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FOURTH
SECTION
CASE OF MAJAN v. SLOVAKIA
(Application
no. 8799/04)
JUDGMENT
STRASBOURG
23 November 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 Majan v. Slovakia,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
David
Thór Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
Ledi Bianku,
Nebojša
Vučinić,
Vincent Anthony de Gaetano,
judges,
and Fatoş Aracı,
Deputy
Section Registrar,
Having
deliberated in private on 2 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 8799/04) 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 Igor Majan (“the applicant”), on
23 February 2004.
- The
Government of the Slovak Republic (“the Government”) were
represented by their Agent, Mrs M. Pirošíková.
- On
13 April 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 § 1).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1944 and lives in Rimavská Baňa.
1. Factual background
- The
applicant's father was a member of an agricultural co-operative. He
died in 1995.
- The
cooperative underwent a transformation and a monetary value of the
membership interests of individual members was established.
In a decree of 4 September 1998 the co-operative certified
the financial value of the ownership interest that had once belonged
to the applicant's father.
- The
applicant subsequently made a claim for compensation in respect of
his father's membership interest (see below).
2. Insolvency proceedings
- On
3 March 1998 the Banská Bystrica Regional Court declared the
co-operative insolvent.
- On
25 June 1998 the applicant registered his compensation claim in the
insolvency proceedings.
- On
18 May 1999 the regional court held a hearing (prieskumné
pojednávanie) with a view to establishing the claims of
the different creditors. At the hearing the receiver rejected the
applicant's claim on the ground that he had filed it in his own name
but had failed formally to show that the claim, which had originally
belonged to his father, had actually devolved on him. The applicant
was referred to the possibility of seeking judicial establishment of
his claim by way of a separate action (incidenčná
Zaloba). The applicant brought such an action and was successful
(see below).
- In
the following period, the regional court agreed to the sale of the
co-operative's individual assets.
- On
1 December 2005 a final report on the sale of the co-operative's
assets was submitted to the regional court. It was amended on
14 March 2006 and displayed on the regional court's
official notice board on 6 March 2007.
- On
4 April 2007 a hearing took place. On 18 October 2007 a meeting
of the insolvency creditors took place and a new receiver was
appointed.
- On
21 June 2010 the applicant informed the Court that the insolvency
proceedings were still pending.
3. Action for establishment of the applicant's claim
- On
1 June 1999 the applicant brought an action against the insolvency
receiver in the regional court seeking judicial establishment of his
compensation claim.
- On
30 April 2002 the regional court granted the action and decided that
the applicant had a claim in an amount equivalent to 18,537 euros.
The applicant alleged that the judgment had not been served on him
but on his daughter and therefore had not yet become final.
- The
Government stated that the judgment had become final on 3 July 2002.
4. Constitutional complaint
- On
8 July 2003 the applicant lodged a complaint under Article 127 of the
Constitution with the Constitutional Court in respect of the length
of the insolvency proceedings and the proceedings in the action for
establishment of his claim.
- On
10 September 2003 the Constitutional Court declared the complaint
inadmissible. As for the proceedings in the applicant's action, it
observed that they had ended in 2002. They had thus no longer been
pending at the time when the constitutional complaint had been
lodged. In these circumstances, in line with the Constitutional
Court's established practice, the complaint of the length of those
proceedings was manifestly ill founded. As for the insolvency
proceedings, the Constitutional Court observed that the sale of the
co-operative's assets was still under way and had not yet been
completed. As the Constitutional Court had not found any undue
delays, it concluded that the complaint in respect of the insolvency
proceedings was manifestly ill-founded.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the
above two sets of proceedings had been incompatible with the
“reasonable time” requirement, laid down in Article 6 §
1 of the Convention, which reads as follows:
“In the establishment of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government contested the applicant's argument. As to the proceedings
concerning establishment of the applicant's claim, the Government
argued that the applicant had failed to exhaust domestic remedies.
They were of the opinion that the applicant had failed to formulate
his constitutional complaint in a way which would have allowed the
Constitutional Court to address his objection concerning the alleged
failure to serve on him the judgment of 30 April 2002. The Government
agreed with the Constitutional Court's decision stating that,
according to the information obtained from the regional court, the
judgment had become final on 3 July 2002. Therefore, the
Constitutional Court correctly came to the conclusion that the
applicant had not lodged his constitutional complaint at the time
when the proceedings had still been pending. As to the insolvency
proceedings, the Government referred to the Constitutional Court's
decision and reiterated that the complaint in this respect was
manifestly ill-founded. They further stated that at the stage of sale
of the co operative's assets, the regional court exercised only
statutory supervision of the receiver's activity. They also argued
that, as regards the period after the Constitutional Court's
decision, the applicant could have lodged a fresh complaint under
Article 127 of the Constitution.
