OBLUK v. SLOVAKIA - 69484/01 [2006] ECHR 633 (20 June 2006)

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This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

1. The case originated in an application (no. 69484/01) 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 Slovakian national, Mr Alexander Obluk (“the applicant”), on 9 May 2001.

2. The applicant was represented by Mr I. Siakeľ, a lawyer practising in Martin. The Slovakian Government (“the Government”) were represented by their Agent, Mrs A. Poláčková.

3. On 15 March 2005 the Court declared the application partly inadmissible and decided to communicate the complaint concerning the length of the proceedings in the actions against entrepreneurs B. and K., company M. and in the action of 20 December 1996 against entrepreneur M. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time.

5. The applicant concluded contracts concerning the lease of business premises inter alia with the following tenants: an entrepreneur B., an entrepreneur K., a company M., and an entrepreneur M.

6. As these tenants failed to pay the rent, the applicant initiated the following proceedings against them.

7. On 18 June 1997 the applicant lodged the action with the Bratislava III District Court (Okresný súd). He sought an order for payment of unpaid rent, a contractual penalty for the late payment, and compensation in respect of the costs of the defendant’s eviction.

8. On 18 August 1997 the District Court invited the applicant to pay the court fee, which he did on 5 September 1997.

9. On 26 September 1997, in summary proceedings, the District Court issued a payment order (platobný rozkaz) in the applicant’s favour. A copy of the order was mailed to the defendant but was returned by the postal service to the District Court on 3 October 1997 with the mention “addressee unknown”.

10. On 27 November 1997 the District Court requested information about the defendant’s whereabouts from the Central Registry of Citizens in Banská Bystrica and the Municipal Registry of Citizens in Bratislava, which responded on 8 and 9 December 1997, respectively.

11. The District Court subsequently re-mailed a copy of the payment order of 26 September 1997 to the defendant’s address obtained from the above Registries. On 15 December 1997 it was returned with the mention “addressee unknown”.

12. On 14 January 1998 the District Court requested that the payment order of 26 September 1997 be served on the defendant by the police. The latter informed the District Court on 23 January 1998 that the defendant was not staying at the address officially registered as her permanent residence and that her current whereabouts were unknown.

13. On 30 January 1998 the District Court wrote to the Central Registry of Prisoners asking whether the defendant was currently detained on remand or serving a prison sentence. The Central Registry responded in the negative on 11 February 1998.

14. On 12 February 1998 the District Court quashed the payment order of 26 September 1997 under Article 173 §§ 1 and 2 of the Code of Civil Procedure holding that it had proven impossible to serve a copy of the order on the defendant in person.

15. On 26 January 2001 the District Court appointed an ex officio guardian to the defendant as the latter’s whereabouts were unknown and it was not possible to secure her participation in the proceedings.

16. On 14 February 2001, following a hearing held on the same day, the District Court granted the action. The judgment became final and enforceable in March 2001.

17. The applicant filed the action on 16 May 1996 with the Martin District Court. He sought an order for payment of a contractual penalty for the late payment of rent.

20. In a letter of 24 October 2002 the Registry of the Court informed the applicant of the amendment to the Constitution of the Slovak Republic which had entered into force on 1 January 2002 and which provided for a new remedy under the amended Article 127 of the Constitution in respect of delays in court proceedings. The applicant was requested to inform the Court whether he used or intended to use this remedy in view of the requirement to exhaust domestic remedies pursuant to Article 35 § 1 of the Convention.

21. In a letter of 4 March 2003 the Registry informed the applicant about the Court’s decision of 22 October 2002 to declare inadmissible the application in the case of Andrášik and Others v. Slovakia (app. nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01, 60226/00, ECHR 2002-IX) about the length of court proceedings on the ground that the applicants had failed to raise this complaint before the Constitutional Court under Article 127 of the Constitution, as amended from 1 January 2002.

22. On 15 April 2003 the District Court gave a supplementary judgment (doplňujúci rozsudok) in which it dismissed the defendant’s counterclaim, a ruling which the District Court had omitted to make in the original judgment of 15 November 2000.

23. The defendant challenged the judgments of 15 November 2000 and 15 April 2003 by appeals. On 20 May 2003 the District Court transmitted the case-file to the Žilina Regional Court (Krajský súd) for a determination of these appeals.

24. On 5 November 2003 the Regional Court overturned the judgment of 15 November 2000, dismissed the applicant’s action, and upheld the judgment of 15 April 2003.

