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FOURTH
SECTION
CASE OF DMD GROUP, A.S. v. SLOVAKIA
(Application
no. 19334/03)
JUDGMENT
STRASBOURG
5 October
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 DMD GROUP, a.s. v.
Slovakia,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
Ján Šikuta,
Mihai
Poalelungi,
Nebojša Vučinić,
judges,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 14 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 19334/03) 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 joint-stock company established under the
laws of Slovakia, DMD GROUP, a.s. (“the applicant company”),
on 2 June 2003. The company was known at the time of its
establishment as DMD FIN, a.s.
- The
applicant company was represented by Mr T. Šafárik, a
lawyer practising in Košice. The
Slovak Government (“the Government”) were represented by
Ms A. Poláčková and Ms M. Pirošíková,
their successive Agents.
- The
applicant company alleged that its right under Article 6 § 1 of
the Convention to a hearing by a tribunal established by law was
violated in
proceedings brought by the applicant company for the enforcement of
a financial claim.
- On
26 March 2006 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant company was established in 1997 and has its seat in
Trenčín.
A. Factual background
- In
the late 1990s the applicant company commenced proceedings against
two major companies, seeking the enforcement of financial claims
against the companies through seizure of their shares and transfer of
title to the shares to the applicant company.
- The
companies in question had been involved in arms production and had
gone through a restructuring that resulted in a large number of job
losses and a high rate of unemployment in the region. The relevant
events therefore received media attention.
- The
judicial enforcement officer (súdny exekútor),
A., who had been involved in the enforcement of the claims in issue,
was charged with abuse of authority. A. was eventually acquitted of
that charge by the Bratislava III District Court (Okresný
súd) on 7 February 2003. Criminal proceedings were
also brought against other individuals.
- Further
details concerning the background can be found in the Court's
judgment of 2 June 2009 in the case of Borovský v. Slovakia
(no. 24528/02).
B. Enforcement
- On
23 September 1998 the applicant company petitioned A. to enforce
a claim for payment of an amount equivalent to approximately
2,900,000 euros (EUR) against B., a private joint-stock company. A.
subsequently sought judicial authorisation of the enforcement.
- On
30 September 1998 the President of the Martin District Court, C.,
sitting as a single judge, authorised A. to carry out the enforcement
proceedings against B.
- In
the course of the enforcement proceedings, A. seized B.'s movable
property and certain shares relating to B. A. attempted to sell the
seized property at two public auctions. As the auctions failed,
the shares and movable property were transferred to the applicant
company at fifty percent of their officially estimated value.
- On
20 April 1999 the applicant company requested that the enforcement
proceedings be ended, as its claim had been satisfied by the
above-mentioned award of property.
- In
a decision (uznesenie) of 30 June 1999, D., the newly
appointed President of the District Court sitting as a single judge,
ruled that the enforcement of the applicant company's claim by means
of selling the shares was improper (neprípustná).
At the same time, judge D. discontinued the enforcement proceedings.
Judge
D. observed that the shares had been sold by way of a procedure
that applied to movable property. However, as shares were not deemed
to be movable property, a different procedure requiring special
authorisation should have been used.
The
two-page decision was not subject to appeal.
C. Reassignment of the enforcement to judge D.
- The
distribution of cases and organisation of work at the District Court
is regulated by a work schedule (rozvrh práce).
- The
work schedule for the District Court in 1999 was drawn up in 1998 by
the then President of the District Court, judge C. According to this
work schedule, all enforcement proceedings – including the
proceedings for the enforcement of the applicant company's claim –
were assigned to the District Court's Ninth Section, which was
presided over by judge C. The work schedule provided that judge C.
and judge D., who was at that time with the District Court's Seventh
Section, were to substitute for each other if necessary.
A
copy of the work schedule was sent to the Zilina Regional Court for
information on 7 December 1998.
- On
21 January 1999 judge D. was appointed as President of the District
Court. He occupied that position until 5 June 2002.
- On
4 February 1999 judge D. issued an amendment to the work schedule.
With effect from 1 March 1999, new enforcement proceedings were to be
distributed evenly among eight different sections of the court,
including the Seventh Section. Enforcement proceedings that had
originally been assigned to the Ninth Section were also to be
reassigned and distributed evenly among the eight designated
sections. The amendment was worded in general terms without
identifying any specific proceedings.
A
copy of the amended work schedule was sent to the Regional Court for
information on 30 March 1999.
