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FOURTH
SECTION
CASE OF BOŠKOVÁ v. SLOVAKIA
(Application
no. 21371/06)
JUDGMENT
STRASBOURG
2
June 2009
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 Bošková v. Slovakia,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza,
President,
Giovanni Bonello,
David Thór
Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
Ledi Bianku,
Nebojša
Vučinić, judges,
and Fatoş
Aracı, Deputy
Section Registrar,
Having
deliberated in private on 12 May 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 21371/06) 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, Mrs Iveta
Bošková (“the applicant”), on 16 May 2006.
- The
applicant was represented by Ms H. Dobosová, a lawyer
practising in Bratislava. The Slovak Government (“the
Government”) were represented by their Agent, Mrs M.
Pirošíková.
- On
2 April 2008 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 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1963 and lives in Bratislava.
- On
3 April 2002 the applicant lodged an action against her husband with
the Bratislava IV District Court, seeking a judicial determination of
their parental rights and obligations in respect of their child.
- On
30 January 2003 the District Court delivered an interim measure in
the applicant's favour.
- On
20 March 2003 the District Court gave the applicant custody of the
child. It did not order the defendant to pay any maintenance. On
13 November 2003 the Bratislava Regional Court quashed the
judgment in its part concerning maintenance and remitted the case to
the District Court. The view was expressed that the court of first
instance had not sufficiently established the relevant facts. The
Regional Court ordered the District Court to proceed along the lines
specified.
- In
a judgment of 21 September 2004 the District Court determined the
issue. On 23 September 2005 the Regional Court again quashed the
relevant part of the judgment and remitted the case to the District
Court. It found that the District Court had not sufficiently
established the relevant facts and explained to the latter how the
case should be dealt with.
- On
29 November 2005 the applicant withdrew the action as she had reached
an out-of-court settlement with the defendant.
- The
District Court thus discontinued the proceedings on 17 January 2006.
The decision became final on 17 February 2006.
- Meanwhile,
on 10 January 2006, 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. The
Constitutional Court established that the case was not complex and
that no delays could be imputed to the applicant. It noted that the
District Court had acted ineffectively. In view of the subject-matter
of the proceedings, their overall duration had been excessive. The
Constitutional Court concluded that the finding of a violation
represented in itself sufficient just satisfaction in the
circumstances of the case, especially as the applicant had withdrawn
the action. It did not order the District Court to proceed with the
case on the ground that the applicant had withdrawn the action. It
ordered the District Court to reimburse the applicant's legal costs.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which in its relevant
part reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
A. Admissibility
- The
Government did not contest that argument but expressed the view that
the applicant could no longer claim to be a victim of a violation of
her right to a hearing within a reasonable time. They argued that the
Constitutional Court had expressly acknowledged such a violation and
had ordered reimbursement of the applicant's legal costs. They noted
that the Court had not yet examined a case where the Constitutional
Court had not awarded any just satisfaction to the applicant on the
ground that he or she had withdrawn the action due to an out-of-court
settlement.
- The
applicant reiterated her complaint.
- The
Court finds that, in respect of the alleged violation of the
applicant's right to a hearing within a reasonable time, it is
irrelevant that the applicant withdrew her claim and that, as a
result, the ordinary courts did not ultimately determine the merits
of the case (see ČíZ v. Slovakia, no. 66142/01, §
61, 14 October 2003).
- It
observes that the proceedings started on 3 April 2002 and ended
on 17 February 2006. The period under the Court's consideration is
thus three years and almost eleven months for two levels of
jurisdiction.
- On
10 January 2006 the Constitutional Court found a violation of the
constitutional equivalent of Article 6 § 1 of the Convention but
it did not award any just satisfaction in respect of non-pecuniary
damage on the ground that the applicant had withdrawn her claim due
to an out-of-court settlement. The Court reiterates that whether the
redress afforded to the applicant was adequate and sufficient having
regard to Article 41 of the Convention falls to be determined in the
light of the principles established under the Court's case-law (see,
Scordino v. Italy (no. 1) [GC], no. 36813/97, §§
178-213, ECHR 2006-..., and Cocchiarella v. Italy [GC], no.