- The
applicant argued that the judgment of 30 April 2002 had still not
been served on him, that he had exhausted domestic remedies and that
further delays had occurred after the Constitutional Court's
decision.
- The
Court observes that on 25 June 1998 the applicant registered his
claim with the receiver in the context of the insolvency proceedings.
As the receiver had refused to acknowledge the claim, the applicant
lodged an action against the receiver with a view to having his
entitlement established by a court. The regional court confirmed the
applicant's right to claim the sum in the context of the insolvency
proceedings by its judgment of 30 April 2002. After the judicial
establishment of the applicant's entitlement to claim compensation in
the insolvency proceedings, the latter are still pending.
- In accordance with its practice to examine the length
of the proceedings taken as a whole, the Court finds that, in the
circumstances of the case, the individual proceedings should be
treated as a single dispute over the applicant's claim registered on
25 June 1998 and that the proceedings on establishment of the
applicant's claim cannot be dissociated from the insolvency
proceedings (see also Keszeli v. Slovakia, no. 34602/03, §
29, 13 October 2009; mutatis mutandis, Sika v. Slovakia, no.
2132/02, §§ 25, 26, 13 June
2006; and Komanický
v. Slovakia (no.2), no. 56161/00,
§ 118, 2 October 2007).
- The
Court observes that the Constitutional Court rejected the applicant's
complaint lodged against the two sets of proceedings. It excluded
one set of proceedings from its examination and did not find any
undue delays in the other set of proceedings. This approach differs
from the Court's case-law (as quoted in paragraph 24 above).
- Since
the applicant was unable to obtain redress before the Constitutional
Court, the Court concludes that, as to the period of the proceedings
following the Constitutional Court's decision, he was not required,
for the purposes of Article 35 § 1 of the Convention, to
have again recourse to the remedy under Article
127 of the Constitution (see the recapitulation of the relevant
principles in Becová v.
Slovakia (dec.), no. 23788/06,
18 September 2007). The Government's objections must therefore
be dismissed.
- The
period under consideration started on 25 June 1998. The regional
court dealt with the applicant's claim in the course of the
insolvency proceedings, later in the proceedings on establishment of
the applicant's claim and, subsequently, again in the course of the
insolvency proceedings. The proceedings have thus been pending for 12
years and more than 4 months.
- It
follows that this part of the application cannot be rejected for
non exhaustion of domestic remedies within the meaning of
Article 35 § 1 of the Convention and it 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
29. 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).
- The
Court observes that in the course of the insolvency proceedings, the
applicant was obliged to have his claim confirmed in a separate set
of proceedings. This took 3 years and 1 month. However, the
insolvency proceedings which started in 1998, have not yet ended and
no arguments justifying such a long period have been submitted. They
have thus lasted twelve years and more than 4 months so far.
- 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. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant complained that due to the excessive length of the
proceedings, it is now impossible for him to have his claim
satisfied. In substance, he alleged a violation of Article 1 of
Protocol No. 1.
- However, in the light of all the materials in its
possession, the Court finds that they do not
disclose any appearance of a violation of the rights guaranteed under
Article 1 of Protocol No. 1.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
III. 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 8,300 euros (EUR) in respect of non pecuniary
damage.
- The
Government considered the claim exaggerated.
- The
Court awards the applicant the full amount claimed, i.e. EUR 8,300
in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 166 for the costs and expenses and a lump
sum which the Court considered reasonable. The applicant attached
invoices for EUR 26.
- The
Government had no objection to the award of a demonstrably incurred
sum under this head. They further argued that the applicant had
failed to support his claim by sufficient evidence.
- 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 documents in its possession and the above criteria, the Court
awards the applicant, who was not represented by a lawyer, the sum of
EUR 100 for his out-of-pocket expenses.
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 complaint
concerning the excessive length of the proceedings admissible and the
remainder of the application inadmissible;
- 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 8,300 (eight thousand three hundred euros), plus any tax that
may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 100 (one hundred 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 23 November 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş
Aracı Nicolas
Bratza
Deputy Registrar President
