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FOURTH
SECTION
CASE OF SOFTEL spol. s r.o. v. SLOVAKIA (no. 1)
(Application
no. 32427/06)
JUDGMENT
STRASBOURG
16
December 2008
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 SOFTEL spol. s r.o. v. Slovakia (no. 1),
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 25 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 32427/06) 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 the company SOFTEL spol. s r.o.
(“the applicant”), on 2 August 2006.
- The
applicant was represented by Mr V. Vidra, the sole owner and managing
director of the company. The Slovak Government (“the
Government”) were represented by their Agent, Mrs M.
Pirošíková.
- On
4 March 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 is a private limited
liability company with its registered office in Zilina.
A. Proceedings concerning the
applicant's action against third persons for unjust enrichment
- On
1 June 1995 the applicant filed an action with the Zilina District
Court. It sued eight persons for a sum of money on grounds of unjust
enrichment.
- On
20 November 1998 the case was transferred to the Čadca District
Court and on 22 August 2001 to the Martin District Court upon
decisions of the Zilina Regional Court as to bias on the part of
judges.
- Subsequently,
the Martin District Court obtained further evidence including expert
opinions, delivered several procedural decisions and held four
hearings. On 21 April 2008 it delivered a judgment. The parties
appealed and in August 2008 the applicant informed the Court that the
proceedings were still pending.
B. Constitutional proceedings
- On
5 April 2006 the Constitutional Court (Third Chamber) found that the
Martin District Court had violated, and that the District Courts in
Zilina and in Čadca had not 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 in that expert
evidence had to be adduced and related proceedings had been pending.
The applicant company by its conduct had contributed to the length of
the proceedings. The Martin District Court had failed to proceed in
an appropriate manner and was responsible for delays totalling 16
months.
- The
Constitutional Court awarded SKK 40,000 (the equivalent of 1,066
euros at that time) to the applicant as just satisfaction in respect
of non-pecuniary damage. It also ordered the Martin District Court 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 his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government did not contest that argument but argued that the
application was inadmissible for the reasons set out below.
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 its 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. As to the period subsequent to the
Constitutional Court's judgment, the applicant company had not
exhausted domestic remedies by lodging a fresh complaint with the
Constitutional Court.
- The
applicant disagreed and argued that the amount of just satisfaction
granted by the Constitutional Court was disproportionately low in the
circumstances of the case. It maintained that the District Courts in
Zilina and in Čadca had also violated its right to a hearing
without unjustified delay. The applicant further pointed out periods
of inactivity and ineffective performance (for example, the belated
appointment of an expert) on the part of all three District Courts
involved.
- The
Court notes that at the time of the Constitutional Court's judgment
the proceedings had been pending for 10 years,
10 months and 7 days. The Constitutional Court, when
determining the just satisfaction, took into account the subject
matter of the dispute, its complexity and length, and above all,
decided on the amount with regard to the established period of
inactivity on the part of the Martin District Court.
- The
Constitutional Court awarded the applicant the equivalent of EUR
1,066 as just satisfaction in respect of the proceedings examined by
it. 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-..., and Cocchiarella v. Italy [GC], no. 64886/01,
§§ 65-107, ECHR 2006-...).
- In
view of the above, in respect of the proceedings up to the
Constitutional Court's judgment, the Court concludes that the
applicant did not lose its status as a victim within the meaning of
Article 34 of the Convention.
- Since
the effects produced by the decision 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 have recourse again to the remedy under Article 127 of the
Constitution in respect of the proceedings subsequent to the
Constitutional Court's judgment (see the recapitulation of the
relevant principles in Becová v. Slovakia (dec.),
no. 23788/06, 18 September 2007).
- In
this context the Court also considers it relevant that the present
application was introduced without substantial delay after the
Constitutional Court's judgment (see Španír v.
Slovakia, no. 39139/05, § 47, 18 December 2007, and
Weiss v. Slovakia, no. 28652/03, § 33, 18 December 2007).
The application, accordingly, cannot be rejected for non-exhaustion
of domestic remedies.
- The
period to be taken into consideration began on 1 June 1995 and has
not yet ended. The proceedings have thus lasted more than 13 years
and 4 months, whereas the first decision on the merits of the case
was delivered after more than 12 years and 10 months.
- The
Court notes that 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 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, ibid.).
- 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. At the time of the
Constitutional Court's judgment the proceedings had been pending for
more than 10 years and 10 months without the merits of the case
having been determined. Since the Constitutional Court's judgment the
proceedings have continued for more than 2 years and 6 months and
according to the information available they are still pending.
- The
Court concludes that the overall length of the period under
consideration has been incompatible with the applicant's right to a
hearing within a reasonable time.
- There
has accordingly been a breach of Article 6 § 1.
II. 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 6,500 euros (EUR) in respect of non-pecuniary
damage.
- The
Government considered the claim overstated and left the matter to the
Court's discretion.
- The
Court considers that the applicant must have sustained non-pecuniary
damage. Ruling on an equitable basis, and having regard to its
case-law on the subject and to the fact that the applicant company
obtained partial redress in the proceedings before the Constitutional
Court, it awards it EUR 4,150 under that head.
B. Costs and expenses
- The
applicant also claimed EUR 571 for the costs and expenses incurred
before the Court.
- The
Government had no objection to the award of a demonstrably incurred
sum.
- 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 claimed in full, i.e. EUR
571 for the proceedings before the Court.
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 application admissible;
- 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 4,150 (four thousand one hundred and fifty euros), plus any
tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 571 (five hundred and seventy-one 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 the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 16 December 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