25. In the meantime, on 9 June 2003, the applicant, who was represented by a lawyer, submitted a complaint under the amended Article 127 of the Constitution to the Constitutional Court (Ústavný súd). He formally directed the complaint against the District Court and alleged that it had violated his right under Article 48 § 2 of the Constitution to a hearing without unjustified delay.

26. On 19 November 2003 the Constitutional Court declared the complaint inadmissible. It observed that the part of the proceedings before the District Court, against which the complaint was formally directed, had ended with its judgments of 15 November 2000 and 15 April 2003 and with its carrying out of the related administrative tasks prior to submitting the case to the Regional Court for a decision on the defendant’s appeals. At the time when the constitutional complaint was lodged, the District Court was no longer dealing with the case which was already with the Regional Court. In these circumstances, an examination of the part of the proceedings before the District Court could no longer serve to expedite the proceedings. Thus, in line with its established practice, the Constitutional Court found that it was not called upon to examine the complaint.

27. On 2 June 1997 the applicant lodged the action with the Martin District Court. He claimed an amount of money by way of compensation for unpaid rent and a contractual penalty for the late payment of the rent.

28. On 10 December 2002 the District Court granted the action. The judgment became final and enforceable in February 2003.

29. In April 2003 the applicant, who was represented by a lawyer, lodged a complaint under Article 127 of the Constitution with the Constitutional Court. He asserted that the District Court had violated his constitutional right to a hearing without unjustified delay.

30. On 25 June 2003 the Constitutional Court declared the complaint inadmissible. It observed that it had been its established practice to examine constitutional complaints only if the alleged violation occurred, or was still continuing, at the time when the complaint was lodged. Since at the time of the introduction of the applicant’s complaint in April 2003 the proceedings at issue were already completed, the complaint could not be entertained.

31. The President of the Chamber, however, did not share the majority view and gave a dissenting opinion. He observed that the practice of not examining constitutional complaints of length of proceedings where the proceedings were no longer pending at the time of the introduction of the complaint had developed within the legal framework of the Constitution, as applicable prior to 1 January 2002. However, as from that date the Constitution was amended and the relevant rules were different. According to him, the continuous application of this practice under the new constitutional provisions had no basis in the applicable statutory rules, was contrary to the approach of the European Court of Human Rights and unacceptably impaired the complainant’s right of access to Constitutional Court.

D. Action of 20 December 1996 against entrepreneur M. and related constitutional complaint

32. On 20 December 1996 the applicant brought an action against M. in the District Court. He claimed an amount of money which was due under a contract of lease of 21 August 1995.

33. On 13 March 1997 the District Court issued a payment order in the applicant’s favour.

34. On 30 May 1997 the defendant filed a protest (odpor) against the payment order by virtue of which the order was ex lege vacated.

35. On 6 October 2000 the District Court stayed the proceedings pending the outcome of proceedings in another action which the applicant had brought on 19 April 1996 against entrepreneur M. on the basis of the above contract of 21 August 1995. It was observed that in the latter proceedings the questions of the defendant’s legal capacity to act and of the validity of the contract of 21 August 1995 were being determined. The determination of these questions was directly relevant for the present proceedings. Although this decision could have been appealed against within 15 days from its service on the appellant, no appeal has been lodged.

36. On 26 August 2002 the District Court commenced ex officio a separate set of proceedings aimed at determining the defendant’s legal capacity to act. These proceedings resulted in a ruling of the District Court of 20 October 2003 that the defendant lacked such capacity.

37. In the meantime, in May 2003, the applicant, who was represented by a lawyer, had filed a complaint about the length of the proceedings in his action of 20 December 1996 to the Constitutional Court.

38. On 1 October 2003 the Constitutional Court declared the complaint inadmissible on the ground that the applicant had failed to exhaust ordinary remedies by challenging the decision of 6 October 2000 by an appeal.

39. The proceedings in the action of 19 April 1996 ended with dismissal of the action by a judgment of the District Court of 28 April 2004. It was observed that the defendant had no legal capacity to act and that, therefore, the contract of 21 August 1995 was not valid and no claims could be based on it.

40. On 4 May 2004 the District Court held a hearing in the action of 20 December 1996. The hearing was adjourned until 6 May 2004 when the District Court pronounced its judgment dismissing the action.

41. The issue of the costs of the proceedings was finally resolved by a decision of the Regional Court of 8 February 2005.

