In the case of Majchrák v. Slovakia,
The European Court of Human Rights (Third Section), sitting as
a Chamber composed of:
Josep Casadevall, President,
Egbert Myjer,
Corneliu Bîrsan,
Alvina Gyulumyan,
Ján Šikuta,
Luis López Guerra,
Nona Tsotsoria, judges,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 2 October 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
21463/08) 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 Peter Majchrák (“the applicant”),
on 14 April 2008.
The applicant, who had been granted legal aid, was
represented by Mr Ľ. Lipovský,
a lawyer practising in Bratislava. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.
The applicant alleged, in particular, that a
decision by the Constitutional Court of 6 December 2007 to declare his
constitutional complaint inadmissible on the grounds that it had been lodged
belatedly, on the basis of information obtained by the Constitutional Court proprio
motu and without having given the applicant an opportunity to comment,
was contrary to his right of access to court under Article 6 §
1 of the Convention.
On 15 April 2011 the application was communicated
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
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1958 and lives in Bratislava.
A. Contract and action
On 28 January 1996 the applicant, in his capacity
as an architect, concluded a contract with the Customs Directorate of the
Slovak Republic (Colné riaditeľstvo Slovenskej republiky) in which he
agreed to produce project documentation for a border crossing between Slovakia
and Hungary in return for a fee.
On 20 April 2000 the Customs Directorate brought a
civil action against the applicant for late completion of the documentation,
seeking an order for the payment of a contractual penalty as well as
late-payment interest on that penalty.
On 24 September 2003 the Bratislava V District
Court (Okresný súd) dismissed the action, but its judgment was quashed
by the Bratislava Regional Court (Krajský súd) following an appeal (odvolanie)
by the applicant. At the same time, the case was remitted to the District Court
for re-examination.
On 6 June 2005 the District Court allowed the
action. It found that the applicant and the defendant had agreed on a
contractual penalty amounting to 0.1% of the agreed fee per day of delay on the
part of the applicant. It also found that the deadline for the applicant to
fulfil his obligations under the contract had been 31 July 1997 and that the applicant
had not done so until 8 March 1998. The applicant appealed.
On 19 October 2005 the Regional Court declared
the appeal inadmissible as having been lodged outside the statutory appeal period.
It applied a legal fiction under Article 47 § 2 of the Code of Civil Procedure (Law no. 99/1963
Coll., as applicable at the relevant time), pursuant to which the commencement
of the appeal period in the given circumstances is determined with reference to
the third day after a written copy of the contested decision has been deposited
for the appellant at the local post office, irrespective of when the decision is
actually received by the appellant (see paragraph 37 below). The applicant
challenged the decision of the Regional Court by way of an appeal on points of
law (dovolanie) to the Supreme Court (Najvyšší súd).
The applicant’s appeal on points of law per
se had no suspensive effect and, consequently, the judgment of 6 June 2005
was considered final and binding (see section D on “Enforcement” below).
However, on 19 April 2006, the Supreme Court
made a separate ruling suspending the effects of the judgment of 6 June 2005
pending the outcome of the appeal on points of law.
On 7 December 2006 the Supreme Court, having
found that the statutory requirements for applying the above-mentioned legal
fiction had not been met, quashed the decision of 19 October 2005 and
remitted the applicant’s appeal against the District Court’s judgment of 6 June
2005 to the Regional Court.
It was then incumbent on the Regional Court to re-examine
the applicant’s appeal against the judgment of the District Court of 6 June
2005.
On 20 June 2007 the Regional Court upheld the
judgment of 6 June 2005 in so far as the applicant had been ordered to pay the
contractual penalty. However, it reversed the ruling that the applicant should pay
interest on the contractual fine. It held that a contractual fine and late-payment
interest had both the nature of a sanction and that cumulating these two
sanction mechanisms was excluded by the nature of things.
B. Service of the judgment and its final and binding
effect
A written version of the Regional Court’s
judgment of 20 June 2007 was received by the District Court on 12 July 2007. It
was then incumbent on the District Court to ensure that the judgment was served
on the parties in person (do vlastných rúk).
According to the law, once the judgment of 20
June 2007 had been served on both parties, the matter was resolved with final
and binding effect (právoplatnosť).
The actual service of the written version of the
judgment of 20 June 2007 was carried out as follows:
On 23 and 24 July 2007 the postal service was unable to reach
the applicant’s lawyer. Accordingly, on the latter date, a written version of
the judgment was deposited at the local post office and a notice to that effect
was left in her mailbox.