- On
30 June 1999 judge D., in his capacity as President of the District
Court, issued a decree (opatrenie) reassigning the proceedings
for the enforcement of the applicant company's claim to himself.
In
the one-page decree, reference was made to section 2(2) and 2(3) of
the Administrative Rules for District and Regional Courts (Regulation
no. 66/1992 Coll., as amended) (“the Rules”).
The
decree formally stated that the reason for the reassignment was
“a change in the work schedule” and that the
reassignment was made “in accordance with the system of
substitution of judges fixed in the work schedule and for the purpose
of ensuring the proper functioning of the court”.
- In
the period between 1 March and 15 July 1999, a total number of 348
cases were reassigned from the Ninth Section of the District Court.
Of the total, 49 cases were reassigned to judge D's section and 52,
48, 45, 42, 60 and 52 cases were reassigned to the remaining six
Sections of the District Court respectively.
- Further
amendments to the District Court's work schedule were issued by judge
D. throughout 1999, taking effect on 1 June, 23 June, 1 August
and 1 October 1999. They were all notified to the Regional Court.
Under these amendments, judge D. was in charge of one in seven
enforcement proceedings and also continued to stand in for judge C.
(on a mutual basis).
D. Constitutional complaint
- The
applicant company lodged a complaint under Article 127 of the
Constitution with the Constitutional Court (Ústavný
súd).
It
contended, inter alia, that its right to a hearing by a
tribunal established by law had been violated by judge D.'s
assignation of the case to himself. The applicant company pointed to
the fact that the case had been decided by judge D. on the same day
that it was reassigned to him. It also alleged that there had been
frequent modifications to the work schedule of the District Court in
1999 which had rendered the process of assignment and reassignment of
cases uncontrollable, thus leaving room for arbitrariness.
The
applicant company also challenged the above-mentioned ruling
declaring the enforcement proceedings improper.
- On
4 July 2002 the Constitutional Court declared the part of the
applicant company's complaint concerning the reassignment of the case
to judge D. admissible under Article 48 § 1 of the Constitution.
At the same time, it declared the remaining part of the complaint
concerning the ruling on the merits inadmissible as manifestly
ill-founded.
- In
a judgment (nález) of 17 January 2003, the
Constitutional Court held, by a two to one majority, that there had
been no violation of the applicant company's rights under Article 48
§ 1 of the Constitution.
- Having
received extensive documentary evidence and having held a public
hearing, the Constitutional Court established, inter alia, the
facts summarised in paragraph 20 above.
The
Constitutional Court found that the evidence available indicated that
judge D. had made the impugned decree of 30 June 1999 in the context
of modifications to the court's work schedule for 1999, in the
interests of an equal distribution of cases concerning
enforcement proceedings, and in accordance with section 2(2) of the
Rules.
The
court further held that the fact that judge D. decided the case on
the same day that he had given the above-mentioned decree did not, as
such, affect the legal framework within which the change in judges
had been effected.
The
Constitutional Court concluded that the applicant company had not
sufficiently substantiated its allegation that the case had been
assigned to judge D. in an unjustified manner.
- The
judge in the minority gave a dissenting opinion. He pointed to the
fact that the work schedule of the District Court had been modified
several times in the course of 1999 without any acceptable
explanation. There was no indication that an objective and
transparent method for the reassignment of cases had been established
and applied. Moreover, during the relevant period no similar steps
had been taken at the District Court to redistribute cases in
differing categories despite the far heavier case load in those other
categories.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Constitution
- Article
48 § 1 provides that no one may be deprived of his or her
lawfully appointed judge (zákonný sudca). The
jurisdiction of a court in a particular matter is to be
established by law.
B. The Constitutional Court's practice
- According
to the Constitutional Court, the right “not to be deprived of
his or her lawfully appointed judge” pursuant to Article 48 §
1 of the Constitution is vested in each party to the proceedings (as
opposed to the judge) (decision of 22 July 1997 in case no. II. ÚS
43/97).
- The
Constitutional Court held in its judgment of 28 February 1994 in case
no. I. ÚS 8/94 that the right “not to be deprived of his
or her lawfully appointed judge” attaches to the person of the
judge and not to a court. A 'lawfully appointed' judge is one who,
fulfilling the statutory requirements for being a judge, has been
assigned to a case under the work schedule of the court concerned.
- The
Constitutional Court has also held (by a decision of 3 April 1996
in case no. II. ÚS 15/96) that the right of a person “not
to be deprived of his or her lawfully appointed judge” cannot
be interpreted in so broad a manner as to pertain to a specific,
individual judge.
