AS TO THE ADMISSIBILITY OF
Application no. 63946/00
by Jolana KONČEKOVÁ
The European Court of Human Rights (Second Section), sitting on 9 May 2006 as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr G. Bonello,
Mr M. Pellonpää,
Mr K. Traja,
Mr L. Garlicki,
Ms L. Mijović,
Mr J. Šikuta, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged on 19 November 2000,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mrs Jolana Končeková, is a Slovakian national, who was born in 1921 and lived in Rybník. She was represented before the Court by Mr Dušan Konček, her son, who is also a Slovakian national and lives in Košice. By a letter received at the Court on 24 March 2006 Mr Konček informed the Court that on 24 February 2006 the applicant had died and that he wished to pursue the application in her stead. The respondent Government were represented by their agents, Mr P. Kresák, succeeded by Mrs A. Poláčiková as of February 2005.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Proceedings on the applicant’s action for unpaid rent
On 28 January 1998 the applicant lodged an action against a commercial company with the Revúca District Court (Okresný súd). She sought an order for the payment of 12,0211 Slovakian korunas (SKK), plus interest, pursuant to four contracts for the lease of land dated 26 December 1994.
On 13 May 1998 the Revúca District Court transmitted the case-file to the Banská Bystrica District Court for reasons of territorial competence. The latter requested that the territorial competence in the case be determined by the Banská Bystrica Regional Court (Krajský súd).
On 29 June 1998 the Regional Court decided that the case fell within the territorial competence of the Banská Bystrica District Court.
The Banská Bystrica District Court fixed hearings for 30 September 1998 and 21 June and 6 October 1999. They however had to be adjourned due to the absence of the parties.
On 11 December 2002 the Banská Bystrica District Court listed a hearing for 20 January 2003 and requested that the applicant submit further information. She replied on 20 December 2002 and apologised for not being able to take part in the forthcoming hearing.
On 20 January 2003 the District Court granted the action. It ordered the defendant company to pay the applicant the rent arrears, plus interest and costs. The judgment became final and binding on 3 March 2003.
On 29 October 2003 a judicial enforcement officer commissioned by the applicant informed her that he had been unable to contact the defendant company or its statutory representatives, or to trace any of its executable movable or immovable assets. He proposed that the applicant withdraw her petition for enforcement.
2. The first proceedings before the Constitutional Court
On 25 April 2000 the applicant lodged a petition (podnet) with the Constitutional Court (Ústavný súd) under Article 130 § 3 of the Constitution, complaining of undue delay in the proceedings.
On 21 June 2000 the Constitutional Court declared the petition admissible. On 26 September 2000 it found that the Banská Bystrica District Court had violated the applicant’s right under Article 48 § 2 of the Constitution to a hearing without unjustified delay in the above proceedings. It considered that the case was neither legally nor factually complex. The applicant had contributed to the overall length of the proceedings to some extent by her absence from hearings. The Constitutional Court noted that the District Court had been inactive for 7 months in 1998 and 1999 and that it had taken no procedural steps after 6 October 1999.
Upon the service of the Constitutional Court’s finding (nález) on the applicant and the District Court, it became final and binding on 11 October 2000.
3. The second proceedings before the Constitutional Court
On 11 October 2002 the applicant lodged a complaint (sťažnosť) with the Constitutional Court, pursuant to the amended Article 127 of the Constitution, in force since 1 January 2002. She objected that, despite the Constitutional Court’s finding of 26 September 2000, there had been no progress in the case. She invited the Constitutional Court to find a recurring violation of her right under Article 48 § 2 of the Constitutional Court to a hearing without unjustified delay, and under Article 6 § 1 of the Convention to a hearing within a reasonable time. She further invited the Constitutional Court to order the District Court to proceed with her case without delay, and to award her SKK 150,0002 in just satisfaction.
On 16 November 2002 the Constitutional Court declared the complaint admissible. On 6 March 2003 it found a violation of the applicant’s above constitutional and Convention rights. This finding formally concerned only the period after 11 October 2000 when its first finding of 26 September 2000 had become final and binding. The Constitutional Court observed that, for a period of more than 2 years following that finding, the District Court had taken no procedural steps but had only called one hearing and had once requested the applicant to submit further information. The Constitutional Court noted that the proceedings had commenced on 28 January 1998, and took into account their total duration. It further remarked that the District Court seemed to have ignored its first finding of 26 September 2000. The Constitutional Court found that, in the circumstances, it was appropriate to award the applicant just satisfaction in an amount higher than the amount which she had claimed in her action. It thus awarded her SKK 50,0003 for just satisfaction and ordered the District Court to reimburse her legal costs.
B. Relevant domestic law and practice
The Constitution and the Constitutional Court Practice
Article 48 § 2 provides, inter alia, that every person has the right to have his or her case tried without unjustified delay.