On 24 July 2007 the judgment was served on the Customs
Directorate.
On 7 August 2007 the applicant’s lawyer collected the applicant’s
copy of the judgment from the post office.
As to the effective service of the judgment of 20
June 2007 on the applicant, the Government have submitted - and it has not been
disputed by the applicant - that it occurred on 27 July 2007, by virtue of the
legal fiction (see paragraph 10 above and paragraph 37 below), three days after
the deposition of the judgment at the local post office (see the preceding paragraph).
The Government have also submitted - this has
not been disputed by the applicant either - that the judgment actually became
final and binding on the day of its effective service on the last of the
parties, that is to say the applicant, on 27 July 2007.
On 7 September 2007, on the applicant’s request,
the District Court stamped (doložka právoplatnosti) his copy of the
judgment of 6 June 2005 certifying that, together with the Regional Court’s
judgment of 20 June 2007, it had become final and binding on “28 July 2005”.
On 25 September 2007, the District Court
provided the Constitutional Court (Ústavný súd) on its request (see paragraph 25 below), with a different copy
of the judgment of 6 June 2005 with a similar stamp certifying that, together
with the judgment of the Regional Court of 20 June 2007, it had become final
and binding on 24 July 2007.
C. Constitutional complaint
The applicant then lodged a complaint under
Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as
amended) with the Constitutional Court (Ústavný súd).
As to the date of commencement of the two-month period for
lodging the complaint (see paragraph 34 below), the applicant took as decisive
the date stamped on his copy of the judgment of 6 June 2005, that is to say “28
July 2005” (see paragraph 21 above), assuming that the reference to year 2005 was
an obvious typographical error actually meaning 2007, and submitted his
stamped copy of that judgment to the Constitutional Court.
Accordingly, the applicant dated and mailed his complaint on 24
and 25 September 2007, respectively. The complaint was received at the Constitutional Court on 26 September 2007.
The applicant relied on Article 6 § 1 of the
Convention and challenged the Regional Court’s judgment of 20 June 2007 as
being contrary to his right to a fair hearing and the general prohibition of
discrimination. In substance, the applicant contested the assessment of the
facts and the application of the law by the ordinary courts.
On 6 December 2007 the Constitutional Court
declared the complaint inadmissible. It noted that it had procured of its own
initiative a copy of the contested decisions with a stamp concerning their
final and binding effect. This stamp indicated that the matter had been
resolved with final and binding effect on 24 July 2007 (see paragraph 22 above).
As the applicant’s constitutional complaint had only been
mailed on 25 September 2007, it had been lodged outside the two-month
time-limit laid down in section 53(3) of the Constitutional Court Act (Law no.
38/1993 Coll., as amended) (see paragraph 34 below).
The applicant subsequently complained to the
President of the Constitutional Court that, according to his stamped copy, the
challenged decisions had become final and binding on 28 July 2007, the mention
of the year 2005 (see paragraph 21 above) being an obvious typographical error actually
meaning 2007. He had lodged his constitutional complaint on 25 September
2007 and had therefore met the deadline.
In a letter of 25 April 2008 the President of
the Constitutional Court notified the applicant that the two-month time-limit
for filing his constitutional complaint had commenced on 24 July 2007 when the
contested decisions had become final and binding. It had accordingly ended on
24 September 2007. The applicant’s complaint had only been mailed on 25
September 2007 and had therefore failed to meet the deadline. Nevertheless, if the
applicant had sustained any damage as a result of the incorrect information in
the stamped copy he had received, it was open to him to claim compensation
under the State Liability Act (Law no. 514/2003 Coll., as amended).
D. Enforcement and related constitutional complaint
On 24 January 2006 a lawyer lodged a petition on
behalf of the Customs Directorate with a judicial enforcement officer (súdny
exekútor) for enforcement of the judgment of 6 June 2005 against the
applicant.
The enforcement proceedings were first
authorised, but eventually discontinued in view of the Supreme Court’s judgment
of 7 December 2006 (see paragraph 13 above).
Nevertheless, on 11 May 2005, while the
enforcement was still pending, the District Court ordered the applicant to pay the
court fees for objections (námietky) that he
had lodged earlier.
On 31 August 2007 the Regional Court upheld the District
Court’s decision of 11 May 2005 following the applicant’s appeal.
