observed that the applicant himself had requested several times that the enforcement be deferred which was not indicative of his proclaimed desire to have the proceedings completed early.
THE LAW
I.  ALLEGED VIOLATIONS OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION
41.  The applicant complained that the length of the proceedings had been excessive; that the award of damages by the Constitutional Court in its judgment of 4 September 2007 had been inadequate and that, in that respect, its judgment had been arbitrary, unfair and contrary to his property rights.
The Court considers that these complaints most naturally fall to be examined under Articles 6 § 1 and 13 of the Convention which, in so far as relevant, read as follows:
Article 6 § 1:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
Article 13:
“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.  Unilateral declaration
42.  The Government made a distinction between the proceedings in the applicant’s action and the enforcement proceedings. As regards the former, they submitted a unilateral declaration dated 22 February 2011, which reads as follows:
“The Government acknowledge both the applicant’s status of the victim within the meaning Article 34 of the Convection and the unreasonable duration of the domestic civil proceedings in which the applicant was involved.
I, Marica Pirošíková, the Agent of the Government [...] before the [Court], declare that the Government offer to pay ex gratia to the applicant [...] the sum of EUR 3,000 (three thousand euros). This sum shall cover any pecuniary and non-pecuniary damage together with any costs and expenses incurred by the applicant with respect to the violation of his right under the Convention.
The Government would suggest that the above information be accepted by the Court as “any other reason” justifying the striking out of the case of the Court’s list of cases, as referred to in Article 37 § 1 (c) of the Convention.
In the event of the Court’s decision pursuant to Article 37 § 1 of the Convention, the Government undertake to pay the applicant the declared sum within the three months from the date of notification of the decision. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.”
43.  The applicant disagreed considering the offered amount grossly inadequate and arguing that the case involved questions of principle.
44.  The Court observes that the Government’s proposal leads to a separation of the applicant’s action from the enforcement proceedings against him.
However, as transpires form the ordinary courts’ judgments on the merits of the applicant’s action, the claims asserted by him were closely linked to and in fact intertwined with the subject matter of the enforcement proceedings.
The Court further considers that the staying of the proceedings in the action pending the outcome of the enforcement proceedings only confirms the contextual and procedural link between those two sets of proceedings.
In these circumstances, the Court finds that a separation of them by means of the Government’s unilateral declaration is not conducive to the examination of the overall length of the proceedings as a whole in line with the Court’s practice (see Bako v. Slovakia (dec.), no. 60227/00, 15 March 2005).
45.  In addition, the Court observes that the Government’s unilateral declaration only concerns the Article 6 aspect of the case and not its aspect under Article 13 of the Convention.
46.  In view of these considerations the Government’s unilateral declaration must be rejected.
B.  Admissibility
47.  The Government argued that the applicant had had at his disposal effective remedies, which he had failed to exhaust. In that respect, they advanced two separate lines of argument.
First, as to the enforcement proceedings, relying on the Constitutional Court’s decision of 10 September 2009 and citing in extenso its reasoning, the Government contended that the applicant had failed to bring his constitutional complaints in accordance with the applicable formal requirements. In particular, he had failed to show that prior to his constitutional complaint, the applicant had properly asserted his complaint before the presidents of the enforcement courts concerned.
Second, as regards both sets of proceedings, the Government argued that the applicant had failed to seek redress in respect of the alleged violation of his Article 6 rights by way of an action for damages under the State Liability Act.
48.  The applicant disagreed arguing that the complaint to the president of the court was not an effective remedy and that the Constitutional Court’s practice in that respect was divergent. Moreover, and in any event, he had used that remedy before resorting to the Constitutional Court in respect of which the latter had reached arbitrary conclusions. As to the State Liability Act, the applicant submitted that even the Constitutional Court, the jurisdiction of which was also subsidiary, had not required the exhaustion of this remedy before a constitutional complaint about length of proceedings.
49.  The Court observes that in its judgments in the cases of Ištván and Ištvánová v. Slovakia (no. 30189/07, §§ 52-55, 63-99 and 106, 12 June 2012) and Komanický v. Slovakia (no. 6) (no. 40437/07, §§ 51-54, 60-96 and 102, 12 June 2012) it examined at length and ultimately dismissed substantially the same objections as the Government raises in the present case. It finds no reasons for reaching a different conclusion now.
The Government’s objections are accordingly dismissed.
50.  The Court considers that the two intertwined sets of proceedings have to be considered together. From that perspective, the period to be taken into consideration began on 7 May 1998 and ended on 19 September 2012. It thus lasted more than 14 years. Over this period, ordinary courts at two levels of jurisdiction were involved with three different courts of the first instance. Enforcement courts at two levels were also involved with two different courts of first instance.
51.  The Court notes this part of 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.
C.  Merits
52.  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).
53.  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).
54.  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.
55.  Furthermore, in view of the conclusions reached above as regards exhaustion of domestic remedies in respect of the complaint under Article 6 § 1 of the Convention, the Court finds that there has likewise been a violation of Article 13 of the Convention.
II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
56.  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.”
57.  By way of a letter of 6 December 2010 the applicant was invited to submit his just satisfaction claims by 17 January 2010.
58.  On 15 January 2010 the applicant submitted a claim for EUR 26,000 in respect of non-pecuniary damage and EUR 1,271.60 for legal, postal, administrative and other expenses.
59.  On 31 January 2010 the applicant made a submission in which he reduced his original claim in respect of postal expenses from EUR 60 to EUR 35 and submitted a receipt according to which he had paid his lawyer a further sum of EUR 19.50 in reimbursement of postal expenses incurred on the applicant’s behalf by the latter.
60.  On 15 February 2010 the President of the Section decided, pursuant to Rule 38 § 1 of the Rules of Court, that the applicant’s submission of 31 January 2010 should be included in the case-file for the consideration of the Court.
A.  Damage
61.  The Government opposed the claim considering it to be overstated.
62.  The Court considers that the applicant must have sustained non‑pecuniary damage. Having regard to the amount awarded to him by the Constitutional Court and ruling on an equitable basis, it awards him EUR 3,100 under that head.
B.  Costs and expenses
63.  The Government objected that the submission of 15 February 2010 was submitted out of time and that the relevant part of the applicant’s claim should be accordingly dismissed.
64.  Other than that, the Government referred to the Court’s judgment in the case of Young, James and Webster v. the United Kingdom ((Article 50), 18 October 1982, § 15, Series A no. 55) and submitted that effective protection of human rights required human rights lawyers to be moderate in the fees that they charged to applicants and that only reasonably incurred legal costs should be compensated.
65.  The Court finds that the submission of 31 January 2010 was essentially a precision of a timely made claim and its factual substantiation by way of documentary evidence.
66.  Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the sum of EUR 1,250 covering costs under all heads.
C.  Default interest
67.  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.  Rejects the Government’s unilateral declaration;

2.  Declares the application admissible;

3.  Holds that there has been a violation of Article 6 § 1 of the Convention;

4.  Holds that there has been a violation of Article 13 of the Convention;

5.  Holds
(a)  that the respondent State is to pay the applicant, within three months, the following amounts:
(i)  EUR 3,100 (three thousand one hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii)  EUR 1,250 (one thousand two hundred and fifty 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;

6.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 9 July 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Marialena Tsirli	Luis López Guerra
	Deputy Registrar	President