The
purpose of this constitutional right is therefore satisfied if
an individual's rights are decided upon by a judge who has been
duly appointed to a court which has jurisdiction ratione loci
and ratione materiae and is at the appropriate level of
jurisdiction.
- In
reviewing the additional constituent elements of the notion of
a “lawfully appointed judge” under Article 48 §
1 of the Constitution, the Constitutional Court held that it is not
only statutory provisions, in particular those of the Courts and
Judges Act, that are of relevance but above all the provisions of the
Constitution, chiefly Article 46 § 1, which provides that
everyone may claim his or her rights by way of a procedure
established by law before an independent and impartial court
(judgment of 15 June 2000 in case no. III. ÚS 16/00).
- The
Constitutional Court has also held (in its judgments in cases nos.
II. ÚS 87/01, II. ÚS 118/02 and II. ÚS 119/02)
that, in principle, a “lawfully appointed judge” is the
judge assigned to a specific case under the work schedule of the
court concerned. However, if there are circumstances justifying the
reassignment of the case or of the entire agenda to a different judge
for the reasons envisaged in sections 2(2) and (3) of the Rules, any
newly assigned judge becomes a lawfully appointed judge. Such
circumstances comprise, for example, the long-term absence of a
judge, significant differences in workload among judges, or sudden
events preventing a judge from taking specific steps in the
proceedings.
- In
a judgment of 9 June 1999 in case no. II. ÚS 47/1999, the
Constitutional Court held that a president of a court must not use
his discretion, contrary to the law, to take a case away from a
lawfully appointed judge and assign it to another judge in order to
accommodate one of the parties without providing a precise ground of
justification for the reassignment.
C. Administrative Rules for District and Regional
Courts
- The
Rules were issued by the Minister of Justice. As then in force, they
defined the internal rules of District Courts and Regional Courts and
the discharge of tasks by those courts.
Section
2 of the Rules governed courts' work schedules, that is to say the
distribution of cases among court divisions and judges.
- Pursuant
to paragraph 1 of section 2, the distribution of work at courts was
to be determined in a work schedule for a whole calendar year. The
schedule of work was also to provide for the substitution of judges.
- Under
paragraph 2, where a judge was absent for a long period or where
there were substantial differences in the workload of judges at the
same court, the President of the court was given power to decide that
a certain amount of work be transferred to a different division
of the court.
- Paragraph
3 provided that, where a sudden event prevented a judge from
carrying out individual acts in a case, the court's president might
charge a different judge to take the action required.
- Under
paragraph 4, a court's president was to take the measures indicated
in paragraphs 2 and 3 in accordance with the rules concerning the
replacement of judges as defined in the work schedule, unless a
different action was required with a view to ensuring the proper
functioning of the court.
- No
further statutory rules on the status and creation of courts' work
schedules existed at the relevant time.
D. State Administration of the Judiciary
- At
the relevant time, the State administration of the judiciary was
governed by Law no. 80/1992 Coll., as amended. Pursuant to section 8
of the Law, the bodies charged with the State administration of the
judiciary were the Ministry of Justice and the Presidents and
Vice-presidents of the courts.
- The
State administration of District Courts was carried out by the
Ministry of Justice directly or through the Presidents of those
courts (section 9(1)).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant company complained that: (i) judge D. had arbitrarily taken
the applicant company's case from judge C., the lawfully appointed
judge; (ii) judge D. had assigned the case to himself and declared
the method of the applicant company's enforcement proceedings
improper on the same day as the reassignment was ordered, despite the
fact that the enforcement action had already been carried out; and
(iii) that the relevant period had been plagued by an extensive
number of chaotic and opaque swaps in the agendas of the various
Sections of the District Court.
The
applicant company alleged a violation of its right to a hearing
by a tribunal established by law under Article 6 § 1 of the
Convention, the relevant part of which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing ...by [a] ...
tribunal established by law.”
A. Admissibility
- In
support of its claims, the applicant company submitted that the
ruling declaring the method of enforcement that had been used
improper had had consequences for the applicant company in the
context of the entire transaction in that the credibility of the
applicant company's claim had been put in question. This had a
detrimental effect on its value and liquidity.
- The
Government disagreed and argued that the ruling declaring the
applicant company's method of enforcement improper had had no
practical ramifications for the applicant company because by then the
enforcement had been completed and there had never been any claim to
reverse it.