On 28 February 2008 the Constitutional Court
declared inadmissible a complaint under Article 127 of the Constitution, in
which the applicant had relied on Articles 6 § 1 and 13 of the Convention and
had challenged the decision on fees for his objections as being arbitrary and
contrary to his rights to a fair hearing and an effective remedy.
The Constitutional Court found that the applicant’s duty to pay
the court fees had its legal basis in section 5(1) of the Court Fees Act and that
the contested decision had been legally and factually correct.
II. RELEVANT DOMESTIC LAW
A. Constitution
Article 127 of the Constitution, subsumed under
Section (Oddiel) One (dealing with Judicial Power) of Part (Hlava)
Seven (dealing with the Constitutional Court), provides:
“1. The Constitutional Court shall decide on
complaints by natural or legal persons alleging a violation of their
fundamental rights or freedoms ... unless the protection of such rights and
freedoms falls within the jurisdiction of a different court.
2. If the Constitutional Court finds a complaint
justified, it shall deliver a decision stating that a person’s rights or
freedoms as set out in paragraph 1 have been violated by a final decision,
specific measure or other act and shall quash such decision, measure or act. If
the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the rights or freedoms to
take the necessary action. At the same time it may remit the case to the
authority concerned for further proceedings, order such authority to refrain
from violating the fundamental rights and freedoms ... or, where appropriate,
order those who have violated the rights or freedoms set out in paragraph 1 to
restore the situation to that existing prior to the violation.
3. In its decision on a complaint the Constitutional Court may grant appropriate financial compensation to the person whose rights
under paragraph 1 have been violated.”
B. Constitutional Court Act
Section 53(3) of the Constitutional Court Act
provides that a complaint to the Constitutional Court must be lodged
within two months of the date on which the decision in question has become
final and binding or on which a measure has been notified or notice of other
interference with the complainant’s interests has been given. As regards
measures and other types of interference, this period commences when the
complainant has a reasonable opportunity to become aware of them.
Under section 31a, the provisions of the Code of
Civil Procedure and the Code of Criminal Procedure are to be applied
accordingly in proceedings before the Constitutional Court, except where
otherwise provided or where the nature of the matter at hand precludes their
application.
C. Code of Civil Procedure
The service of summonses and other documents is
regulated by Articles 45 et seq. of the Code of Civil Procedure. Documents
are to be served in person if so provided by statute or so ordered by a court
(Article 47 § 1).
If the addressee of a document to be served in
person cannot be reached, even though he or she stays at the address provided,
the deliverer must notify the addressee in an appropriate manner when a new
attempt at service takes place. If the new attempt at service fails, the
deliverer must deposit the document at a post office or municipal office and
advise the addressee accordingly in an appropriate manner. If the addressee does
not collect the document within three days of its deposition, the last day of that
period is deemed to be the date of effective service, irrespective of whether
the addressee has actually learned of the deposition (Article 47 § 2, as applicable at the relevant time).
D. State Liability
Act
The relevant provisions of the State Liability
Act are summarised, for example, in the Court’s judgment in the case of Ištván
and Ištvánová v. Slovakia (no. 30189/07, §§ 30-35, 12 June 2002).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE
CONVENTION
The applicant complained: (i) that the
action against him had been allowed arbitrarily; (ii) that the decision of
6 December 2007 declaring his constitutional complaint inadmissible had been
arbitrary; (iii) that his constitutional complaint and other remedies in
respect of the enforcement proceedings against him had been rejected or
dismissed arbitrarily; and (iv) that the length of the civil proceedings
and the enforcement proceedings against him had been excessive.
The applicant relied on 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 fair ... hearing within a reasonable time by ...
[a] tribunal ...”
A. Admissibility
1. Outcome of the action and the ruling of 11 May 2005
on the court fees for the applicant’s objections
The Court reiterates that, in accordance with
Article 19 of the Convention, its duty is to ensure that the obligations
undertaken by the Contracting Parties to the Convention are observed. In
particular, it is not its function to deal with errors of fact or law allegedly
committed by a national court, unless and in so far as they may have
infringed rights and freedoms protected by the Convention. Moreover, while
Article 6 of the Convention guarantees the right to a fair hearing, it does not
lay down any rules on the admissibility of evidence or the way it should be
assessed, which are therefore primarily matters for regulation by national law
and the national courts (see Garćia Ruiz v. Spain [GC], no.
30544/96, § 28, ECHR 1999-I, with further references).