42. Article 48 § 2 provides, inter alia, that every person has the right to have his or her case tried without unjustified delay.

43. Pursuant to Article 130 § 3 of the Constitution the Constitutional Court could commence proceedings upon the petition (podnet) presented by any individual or a corporation claiming that their rights had been violated.

44. On 23 February 2001 the National Council of the Slovak Republic enacted a constitutional law amending the Constitution. It was published in the Collection of Laws on 17 March 2001 under no. 90/2001.

45. Amendment no. 90/2001 repealed Article 130 § 3 of the Constitution with the effect as from 1 July 2001 and introduced a new Article 127 to the Constitution with effect as from 1 January 2002.

46. Pursuant to Article 127, as in force from 1 January 2002, natural and legal persons can complain (sťažnosť) about a violation of their fundamental rights and freedoms. Under this provision, the Constitutional Court has the power, in the event that it finds a violation of Article 48 § 2 of the Constitution, to order the authority concerned to proceed with the case without delay. It may also grant adequate financial satisfaction to the person whose constitutional rights have been violated as a result of excessive length of proceedings (for further details see, for example Andrášik and Others, cited above).

47. The implementation of the above constitutional provisions enacted with effect from 1 January 2002 is set out in more detail in sections 49 to 56 of the Constitutional Court Act (Law no. 38/1993 Coll.), as amended. The relevant amending Act (Law no. 124/2002 Coll.) was published in the Collection of Laws and entered into force on 20 March 2002.

48. Pursuant to section 20 (3), as a general rule, the scope of the Constitutional Court’s examination of a case is limited by the summary of the motion for commencement of the proceedings, as formulated in a standardised and prescribed form by the plaintiff.

49. Section 53 (3) provides that a constitutional complaint can be filed within a period of two months from the date on which the decision in question has become final and binding or on which a measure has been notified or on which a notice of other interference has been given. As regards the measures and other interferences, the above period commences when the complainant could have become aware of them.

50. According to its case-law under the former Article 130 § 3 of the Constitution, the Constitutional Court lacked jurisdiction to draw legal consequences from a violation of a petitioner’s rights under Article 48 § 2 of the Constitution. It could neither grant damages to the person concerned nor impose a sanction on the public authority liable for the violation found. In the Constitutional Court’s view it was for the authority concerned to provide redress to the person whose rights had been violated (for further details see, for example, Bánošová v. Slovakia (dec.), no. 38798/97, 27 April 2000).

51. It has been the Constitutional Court’s long standing practice to entertain constitutional petitions or, as the case may be, complaints about excessive length of proceedings only where the proceedings complained of are pending before the authority liable for the alleged violation at the moment when such petitions or complaints are lodged (see, for example, decisions file nos. I. ÚS 34/99, II. ÚS 55/02, IV. ÚS 96/02, I. ÚS 161/02, IV. ÚS 176/03 and many others).

52. The applicant complained that the length of the proceedings in his actions against entrepreneurs B. and K., company M. and in his action of 20 December 1996 against entrepreneur M. had been incompatible with the “reasonable time” requirement, provided 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...”

53. The Government submitted that the applicant had failed to observe the requirements of Article 35 § 1 of the Convention as regards exhaustion of domestic remedies in that he had failed to challenge the length of the proceedings by means of a complaint under Article 127 of the Constitution, lodged in accordance with the applicable procedural rules and established practice. They contended in particular that the applicant had failed to raise his objection before the Constitutional Court as to the length of the proceedings before the District Court while the latter proceedings were still pending. They considered that the applicant could have done so even after the District Court had decided on the matter but before it had transmitted the case-file to the Regional Court for a determination of the defendant’s appeals. The Government further maintained that, had the applicant formulated his constitutional complaint properly, the Constitutional Court would have examined the total length of the proceedings, that is to say their phases before both the District Court and the Regional Court.

54. The applicant disagreed, claiming, in particular, that he had had no ground to contest the length of the proceedings before the Regional Court since there had been no delays in the part of the proceedings that had taken place before it. In his view, the case-law of the Constitutional Court in this respect was complex and it was not sufficiently clear that the Constitutional Court would examine the overall length of the proceedings.

55. The Court observes, first of all, that constitutional amendment no. 90/2001 providing for the remedy pursuant to Article 127 of the Convention was enacted, published in the Collection of Laws, and its relevant part entered into force on 23 February and 17 March 2001 and 1 January 2002, respectively. The applicant was made aware of this amendment by the Registry’s letter of 24 October 2002 (see paragraph 20 above).