- The
Court notes that its task is not to review the relevant domestic law
and practice in abstracto, but rather to determine whether the
manner in which they were applied to or affected the applicant
company gave rise to a violation of the Convention or its
Protocols (see MeZnarić v. Croatia, no. 71615/01, §
28, 15 July 2005, with further references).
- The
Court considers that it must first resolve the question of the
applicability of Article 6 § 1 of the Convention to the facts of
the present case in the light of the Government's submission that the
substantive ruling made by judge D. on 30 June 1999 had no concrete
effect on the applicant company because it was merely of a
declaratory nature and neither had the aim nor effect of reversing
the enforcement which was, by that time, already completed (see
paragraph 44 above).
- To
that end, the Court reiterates that for Article 6 § 1 under its
“civil” limb to be applicable, there must be proceedings
whose outcome directly determines the civil right or obligation in
question, mere tenuous connections or remote consequences not being
sufficient to bring Article 6 § 1 into play (see, inter
alia, Masson and Van Zon v. the Netherlands, 28 September
1995, § 44, Series A no. 327-A, and Fayed v. the United
Kingdom, 21 September 1994, § 56, Series A no. 294-B).
- The
Court observes at the outset that the impugned substantive ruling of
judge D. was made on 30 June 1999 in the framework of proceedings for
the enforcement of the applicant company's financial claim (see
paragraph 10 above) and that such proceedings undoubtedly fall within
the ambit of Article 6 § 1 of the Convention (see, for example,
Hornsby v. Greece, 19 March 1997, § 40, Reports of
Judgments and Decisions 1997 II).
- The
Court further notes that the ruling in question declared the
enforcement of the applicant company's claim – achieved by
selling the shares relating to B. (see paragraph 14 above) –
improper, although the enforcement had in fact taken place before the
ruling was made (see paragraphs 12 and 13 above).
There
is no indication that the ruling has imposed any directly enforceable
obligations on the applicant company or conferred any directly
enforceable rights on the applicant company's debtor.
- Nevertheless,
the Court accepts that the ruling had consequences for the applicant
company which were relevant and sufficient to engage the guarantees
of Article 6 § 1 of the Convention in that, by implication, it
necessarily affected the value and liquidity of the applicant
company's property rights – in other words, the shares of
company B. (see paragraph 43 above).
It
follows that, in the proceedings in issue, the applicant company
benefited from the guarantees of Article 6 § 1 of the Convention
and, in particular, the right to a hearing by a tribunal established
by law.
- 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
1. The parties' submissions
(a) The applicant company
- The
applicant company submitted that judge D. had intervened in its case
in the context of a power struggle between economic groups that had
a political background. His intervention was incompatible with
the principle of open justice and more in keeping with the arbitrary
and politicised “cabinet justice” of the past.
The
fact that the changes in the work schedule had been notified to the
Regional Court was of no relevance, as the notification carried no
legal consequences.
By
deciding the case on the same day that he had reassigned it to
himself and by concluding the proceedings in that manner, judge D.
had rendered the procedural right of the applicant company
to challenge him on grounds of bias effectively useless.
(b) The Government
- The
Government argued that the changes in the District Court's work
schedule in 1999 had had a clear basis in law and had complied with
the law. They had been carried out with the legitimate aim of
rationalising the workings of the District Court and had been
proactively notified to the superior court, even though notification
was not required by law.
- The
frequency of the changes to the work schedule in 1999 reflected the
development of the personnel situation at the District Court and,
save for the first amendment, the amendments were not substantial.
- The
Government emphasised that the decree reassigning the applicant
company's case had been issued subsequently to the amendment to the
work schedule that freed additional space in the schedule. The decree
was duly reasoned and administratively registered.
- The
Government also submitted that judge D. had been a natural choice to
take over cases from judge C.'s agenda because the two judges would
stand in for each other. There were no reasons to doubt the
impartiality of judge D. and the correctness of his decision.
- The
Government were of the view that the fact that judge D. had decided
the case on the same day that the applicant company's case had been
reassigned to him “had no impact on the legal framework and
gave no grounds to doubt his attitude in respect of the matter.”
2. The Court's assessment
(a) General principles
- The
Court reiterates that under Article 6 § 1 of the Convention
a tribunal must always be “established by law.” This
expression reflects the principle of the rule of law, which is
inherent in the system of protection established by the Convention
and its Protocols (see, for example, Jorgic v. Germany,
no. 74613/01, § 64, ECHR 2007 IX (extracts)).