In so far as the relevant part of the application
has been substantiated, the Court has not found any appearance of a violation
of the applicant’s right to a fair hearing within the meaning of Article 6 § 1 of the Convention. It follows that this part of the
application is manifestly ill-founded and must be rejected in accordance
with Article 35 §§ 3 (a) and 4 of the Convention.
2. Other rulings in the enforcement proceedings and the
length of the civil proceedings and the enforcement proceedings
The Court observes that, in so far as its scope was
as formulated in a standardised and prescribed form (petit) by the applicant
(see, for example, Obluk v. Slovakia, no. 69484/01, §§ 48 and 61, 20
June 2006; Šidlová v. Slovakia, no. 50224/99, § 53, 26 September 2006;
and Mazurek v. Slovakia (dec.), no. 16970/05, 3 March 2009), the
applicant’s constitutional complaint in the enforcement proceedings was aimed
exclusively at the decisions of 11 May 2005 and 31 August 2007 (see paragraphs
30 and 31 above) on the court fees for the applicant’s objections. In other
words, the applicant has not shown that other rulings in the enforcement
proceedings were challenged before the Constitutional Court.
The Court also observes that the length of the
proceedings in the action against the applicant and of the enforcement
proceedings was not contested in either of his constitutional complaints.
It follows that the relevant part of the
application must be rejected under Article 35 §§ 1 and 4 of the
Convention for non-exhaustion of domestic remedies.
3. Decision of 6 December 2007 to declare the
applicant’s constitutional complaint inadmissible
The Government admitted that the Constitutional
Court’s decision of 6 December 2007 (see paragraph 25 above) had been based on incorrect
information, obtained by the Constitutional Court from the District Court, as
to the date on which the judgment had become final.
In particular, the Government submitted that the final judgment
had been served on the applicant and had thereby become final on 27 July 2007
and that, accordingly, his constitutional complaint of 24 September 2007 had
been introduced within the applicable two-month time-limit (see paragraphs
18-20 and 34 above).
Nevertheless, relying on the letter of the
President of the Constitutional Court of 25 April 2008 (see paragraph 27
above), the Government objected that, concerning this part of the application,
the applicant had failed to respect the requirement of exhaustion of domestic
remedies under Article 35 § 1 of the Convention, as he had
failed to pursue any compensation claims he might have under the State
Liability Act.
The applicant disagreed, and argued that the
Government had failed to show that the State Liability Act was an appropriate
means, either in theory or in practice, of obtaining redress in respect of the
object of the application, or that any claim made under that Act would have had
reasonable prospects of success.
The Court reiterates the following general
principles, which are of relevance in this case, as formulated and summarised,
for example, in its judgment in the case of Akdivar and Others v. Turkey
(16 September 1996, §§ 65 - 69, Reports of Judgments and Decisions 1996-IV):
- The rule of exhaustion of domestic remedies obliges
those seeking to bring their case against the State before an
international judicial or arbitral organ to first use the remedies provided by
the national legal system. Consequently, States are dispensed from answering
before an international body for their acts before they have had an
opportunity to put matters right through their own legal system. The rule is
based on the assumption, reflected in Article 13 of the Convention, with which it
has close affinity, that there is an effective remedy available in respect of
the alleged breach in the domestic system, whether or not the provisions of the
Convention are incorporated in national law. In this way, it is an important
aspect of the principle that the machinery of protection established by the
Convention is subsidiary to the national systems safeguarding human rights.
- Under this rule, an applicant should have normal
recourse to remedies that are available and sufficient to afford redress in
respect of the alleged breaches. The existence of the remedies in question must
be sufficiently certain not only in theory but in practice, failing which they
will lack the requisite accessibility and effectiveness.
- The rule also requires that the complaints intended to
be made subsequently before the Court should have been made to the appropriate
domestic body, at least in substance and in compliance with the formal
requirements and time-limits laid down in domestic law and, further, that any
procedural means that might prevent a breach of the Convention should have been
used.
As to the Government’s non-exhaustion argument, which
concerns a claim for compensation under the State Liability Act, the Court
observes that such a claim could in no way lead to rectification of the
Constitutional Court’s decision. Furthermore, the Court observes that for any
such compensation claim to be successful, the elements of damage and causal
link would have to be established, which in turn presupposes that a hypothetical
outcome of the proceedings, had the applicant’s constitutional complaint not
been rejected as belated, would have to be established.
