FOURTH SECTION
DECISION
Application no. 10275/06
by Mária BARDOŠOVÁ
against Slovakia
The European Court of Human Rights (Fourth Section), sitting on 6 July 2010 as a Chamber composed of:
Nicolas Bratza, President,
Giovanni Bonello,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Ledi Bianku,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 10 March 2006,
Having regard to the declaration submitted by the respondent Government requesting the Court to strike part of the application out of the list of cases and to the applicant's reply,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms Mária Bardošová, is a Slovak national who was born in 1953 and lives in Cork, Ireland. As of 31 August 2009 she was represented before the Court by Ms V. Strážnická, a lawyer practising in Bratislava. The Slovak Government (“the Government”) were represented by their Agent, Mrs M. Pirošíková.
The facts of the case, as submitted by the parties, may be summarised as follows.
A. The circumstances of the case
1. Civil proceedings initiated by the applicant
On 29 January 1999 the applicant lodged a civil action with the Bratislava I District Court. She sought determination of her co-ownership title to real property.
The District Court experienced certain difficulties in summoning and hearing the defendant who lived in the United States of America. Several first-instance procedural decisions and decisions on interim measures were examined by the Bratislava Regional Court, and also by the Supreme Court on one occasion.
On 5 December 2006 the District Court delivered a judgment in the case. At the defendant's request, it corrected its reasoning on 15 February 2007.
On 21 May 2009 the Regional Court quashed the judgment of 5 December 2006 and remitted the case to the District Court. It declared inadmissible the appeal against the decision of 15 February 2007.
The proceedings are pending.
2. Constitutional proceedings
On 28 June 2004 the applicant complained to the Constitutional Court about the excessive length and unfairness of the above proceedings. On 16 February 2005 the Constitutional Court declared admissible her complaint about the length of the proceedings. As the applicant had withdrawn her remaining complaint, it discontinued the proceedings in this respect.
On 7 February 2005 the applicant requested the Constitutional Court to hold an oral hearing in her case. She explained that she was living abroad and asked the Constitutional Court to inform her about the date of the hearing reasonably in advance. She expressed the wish not to hold a hearing between 20 June and 14 July 2005 due to her study stay in Japan.
The applicant's lawyer was informed in a faxed letter dated 13 February 2006 that a hearing would take place before the Constitutional Court on 22 February 2006. The lawyer was further informed (i) that the District Court did not insist on an oral hearing and its representative would not be present at the hearing, and (ii) that the hearing would take place regardless of the applicant's presence. It appended the District Court's letter of 26 September 2005, which enumerated the District Court's procedural steps taken in the proceedings.
On 20 February 2006 the applicant sent a letter to the Constitutional Court as a response to the above Constitutional Court's letter sent to her lawyer. She expressed her wish to be present at an oral hearing. She stated that she could not be present at the hearing on 22 February due to her working schedule. As the hearing would take place regardless of her presence, she asked the Constitutional Court to send the adopted decision to her lawyer by fax as soon as possible.
On 21 February 2006 the applicant's lawyer asked the Constitutional Court to postpone the hearing and to inform the applicant of the date at least one month in advance. He informed the Constitutional Court that, due to the applicant's disagreement with the fact that the oral hearing would be held in her absence, he would not be present at the hearing.
On 22 February 2006 the hearing took place. The parties and their representatives were not present. The Constitutional Court noted that the applicant's representative and the District Court had been informed about the hearing. The case was adjourned until 28 February 2006 in order to deliver the decision.
On 23 February 2006 the Constitutional Court informed the applicant's lawyer and the District Court by fax that the decision would be delivered in the Constitutional Court's hearing room on 28 February 2006.
In its judgment the Constitutional Court found that the District Court had violated the applicant's right under Article 48 § 2 of the Constitution to a hearing without unjustified delay. It held that the case was not factually complex and that the applicant's conduct had not contributed to the length of the proceedings.
It acknowledged that the case was complex from the procedural angle because the defendant lived in the United States of America. It stated that, during a period of seven years, the District Court had not taken any evidence, although the real property at issue was located in the Bratislava I District. It found no obstacles preventing the court from dealing with the facts of the case, especially since the defendant was represented by a lawyer.
The Constitutional Court did not award any just satisfaction on the ground that the excessive length had been partially caused by objective reasons. It ordered the District Court to proceed without further delay and ordered reimbursement of the applicant's costs.
B. Relevant domestic law
The proceedings before the Constitutional Court are governed by the Constitutional Court Act 1993.