- “Law”,
within the meaning of Article 6 § 1 of the Convention, comprises
not only legislation providing for the establishment and competence
of judicial organs (see, inter alia, Lavents v. Latvia,
no. 58442/00, § 114, 28 November 2002), but also any other
provision of domestic law which, if breached, would render the
participation of one or more judges in the examination of a case
irregular (see Gorguiladzé
v. Georgia, no. 4313/04,
§ 68, 20 October 2009, and Pandjikidzé and Others v.
Georgia, no. 30323/02, § 104, 27 October 2009).
This
includes, in particular, provisions concerning the independence of
the members of a tribunal, the length of their term of office,
impartiality and the existence of procedural safeguards (see, for
example, Coëme and Others v. Belgium, nos. 32492/96,
32547/96, 32548/96, 33209/96 and 33210/96, § 99, ECHR
2000 VII, and Gurov v. Moldova, no. 36455/02, § 36,
11 July 2006).
In
other words, the phrase “established by law” covers not
only the legal basis for the very existence of a “tribunal”
but also compliance by the tribunal with the particular rules that
govern it (see Sokurenko and Strygun v. Ukraine, nos. 29458/04
and 29465/04, § 24, 20 July 2006) and the composition of the
bench in each case (see Buscarini v. San Marino (dec.), no.
31657/96, 4 May 2000).
- The
Court further observes that, according to its case-law, the object of
the term “established by law” in Article 6 of the
Convention is to ensure “that the judicial organisation in a
democratic society does not depend on the discretion of the
executive, but that it is regulated by law emanating from Parliament”
(see Zand v. Austria, no. 7360/76, Commission's report of 12
October 1978, Decisions and Reports (DR) 15, pp. 70 and 80). Nor, in
countries where the law is codified, can the organisation of the
judicial system be left to the discretion of the judicial
authorities, although this does not mean that the courts do not have
some latitude to interpret relevant domestic legislation (see Coëme
and Others, cited above, § 98, and Savino and Others v.
Italy, nos. 17214/05, 20329/05 and 42113/04, § 94, 28 April
2009).
- The
Court further reiterates that, in principle, a violation by
a tribunal of domestic legal provisions relating to the
establishment and competence of judicial organs gives rise to a
violation of Article 6 § 1. The Court may therefore
examine whether the domestic law has been complied with in this
respect. However, having regard to the general principle that it is,
in the first place, for the national courts themselves to interpret
the provisions of domestic law, the Court finds that it may not
question their interpretation unless there has been a flagrant
violation of domestic law (see, mutatis mutandis, Coëme
and Others, cited above, § 98 in fine, and Lavents,
cited above, § 114).
(b) Application of the general principles
to the facts of the case
- The
Court will first determine whether the facts complained of in the
instant case were compatible with the relevant provisions of domestic
law.
To
that end, the Court notes that the events concerning the reassignment
of the applicant company's case to judge D. and his subsequent swift
determination of the case, by issuing a declaratory ruling as to the
improper method of enforcement used and discontinuing the proceeding,
were subject to comprehensive examination by the Constitutional Court
in its judgment of 17 January 2003.
In
particular, it is noted that the Constitutional Court received
extensive documentary evidence, held a public hearing and
concluded that the impugned reassignment had taken place in the
context of modifications to the District Court's work schedule for
1999 made in the interests of the equal distribution of cases
concerning enforcement proceedings and in compliance with the Rules.
The Constitutional Court also found that the speed with which judge
D. decided on the case had no particular legal relevance (see
paragraph 25 above).
- The
Court observes that it is not entirely clear which statutory ground
was used to justify the reassignment of the applicant company's case
from judge C. to judge D.
In
particular, the decree of 30 June 1999 relied on both sections 2(2)
and 2(3) of the Rules (see paragraph 19 above), while the
Constitutional Court cited section 2(2) of the Rules in its judgment
of 17 January 2003 (see paragraph 25 above). However, these
provisions deal with the reorganisation of work in differing
situations, namely to solve a long-term problem or to overcome the
consequences of a sudden event (see paragraphs 36 and 37).
Having
regard to the limitations on its power to review questions of
compliance with domestic law (see paragraph 61 above), the Court
accepts the Constitutional Court's conclusion that the applicable
domestic law was complied with.
- The
Court is therefore called upon to determine whether the results of
the interpretation and application of the domestic rules in the case
at hand were compatible with the specific requirements of Article 6 §
1 of the Convention.