However, there is no indication in law and practice that an
ordinary court in Slovakia has jurisdiction to examine those elements (see, mutatis
mutandis, Popivčák v. Slovakia, no. 13665/07, §§ 28-9, 33 and 58-60, 6 December 2011).
In conclusion, the Court finds that the
Government failed to show that the remedy advanced by them was available to
the applicant and sufficient to afford him redress in respect of the breaches he
alleges, and that its existence was sufficiently certain, not only in theory
but in practice. Their objection must accordingly be dismissed.
The Court notes that the relevant part of the application
is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
The applicant complained that the Constitutional
Court’s decision of 6 December 2007 declaring his constitutional complaint
inadmissible was contrary to his right of access to court.
For the reasons summarised above, the Government
admitted that the erroneous information as to the date when the judgment on the
action against the applicant had become final and binding had resulted in the
applicant being deprived of his right to complain under Article 127 of the
Constitution.
The Court reiterates that the right to a fair
hearing, guaranteed by Article 6 § 1 of the Convention, must be construed in
the light of the principle of the rule of law, which requires that all
litigants should have an effective judicial remedy enabling them to assert
their civil rights (see Běleš and Others v. the Czech Republic, no. 47273/99, § 49, ECHR 2002-IX). In this way, the right to a fair
hearing embodies the “right to a court”, one aspect of which is the right
of access, that is the right to institute proceedings before courts in
civil matters (see Golder v. the United Kingdom, 21 February 1975, § 36,
Series A no. 18; Prince Hans-Adam II of Liechtenstein v. Germany [GC],
no. 42527/98, § 43, ECHR 2001-VIII; and Roche v. the United Kingdom
[GC], no. 32555/96, § 116, ECHR 2005-X). In other words, everyone has the right
to have any claim relating to his or her civil rights and obligations brought
before a court or tribunal (see, among many other authorities, Waite and
Kennedy v. Germany [GC], no. 26083/94, § 50, ECHR 1999-I).
The Court also reiterates that a restrictive
interpretation of the right of access to court guaranteed by Article 6 § 1
would not be consonant with the object and purpose of the provision (see De
Cubber v. Belgium, 26 October 1984, § 30, Series A no. 86).
The Court further reiterates that Article 6 § 1
does not guarantee a right of appeal as such. However, where several
levels of jurisdiction exist, each instance must comply with the guarantees of
Article 6, including the right of effective access to court (see, mutatis
mutandis, Brualla Gómez de la Torre v. Spain, 19 December 1997, §
37, Reports 1997-VIII). Moreover, parties to proceedings must be able to
exercise usefully the rights of appeal or other remedies available to them (see
Hadjianastassiou v. Greece, 16 December 1992, § 33, Series A
no. 252, and Marpa Zeeland B.V. and Metal Welding B.V. v. the Netherlands,
no. 46300/99, § 48, ECHR 2004-X).
The Court furthermore reiterates that the
concept of a fair hearing also implies the right to adversarial proceedings,
according to which the parties must have the opportunity not only to make known
any evidence necessary for their claims to succeed, but also to have knowledge
of, and to comment on, all evidence adduced or observations made, with a
view to influencing the court’s decision (see, for example, Krčmář
and Others v. the Czech Republic, no. 35376/97, § 40, 3 March 2000).
As has already been noted above, the applicant’s
constitutional complaint of 24 September 2007 was declared inadmissible on 6
December 2007 on the grounds that it had been made belatedly.
As to the timeliness of the applicant’s
constitutional complaint, the Court observes that the crucial criterion for its
assessment was the date on which the contested decision became final and
binding.
For that matter, the applicant based his calculation of the
time-limit on the start date of 28 July 2007, and provided the Constitutional Court with prima facie evidence in that respect (see paragraph 21 and
23 above). As has been admitted by the Government (see paragraph 45 above), the
applicant’s constitutional complaint was actually lodged in time.
However, of its own initiative, the Constitutional Court obtained information as to when the judgment had become final, which
was different from the information submitted by the applicant (see paragraphs
22 and 25 above).
The Court also notes that the Constitutional Court based its inadmissibility decision exclusively on the latter information,
without advising the applicant of the discrepancy in the dates or affording him
an opportunity to comment.
Finally, the Court observes that, as has been
admitted by the Government, it was an error in the information as to the start
date of the applicable time-limit which led the Constitutional Court to reject the
applicant’s constitutional complaint.