56. The present application was introduced on 9 May 2001. At that time it was the Court’s general practice to assess whether domestic remedies had been exhausted with reference to the date on which the application was lodged. The Court decided to modify this rule in relation to cases against Slovakia which, as the present case, were submitted to the Court prior to 1 January 2002 in its Andrášik and Others v. Slovakia decision of 22 October 2002 (see above). The applicant was made aware of this modification by the Registry’s letter of 4 March 2003 (see paragraph 21 above).

57. The proceedings ended at the first instance no earlier than on 15 April 2003 when the District Court gave its supplementary judgment and at the second and final instance on 5 November 2003 when the Regional Court determined the appeals. The proceedings were thus pending before all judicial instances involved on and after the date of entry into force of the relevant part of the amendment no. 90/2001 (see, a contrario, Žiačik v. Slovakia, no. 43377/98, § 21, 7 January 2003; Mikolaj and Mikolajová v. Slovakia, no. 68561/01, § 18, 29 November 2005; Vujčík v. Slovakia, no. 67036/01, §§ 25 and 27, 13 December 2005; Malejčík v. Slovakia, no. 62187/00, § 13, 31 January 2006; Šebeková and Horvatovičová v. Slovakia, no. 73233/01, §§ 14 and 21, 14 February 2006; and Jakub v. Slovakia, no. 2015/02, § 12, 28 February 2006). They were equally pending before all judicial instances involved on and after the date of the Court’s decision establishing the above modification of the general rule as to the relevant time for compliance with the rule of exhaustion of domestic remedies (see, a contrario, Mikolaj and Mikolajová, cited above, §§ 20 and 21; Vujčík, cited above, § 27; Malejčík, cited above, § 15; Šebeková and Horvatovičová, cited above, § 25). And, finally, the present proceedings were pending before all judicial instances involved on and after the date when the applicant was made aware of the amendment no 90/2001 and of the said modification.

58. The Court finds that, in circumstances as those obtaining in the present case, the remedy under Article 127 of the Constitution should generally be resorted to for the purposes of Article 35 § 1 of the Convention.

59. As to the applicant’s argument concerning the complexity of the Constitutional Court’s case-law in this area, the Court observes that it is the Constitutional Court’s practice to examine separately the parts of proceedings which take place before several instances or institutions. This practice stems from the need for the Constitutional Court to identify separately the authorities which may be liable for a violation of the plaintiff’s human rights and fundamental freedoms and which, as the case may be, it then orders to provide appropriate redress to the persons concerned. This approach is different from that of the Court which examines the overall length of the proceedings.

60. Referring to its own approach in this area, the Court would emphasise that a length of proceedings complaint under Article 127 of the Constitution can only be considered “effective” for Convention purposes if it is capable of leading in each individual case to an examination of the overall length of the proceedings (see Bako v. Slovakia (dec.), no. 60227/00, 15 March 2005).

To the extent the present application has been substantiated, the Court has found no reasons to doubt a priori and in general the effectiveness of the complaint under Article 127 of the Convention as a remedy in respect of length of proceedings that took place before several instances/authorities merely because of the said difference in approach.

61. The Court finally observes that it is the Constitutional Court’s established practice to examine constitutional complaints about length of proceedings only when the proceedings are pending before the authority liable for the alleged violation at the time when the complaint is lodged (see paragraph 51 above) and that the Constitutional Court’s examination of an individual human rights complaint is limited by statute to the summary of the complaint, as formulated by the plaintiff (see paragraph 48 above).

62. The Court finds that in the present case the applicant, who was represented by a lawyer, failed to lodge his constitutional complaint in accordance with the applicable procedural rules and established practice (see Akdivar v. Turkey [GC], no. 21893/93, § 67, ECHR 1996-IV), so as to allow the Constitutional Court to examine the overall length of the proceedings in issue.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

63. The Government claimed that the applicant had failed to fulfil the requirement of exhaustion of domestic remedies pursuant to Article 35 § 1 of the Convention in that he had failed to challenge the length of these proceedings by means of a complaint under Article 127 of the Constitution, lodged in accordance with the Constitutional Court’s established practice while the proceedings were still pending.

64. The applicant contested that claim, relying on section 53 (3) of the Constitutional Court Act, which provides for a two months’ time-limit for filing constitutional complaints, and on the dissenting opinion of the President of the Constitutional Court Chamber which rejected his constitutional complaint on 25 June 2003.