- The
Court observes that, as manager of the organisation of work at the
District Court in his capacity as President, judge D. acted as an
agent of the Ministry of Justice carrying out the State
administration of the judiciary rather than as a member of the
judiciary (see paragraphs 40 and 41 above).
However,
judge D. was also involved in the applicant company's case in
deciding it in his capacity as a judge.
- The
Court is of the view that, in such circumstances, the paramount
importance of judicial independence and legal certainty for the rule
of law call for particular clarity of the rules applied in any one
case and for clear safeguards to ensure objectivity and transparency,
and, above all, to avoid any appearance of arbitrariness in the
assignment of particular cases to judges (see in this connection
Iwańczuk v. Poland (dec.), no. 39279/05, 17 November
2009).
- The
Court observes that, at the relevant time, the assignment of cases to
judges was largely governed by the work schedule of the court in
question and that the rules concerning the creation and modification
of work schedules were principally embodied in the Rules (see
paragraphs 34 – 39 above).
- The
Court also observes that the applicable rules, both substantive and
procedural, were far from being exhaustive (see in particular
paragraph 39 above) and left significant latitude to the president of
the court in issue.
This
is evidenced, for example, by the number of modifications to the work
schedule that were made at the District Court in 1999 (see paragraphs
18 – 21 above) and the fact that there appear to have been no
specific safeguards in respect of such modifications.
In
particular, as admitted by the Government, such modifications did not
even require to be notified to a superior court (see paragraph 53
above).
- The
Court further observes that the amendments to the District Court's
work schedule concerned the reorganisation of work at the District
Court in general terms – that is to say, on generically
verifiable criteria and without identifying specific individual cases
(see paragraphs 18 and 21 above). By contrast, the reassignment of
the applicant company's case on 30 June 1999 took the form of a
“decree” and concerned that individual case exclusively
(see paragraph 19 above).
- On
the basis of the information available, the Court cannot reliably
verify whether the reassignment of the applicant company's individual
case was on objective grounds and whether any administrative
discretion in its reassignment was exercised within transparent
parameters. In this respect, the Court notes the case-law of the
Constitutional Court concerning the additional constituent elements
of the notion of a “lawfully appointed judge” and its
content (see, in particular, paragraphs 31 and 33 above).
- The
Court places further reliance on the fact that judge D., exercising
his judicial mandate, ruled on the applicant company's case - which
involved a claim to the equivalent of no less than EUR 2,900,000 - in
private on the same day that, exercising his administrative mandate,
he reassigned the case to himself.
As
the decision of judge D. completed the proceedings and was not
subject to appeal, the applicant company was deprived of the
possibility to raise any objections. Although this does not
constitute a separate Convention issue in the circumstances of the
present case, the applicant company was thereby also prevented from
potentially challenging judge D. for bias.
- The
foregoing considerations are sufficient to enable the Court
to conclude that the reassignment of the applicant company's
case to judge D., who subsequently decided the case, was not
compatible with the applicant company's right to have a hearing
before a tribunal established by law.
There
has accordingly been a violation of Article 6 § 1 of the
Convention.
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 company made a claim in respect of pecuniary damage,
quantifying the claim with a “hypothetical estimate” of
some 5,000,000 Slovakian korunas (SKK) (the equivalent of some EUR
166,000) but submitting that it was not in a position to
substantiate the claim or to quantify it with any precision. The
applicant company also claimed SKK 2,000,000 (the equivalent of some
EUR 66,400) in respect of non pecuniary damage.
- The
Government contested the substance of the former claim and the amount
of the latter claim.
- The
Court observes that although the applicant company's pecuniary rights
and interests must have been affected (see paragraph 50 above), the
applicant company has failed to substantiate the relevant part of its
Article 41 claim. The Court therefore rejects this claim.
- On
the other hand, it awards the applicant company EUR 4,000 in respect
of non-pecuniary damage.
B. Costs and expenses
- The
applicant company also claimed SKK 200,000 (the equivalent of some
EUR 6,640) in legal costs, making reference to the domestic legal
regulations concerning lawyers' fees but providing neither any
breakdown of the claim nor any supporting documents.
- The
Government considered that the applicant company was only entitled to
an award in respect of legal costs actually and necessarily incurred
and which were reasonable as to quantum.
- The
Court observes that the claim has not been substantiated. It is
therefore dismissed.
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
company, within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2 of the
Convention, EUR 4,000 (four thousand euros), plus any tax that may be
chargeable, in respect of non pecuniary damage;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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
company's claim for just satisfaction.
Done in English, and notified in writing on 5 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