In view of the above considerations, the Court
concludes that by depriving the applicant of the opportunity to comment on
information procured by the Constitutional Court of its own initiative which
was crucial for its decision, coupled with the fact that the information was incorrect,
the applicant’s right of access to court has been violated.
There has accordingly been a breach of Article 6 § 1 of the
Convention.
II. REMAINING ALLEGED VIOLATIONS
In connection with the complaints mentioned
above, the applicant also relied on Article 13 of the Convention. Citing Article
14 of the Convention, as well as Article 1 of Protocol No. 12, the applicant
also complained that he had been treated discriminatorily when compared with
the Customs Directorate on account of the latter’s being a public authority.
The Court observes, that, to a significant
extent, the substance of these complaints overlaps with that of the complaints already
examined under Article 6 § 1 of the Convention. The Court
finds that a separate examination of the same matters under any of the other
Convention provisions is not justified.
As to the remainder of the complaints, in the light
of all the material in its possession, and in so far as the matters complained
of are within its competence, the Court finds that they do not disclose any
appearance of a violation of the rights and freedoms set out in the provisions
relied upon.
It follows that the remainder of the application is in any
event manifestly ill-founded and must be rejected in accordance with Article 35
§§ 3 (a) 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 18,331.41 euros (EUR) in
respect of pecuniary damage, which consisted of the amount he had had to pay
the claimant under the contested judgments. He also claimed EUR 33,193.92 in
respect of non-pecuniary damage.
The Government contested both claims, the former
in principle, the latter as to its amount, which they considered overstated.
The Court does not discern any causal link
between the violation found (see paragraph 63 above) and the pecuniary damage
alleged; it therefore rejects this claim. On the other hand, it awards the applicant
EUR 7,800 in respect of non-pecuniary damage.
B. Costs and expenses
The applicant also claimed EUR 11,201.79,
consisting of the court fees paid in the civil proceedings (EUR 2,245.73), the
court fees paid in the enforcement proceedings (EUR 400.32), legal fees (EUR 2,846.38),
administrative and other expenses (EUR 398.33), and compensation for time lost
due to the litigation (EUR 5,311.03).
Of the amount claimed in respect of legal fees,
as supported by documents, the equivalent of some EUR 500 concerned the
proceedings before the Constitutional Court and the Court; the remainder
concerned proceedings before the ordinary courts.
As to the claim in respect of the legal fees,
the Government asked the Court to grant the applicant compensation only for reasonably
incurred costs and expenses before the Constitutional Court and the Court. As
for the remaining claims, the Government objected that they were not supported
by any documents.
In the present case, the Court observes that, as
regards the administrative and other expenses, and the compensation for lost
time, the claim has been wholly unsubstantiated. It accordingly has to be
dismissed.
As to the remaining claims, bearing in mind the
information in its possession and the above-mentioned criteria, in particular
the violation found (see paragraph 63 above), and noting that the applicant was
granted legal aid under the Council of Europe legal-aid scheme (see paragraph 2
above), the Court cannot justify making any further award.
C. Default interest
The Court considers it appropriate that the
default interest rate 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
1. Declares unanimously the complaint under
Article 6 § 1 of the Convention concerning the alleged
lack of access to court admissible and the remainder of the application
inadmissible;
2. Holds unanimously that there has been a
violation of Article 6 § 1 of the Convention;
3. Holds by six votes to one
(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 7,800 (seven
thousand eight hundred 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;
4. Dismisses unanimously the remainder of the
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 23 October 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
In accordance with Article 45 § 2 of the Convention and
Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Gyulumyan is
annexed to this judgment.
J.C.M.
S.Q.
PARTLY DISSENTING OPINION OF JUDGE GYULUMYAN
In the present case I voted with the majority in finding a
violation of Article 6 § 1 of the Convention. However, I beg to differ from the
Court’s conclusions on just satisfaction under Article 41 of the Convention.
In my opinion the assessment of non-pecuniary damage in this
case should have taken account of the fact that the applicant himself
contributed to the rejection of his constitutional complaint as being made
belatedly, by waiting until the very end of the two-month period allowed before
lodging his complaint with the Constitutional Court.
In so far as this fact was not taken into consideration by the
majority, I consider the amount awarded in respect of non-pecuniary damage to
be excessive.
Even leaving this point aside, I am of the view that the sum
in respect of non-pecuniary damage in this case was not determined on an equitable
basis.
