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FOURTH
SECTION
CASE OF KIŠ v. SLOVAKIA
(Application
no. 3673/05)
JUDGMENT
STRASBOURG
13
October 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 Kiš 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 22 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 3673/05) 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 Jozef Kiš
(“the applicant”), on 11 January 2005.
- The
applicant was represented by Mr R. Zikla, a lawyer practising in
Košice. The Slovak Government (“the
Government”) were represented by their Agent, Mrs M.
Pirošíková.
- On
8 March 2007 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 1969 and lives in Košice.
- On
3 April 2001 the applicant filed an action with the Košice
II District Court. He claimed that the defendants had lost the right
to use a flat.
- The
first hearing in the case was held on 21 September 2004.
- On
23 September 2004, on the applicant's complaint, the Constitutional
Court found a violation of Article 6 § 1 of the Convention in
respect of the length of the above proceedings. It noted that the
case was not complex. The applicant's conduct had partially
contributed to their duration at the initial stage in that he had not
paid the court fees at the time of filing the action. The District
Court was responsible for delays totalling twenty-five months. The
Constitutional Court awarded the applicant 20,000 Slovakian korunas
(SKK) (the equivalent of 500 euros (EUR) at that time) as just
satisfaction. It also ordered the District Court to reimburse the
applicant's legal costs and to proceed with the case speedily.
- On
12 April 2005 the District Court found against the applicant.
- The
Košice Regional Court, on appeal, quashed the judgment
on 16 November 2005 and remitted the case to the District
Court.
- The
District Court asked the defendants and the applicant to submit
information and invited several doctors to indicate whether the
defendants' state of health would allow them to attend a hearing. A
hearing was held in November 2006 at which the applicant requested a
modification of his action. His request was subsequently rejected.
- The
District Court found against the applicant on 27 February 2007.
- On
15 October 2007 the Regional Court upheld the judgment. After having
been served on the parties to the proceedings, the decision became
final on 29 November 2007.
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...”
A. Admissibility
- The
Government did not contest that argument but expressed the view that,
in respect of the period 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 was not manifestly
inadequate in the circumstances of the case. As to the period
subsequent to the Constitutional Court's judgment, the applicant
should have lodged a fresh complaint under Article 127 of the
Constitution.
- The
applicant disagreed.
- The
Court notes that at the time of the Constitutional Court's judgment
the proceedings had lasted three years and six months at a
single level of jurisdiction. The Constitutional Court awarded the
applicant the equivalent of EUR 500 as just satisfaction in respect
of non-pecuniary damage suffered. As regards the relevant period
examined by the Constitutional Court, this amount cannot be
considered to have provided 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, the
Court concludes that the applicant did not lose his status as a
victim within the meaning of Article 34 of the Convention (see, for
example, Bič v. Slovakia, no. 23865/03, § 37,
4 November 2008). The Court further finds that he was not
required to again resort to the complaint procedure under Article 127
of the Constitution in respect of the period of the proceedings after
the Constitutional Court's judgment (see Becová v. Slovakia
(dec.), no. 23788/06, 18 September 2007).
- 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, cited above).
- Having regard to its case-law on the subject, the
Court concurs with the Constitutional Court that the length of the
proceedings up to the date of the Constitutional Court's judgment was
excessive and failed to meet the “reasonable time”
requirement. It observes that, after the Constitutional Court's order
to proceed with the case, the proceedings lasted a further three
years and two months and during that period, courts of two instances
dealt with the subject-matter of the case on two occasions. The Court
finds no further substantial inactivity either
on the part of the District Court or the Regional Court in the
proceedings subsequent to the Constitutional Court's judgment.
- Having
examined all the material submitted to it and 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.
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 EUR 15,822 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.
It considers that the applicant must have sustained
non-pecuniary damage. Ruling on an equitable basis, having regard to
its case-law on the subject and the fact that the applicant obtained
partial redress at the domestic level, it awards the applicant EUR
800.
B. Costs and expenses
- As
regards the proceedings before the Court, the applicant claimed EUR
664 for his legal representation, EUR 70 for translation costs and
EUR 9 for postal expenses. He further claimed EUR 1,236 for
costs and expenses incurred in the proceedings before the ordinary
courts.
- The
Government contested these claims, except those concerning postal
expenses and translation costs incurred in the Court's proceedings.
- The
Court considers it reasonable to award the applicant, who was
represented by a lawyer, the sum of EUR 743 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 800 (eight hundred euros), plus any tax that may be chargeable,
in respect of non-pecuniary damage;
(ii)
EUR 743 (seven hundred and forty-three 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 13 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