Pursuant to Article 130 § 3, as in force until 30 June 2001, the Constitutional Court could commence proceedings upon a petition lodged by a natural or legal person claiming that their rights had been violated.
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.
As from 1 January 2002, the Constitution has been amended in that, inter alia, natural and legal persons can complain about a violation of their fundamental rights and freedoms pursuant to Article 127. 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 the excessive length of proceedings (for further details see, e.g., Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01, 60226/00, ECHR 2002-IX)
The applicant originally complained under Article 6 § 1 of the Convention that the rent proceedings had lacked the guarantees of a fair hearing by a tribunal established by law, and that the length of these proceedings had been unreasonable. In a letter of 17 January 2005, her legal representative informed the Court that the applicant no longer wished to pursue the complaint concerning the alleged unfairness of the proceedings and the lack of a tribunal established by law.
The applicant complained of violations of Article 6 § 1 of the Convention which, in so far as relevant, provides as follows:
“1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by a ... tribunal established by law...”
The Court does not consider it necessary to deal with the applicant’s original complaint of unfairness which she has withdrawn.
As regards her remaining complaint about the length of the proceedings, the Government pointed out the matter had been examined twice by the Constitutional Court. By its respective decisions of 26 September 2000 and 6 March 2003, the Constitutional Court examined the whole duration of the proceedings and found that the applicant’s right to a hearing without unjustified delay had indeed been violated. In the latter decision the Constitutional Court also awarded the applicant just satisfaction. The Constitutional Court based its assessment of the case on the criteria established by the Court’s case-law. The amount of just satisfaction had also been determined on the basis of the same criteria, and the total length of the proceedings had been taken into consideration. The Government concluded that, in the light of the measures taken in the applicant’s favour at the national level, she could no longer be considered a victim, within the meaning of Article 34 of the Convention.
The applicant emphasised that the Constitutional Court’s finding of 6 March 2003 formally concerned the period after 11 October 2000. She contended that the just satisfaction award was limited to that period. She considered that this award was inadequate in view of the overall length of the proceedings and that it was substantially lower than the just satisfaction awarded by the Court in comparable situations.
The Court considers that, in view of the Constitutional Court’s findings of 26 September 2000 and 6 March 2003, the crucial question is whether the applicant can still claim to be a victim, within the meaning of Article 34 of the Convention, of a violation of her right to a hearing within a reasonable time.
The Court reiterates that an applicant’s status as a “victim” within the meaning of Article 34 of the Convention depends on whether the domestic authorities acknowledged, either expressly or in substance, the alleged infringement of the Convention and, if necessary, provided appropriate redress. Only when these conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application (see Cataldo v. Italy (dec.), no. 45656/99, 3 June 2004, with further references).
The Court notes that, in its second review, the Constitutional Court in fact examined the whole duration of the applicant’s proceedings and found expressly that her right to a hearing without unjustified delay had been violated. It also ordered financial redress (see Andrášik and Others, cited above). The applicant’s status as a victim thus depends on whether the level of compensation was sufficient, having regard to the Court’s awards of just satisfaction under Article 41 of the Convention (see, most recently, Scordino v. Italy (no. 1) [GC], no. 36813/97, § 202, ECHR 2006-..., Cocchiarella v. Italy [GC], no. 64886/01, § 93, ECHR 2006-... and also Dubjaková v. Slovakia (dec.), no. 67299/01, 19 October 2004, with further references).
The Court notes that the domestic award was lower than its awards in comparable cases. It emphasises the importance of a reasonable amount of just satisfaction being offered by the domestic system for the remedy in question to be considered effective under the Convention. Whether the amount awarded may be regarded as reasonable, however, falls to be assessed in the light of all the circumstances of the case. These include also the value of the award judged in the light of the standard of living in the State concerned and the fact that the remedy in the national system is closer and more accessible than an application to the Court and that it is faster and in the applicant’s own language (see Scordino, cited above, §§ 206 and 268 and Dubjaková, cited above).
In the light of all the material in its possession, including the promptness of the Constitutional Court’s findings, the award made by it in its second finding, the conduct of the applicant in the proceedings and what was at stake for her in them, the Court considers that the sum accorded to the applicant by the Constitutional Court cannot be considered manifestly unreasonable in view of the Court’s case-file in similar cases (see Scordino, cited above, § 214, Cataldo, cited above, Dubjaková, cited above and, a contrario, Švolík v. Slovakia, no. 51545/99, § 41, 15 February 2005).
The Court concludes therefore that the applicant can no longer claim to be a “victim”, within the meaning of Article 34 of the Convention, of the alleged violation of her right to a hearing within a reasonable time.
It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to discontinue the application of Article 29 § 3 of the Convention and declares the application inadmissible.
Michael O’BOYLE Nicolas
KONČEKOVÁ v. SLOVAKIA DECISION
KONČEKOVÁ v. SLOVAKIA DECISION