64886/01, §§ 65-107, ECHR 2006-...). These include, most
notably, the amount of the compensation awarded to the applicant and
the effectiveness of the preventive measure applied (see Sika v.
Slovakia (no. 3), no. 26840/02, § 54, 23 October 2007).
- Although
the proceedings ended following the applicant's initiative, the Court
cannot overlook the fact that they had been pending for almost four
years and that the Constitutional Court had itself acknowledged the
District Court's responsibility for delays in those proceedings.
Having regard to the facts of the case and to the principles
established in its case-law, the Court considers that the redress
obtained by the applicant at the domestic level was not adequate and
sufficient. Firstly, even though the proceedings unexpectedly came to
an end immediately following the Constitutional Court's ruling, the
Constitutional Court did not in fact order the District Court to
proceed diligently with the case. Secondly, the applicant did not
obtain any compensation (see, mutatis mutandis, Dubjaková
v. Slovakia (dec.), no. 67299/01, 19 October 2004 and Becová
v. Slovakia (dec.), no. 23788/06, 18 September 2007). In
view of the above, it concludes that the applicant did not lose her
status as a victim within the meaning of Article 34 of the Convention
(see, for example, Bič v. Slovakia, no. 23865/03, §
37, 4 November 2008).
- The
Court notes that this part of 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
- 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 and Laino v. Italy [GC], no. 33158/96, §
18, ECHR 1999 I).
- 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).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
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 13 OF THE CONVENTION
- The
applicant further complained that she had no effective remedy at her
disposal within the meaning of Article 13 of the Convention, which
reads:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Government contested that argument.
- The
Court reiterates that Article 13 of the Convention guarantees the
availability at the national level of a remedy to enforce the
substance of the Convention rights and freedoms. The applicant used
the possibility to lodge a complaint under Article 127 of the
Constitution, which was at her disposal, and the Constitutional Court
found a violation of her right to a hearing without unjustified delay
guaranteed by the constitutional equivalent of Article 6 § 1 of
the Convention. The fact that the redress obtained from the
Constitutional Court was not sufficient for the Convention purposes
does not render the remedy under Article 127 of the Constitution in
the circumstances of the present case incompatible with Article 13 of
the Convention (see Šidlová v. Slovakia, no.
50224/99, § 77, 26 September 2006).
It
follows that this complaint 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 6,639 euros (EUR) in respect of non-pecuniary
damage.
- The
Government contested the claim.
- The
Court considers that the applicant must have sustained non-pecuniary
damage. Ruling on an equitable basis and having regard to its
case-law and to what was at stake for the applicant, it awards EUR
2,200 under that head.
B. Costs and expenses
- The
applicant claimed EUR 1,480 for the costs and expenses incurred
before the domestic courts, including the Constitutional Court, and
EUR 1,341 for those incurred before the Court. She further claimed
EUR 415 in respect of translation costs.
- The
Government contested all claims except of the one concerning the
translation costs.
-
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 are reasonable as to quantum. To be recoverable,
the domestic costs and expenses must also be incurred to prevent or
obtain redress for the violation found. In the
present case, having regard to the fact that the costs of the
applicant's legal representation before the Constitutional Court were
reimbursed at the domestic level, the Court rejects the claim for
costs and expenses incurred in the constitutional proceedings. It
also rejects the remaining claims as regards the domestic costs
because it finds no indication that those costs were incurred in
order to prevent or obtain redress for the violation found (see
Záborský and Šmáriková
v. Slovakia, no. 58172/00, §
46, 16 December 2003). Having regard to the documents in
its possession, the Court considers it
reasonable to award the applicant, who was represented by a lawyer,
the overall sum of EUR 1,500 for the costs and expenses incurred
before the Court, including the translation costs.
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 under Article 6 § 1
of the Convention 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 2,200 (two thousand two hundred euros), plus any tax that may
be chargeable, in respect of non-pecuniary damage;
(ii)
EUR 1,500 (one thousand five 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 2 June 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