65. The Court observes that the Constitutional Court’s practice to entertain constitutional complaints about length of proceedings only when the alleged violation occurred or was still continuing at the time when the complaint was lodged is long-established (see paragraph 51 above). Noting that the applicant was assisted in his constitutional complaint by a lawyer, the Court finds that he failed to lodge the complaint in accordance with the applicable procedural rules and established practice (see Akdivar, cited above, § 67).

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

66. The Government contended that the applicant had not exhausted domestic remedies as required under Article 35 § 1 of the Convention in that he had not challenged the decision of 6 October 2000 to stay the proceedings by an appeal. They made a distinction between the optional staying of proceedings for reasons of appropriateness, as in the applicant’s case, and obligatory staying of proceedings due to a legal obstacle. They maintained that, had the applicant in his situation challenged the decision of 6 October 2000 by an appeal, he would have been in a position to challenge effectively the whole length of the proceedings in his stayed action before the Constitutional Court under Article 127 of the Constitution.

67. The applicant contested that argument claiming that, in the circumstances, any appeal against the decision of 6 October 2000 was destined to fail.

68. The Court finds that it is not called upon to decide whether an appeal against the decision of 6 October 2000 was or was not to be exhausted for the purposes of Article 35 § 1 of the Convention, as this part of the application is in any event inadmissible for the following reasons.

69. The proceedings in the applicant’s action of 20 December 1996 were stayed on 6 October 2000 pending the outcome of another action brought by the applicant on 19 April 1996 against the same defendant on the basis of the same contract. Not having appealed against the decision of 6 October 2000, the applicant arguably had no protection in the period after 6 October 2000 before the Constitutional Court of his right to a hearing within a reasonable time in his action of 20 December 1996. However, he did have and in fact successfully used the mechanism of protection before the Constitutional Court under Article 127 of the Constitution as regards his right to a hearing within a reasonable time in his action of 19 April 1996, pending the outcome of which his action of 20 December 1996 was stayed (see the partial decision on admissibility of the present case of 15 March 2005). The Court finds that in view of their background the actions of 19 April and 20 December 1996 must be considered together for the purposes of Article 6 § 1 of the Convention and that, to the extent the applicant received redress from the Constitutional Court in respect of his right to a hearing within a reasonable time in his action of 19 April 1996, he can no longer claim to be a victim of a violation of this right in the action of 20 December 1996. The relevant part of this complaint is therefore manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

70. The Court further notes that, on 28 April 2004, at the conclusion of the proceedings in the action of 19 April 1996, the proceedings in the action of 20 December 1996 resumed. To the extent the application has been substantiated, the Court has found no reasons why the applicant could not complain of delays in the proceedings in the action of 20 December 1996, prior to their being stayed and after their resumption, by lodging a further complaint under Article 127 of the Constitution.

In these circumstances, the Court finds that the remainder of this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

71. In view of the District Court’s inactivity between February 1998 and January 2001, the Government accepted that this complaint was not manifestly ill-founded.

73. The period to be taken into consideration began on 18 June 1997 and ended on 14 February 2001. It thus lasted 3 years and almost 8 months for one level of jurisdiction.

74. 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.

75. 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).

76. 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).

77. Having examined all the material submitted to it, the Court considers that no facts or arguments have been put forward 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 action against entrepreneur B. the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

“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.”

81. The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 2,400 under that head.

82. The applicant also claimed 26,400 Slovakian korunas^[1] (SKK) for the costs and expenses incurred before the domestic courts and SKK 24,000^[2] for those incurred before the Court.

84. According to the Court’s case-law, an applicant is entitled to reimbursement of his 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 violation found (see paragraph 76 above), the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 500 covering costs under all heads.

85. 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.

1. Declares the complaint concerning the excessive length of the proceedings in the applicant’s action against entrepreneur B. admissible and the remainder of the application inadmissible;

(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 2,400 (two thousand four hundred euros) in respect of non-pecuniary damage and EUR 500 (five hundred euros) in respect of costs and expenses, to be converted into Slovakian korunas at the rate applicable at the date of settlement, plus any tax that may be chargeable;

(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;

Done in English, and notified in writing on 20 June 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

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You are here: BAILII >> Databases >> European Court of Human Rights >> OBLUK v. SLOVAKIA - 69484/01 [2006] ECHR 633 (20 June 2006) URL: http://www.bailii.org/eu/cases/ECHR/2006/633.html Cite as: [2006] ECHR 633