Section 16(5) provides that notification of an oral hearing is to be personally delivered (do vlastných rúk) to the parties to the proceedings and their representatives in such a way that after the delivery the parties will have sufficient time, usually at least five days, to prepare for the hearing.
Pursuant to section 30(1), an oral hearing is held in proceedings on, inter alia, natural or legal persons' complaints under Article 127 of the Constitution. The Constitutional Court may refrain from holding an oral hearing, subject to the parties' agreement, where it cannot be expected that relevant new information will thus be obtained (paragraph 2 of section 30).
Section 30(3) entitles the parties and their representatives to attend oral hearings.
COMPLAINTS
1. The applicant complained under Article 6 § 1 of the Convention about the length of the proceedings.
2. Relying on the same provision she complained that individual decisions and actions of the ordinary courts had violated her right to a fair trial, especially in that they had taken into account documents which she considered unlawful.
3. Finally she alleged a violation of her right to a fair trial and her right of access to a court in that the Constitutional Court had informed her lawyer about the date of the hearing at a short notice, as a result of which she could not be present at the hearing. She complained that the hearing had been held in her absence.
THE LAW
A. Length of proceedings
The applicant complained about the length of the proceedings. She relied on Article 6 § 1 of the Convention which, in its relevant part, provides as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
On 12 January 2010 the Court received the Government's unilateral declaration signed on the same day. The Government acknowledged both the applicant's victim status within the meaning of Article 34 of the Convention and the unreasonable duration of the domestic proceedings in which the applicant had been involved. They offered to pay to the applicant the sum of EUR 6,300 (six thousand three hundred euros) to cover any pecuniary and non-pecuniary damage together with any costs and expenses incurred by the applicant with respect to the violation of her right under the Convention. They suggested that the above information be accepted by the Court as “any other reason” justifying the striking out of the case of the Court's list of cases, as referred to in Article 37 § 1 (c) of the Convention. In the event of the Court's decision pursuant to Article 37 § 1 of the Convention, the Government undertook to pay to the applicant the declared sum within three months from the date of notification of the decision. In the event of failure to pay this sum within the said three-month period, they undertook to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. This payment would constitute the final settlement of the case.
In a letter of 20 February 2010 the applicant's lawyer disagreed with the terms of the declaration principally since it did not comprise the acknowledgment of a violation of the applicant's right to a fair trial. She expressed the view that the striking out of the application might be considered as a denial of justice by the Court. She also stated that the applicant could still be considered a victim as regards the excessive length of proceedings.
The Court reiterates that it may strike out an application or a part thereof under Article 37 § 1(c) if
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
It also reiterates that, under certain circumstances, it may do so on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.
The Court has established in a number of cases, including those brought against Slovakia, its practice concerning complaints about the violation of one's right to a hearing within a reasonable time (see, for example, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006-V; and Fekiač and Fekiačová v. Slovakia, no. 39202/04, §§ 19-26, 10 November 2009).
Having regard to the nature of the admissions contained in the Government's declaration, as well as the amount of compensation proposed (which is consistent with the amounts awarded in similar cases), the Court considers that it is no longer justified to continue the examination of this complaint (see, for the relevant principles, Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; and also Haran v. Turkey, no. 25754/94, 26 March 2002). Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this part of the application (Article 37 § 1 in fine).
It should therefore be struck out of the list in accordance with Article 37 § 1 (c) of the Convention.
B. Remaining complaints
Relying on Article 6 § 1 the applicant further alleged a violation of her right to a fair trial before the ordinary courts and the Constitutional Court.
On 13 November 2009, 20 February and 14 May 2010 the applicant's lawyer submitted additional arguments concerning the alleged violation of the applicant's right to a fair trial and access to a court in the constitutional proceedings. She stated that the applicant had been put at a disadvantage in comparison with the District Court. She argued that the applicant's lawyer had been informed about the District Court's letter of 26 September 2005 only in the Constitutional Court's letter of 13 February 2006 and had not been asked to submit any comments.
The applicant further stated that pursuant to the relevant legislation, parties to proceedings and their representatives have the right to be present at an oral hearing before the Constitutional Court. However, the latter decided to hold a hearing in the applicant's absence. The hearing had been held on 28 February and not on 22 February and neither the applicant nor her lawyer had been informed about the change of date. Finally, the applicant complained that, contrary to the legislation, the Constitutional Court had corresponded exclusively with her lawyer.
However, in the light of all the materials 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 Convention or its Protocols.
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.
For these reasons, the Court
Takes note of the terms of the respondent Government's declaration and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides unanimously to strike the application out of its list of cases in so far as it relates to the length of the proceedings in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the application inadmissible.
Lawrence EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy