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THIRD
SECTION
CASE OF VISKUPOVÁ AND OTHERS v. SLOVAKIA
(Application
no. 43730/06)
JUDGMENT
STRASBOURG
11
October 2011
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 Viskupová
and Others v. Slovakia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Corneliu Bîrsan,
Alvina
Gyulumyan,
Egbert Myjer,
Ján
Šikuta,
Luis López Guerra,
Nona
Tsotsoria, judges,
and Santiago
Quesada,
Section Registrar,
Having
deliberated in private on 20 September 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 43730/06)
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
four Slovak nationals, Ms Klementína Viskupová,
Ms Anna Hermansová, Mr Jozef Stankovič and Ms
AlZbeta Pichňová (“the applicant”), on 9
October 2006.
- The
applicants, of whom Ms Viskupová had been granted legal aid,
were represented by Ms M. Čechová, a lawyer
practising in Pezinok.
The
Government of the Slovak Republic (“the Government”) were
represented by their Agent, Ms M. Pirošíková.
3. The
applicants alleged, in particular, that, on account of statutory and
practical obstacles and contrary to the requirements of Article 6 §
1 of the Convention, they had not had access to a court with a
view to obtaining enforcement of an adjudicated financial claim
against a State owned enterprise that had been in the
process of liquidation.
- On
26 August 2010 the Court
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
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants, Ms Viskupová, Ms Hermansová,
Mr Stankovič and Ms Pichňová, were born in
1948, 1947, 1945 and 1952 respectively. They are
siblings. The applicants live in Bratislava (Slovakia), and
Ms Hermansová also lives in
Voorschoten (the Netherlands).
A. Property, owners and possessor
- The
applicant Mr Stankovič owns a share in a plot of land. The
applicants each have a share in the estate of their late mother, who
owned the remaining share in that plot. The proceedings for the
division and distribution of the estate would appear to be still
pending.
- The
plot has been de facto occupied by the State in the guise of
a State-owned enterprise (“the defendant”); the
applicants have been seeking compensation for this occupation (see
below).
- The
status and functioning of the defendant were regulated by the
State-owned Enterprises Act (Law no. 111/1990 Coll., as amended).
- On
1 November 1991 the defendant went into liquidation. According to
a publicly available official source,
the liquidation process is ongoing.
- On
15 November 1996 and 1 July 1998 amendments (Laws nos. 317/1996
Coll. and 166/1998 Coll. respectively) to the State-owned Enterprises
Act entered into force.
They
provide, inter alia, that the liquidator of a liquidated
State-owned enterprise has an obligation to publish in the Commercial
Journal (Obchodný vestník) an announcement on
commencement of the liquidation process and to invite those concerned
to register their claims within a given period, on pain of extinction
of those claims.
They
also provide that, by virtue of the commencement of the liquidation
process, any enforcement proceedings against the State-owned
enterprise in question are stayed.
For
details, see paragraphs 29 to 34 in the “Relevant domestic law”
below.
B. Judgment
- On
21 October 1998 the Čadca District Court (Okresný súd)
ruled that the defendant was to pay a sum of money to Mr Stankovič
and to the applicants’ mother’s estate by way of
compensation for unjustified enrichment arising from the defendant’s
use of the property without valid title.
- The
defendant’s appeal having been declared inadmissible, the
judgment became final and binding (právoplatnosť)
on 15 November 1999.
C. Attempts at enforcement
- Between
2000 and 2005 the applicants contacted the liquidator of the
defendant, the municipality where the defendant has its seat and the
mayor of that municipality, the Supreme Auditing Office, the National
Property Fund, the Ministry for Administration and Privatisation of
National Property, the Ministry of Finance, the Ministry of the
Interior, the police and other public institutions with numerous
requests and complaints, seeking to recover the adjudicated amounts.
These
efforts included, in particular, a letter of 10 May 2000 to the
liquidator, formulated as a final warning prior to a petition for
enforcement, demanding compliance with the judgment in the
applicants’ favour (see paragraph 11 above). However, they met
with no success.
- The
applicants also made several submissions to the courts seeking
judicial enforcement of the judgment.
These
resulted, first, in a decision (uznesenie) of the District
Court of 24 June 2002 to reject the applicants’
claim, on the ground that it was unclear and, despite the court’s
written request, the applicants had failed to provide further
and more specific details.
- The
applicants’ subsequent motion of 20 February 2003 resulted in
the opening of enforcement proceedings against the defendant.
- The
District Court took a number of steps to establish the nature and
details of the applicants’ motion. The applicants’
challenge to all of judges of the District Court, alleging bias, was
also examined and dismissed.
- As
established by the Constitutional Court in its decision of
10 May 2006 (see paragraph 21 below), there are file-notes
in the District Court’s case file, dated 5 and 13 May 2005,
indicating (i) that the case file was to be submitted to the judge
for determination as to whether the proceedings could continue in
view of the provision in the amendments referred to in paragraph 10
above that the proceedings be stayed, and (ii) that the proceedings
were to be stayed as they interfered with the functions of the
liquidator.
On 12
July 2005, however, the District Court invited the liquidator
to report on the progress of the liquidation.
- The
proceedings were eventually discontinued on 24 May 2006, in the
procedural form of a decision (uznesenie), on the ground that,
despite the court’s written request, the applicants had failed
to request the transfer of the proceedings to a judicial enforcement
officer (exekútor) following the entry into force on 1
September 2005 of an amendment (Law no. 341/2005 Coll.) to the
Code of Civil Proceedings (Law no. 99/1963 Coll., as amended –
“the CCP”), under which enforcement of ordinary claims
could no longer be carried out by either the courts or judicial
enforcement officers, but only by the latter (for details see
paragraphs 25 and 26 in the “Relevant domestic law”
below).
No
appeal lay against the decision.
D. Constitutional complaint
- Meanwhile,
on 25 January 2006, the applicants had filed a complaint under
Article 127 of the Constitution (Constitutional Law no. 460/1992
Coll., as amended) (see paragraph 23 below) with the Constitutional
Court (Ústavný súd). They contested the
length of the proceedings in their enforcement petitions and also
invoked, in substance, their right of access to a court.
- The
applicants’ complaint was directed against the District Court;
its President filed observations in reply on 22 February 2006.
It
was submitted that under the amendments referred to in paragraph 10
above, there was a statutory bar on the enforcement proceedings, on
account of which the District Court could not have taken any action
at all in the matter.
- On
10 May 2006 the Constitutional Court declared the applicants’
complaint inadmissible as being manifestly ill-founded.
The
Constitutional Court observed that, pursuant to section 15c(8) of the
State-owned Enterprises Act, proceedings for the enforcement of
financial claims against State-owned enterprises in liquidation were
stayed by operation of law. This provision also applied, by way of
implication, to enforcement proceedings under the CCP. Creditors of
such claims should pursue their claims in the liquidation procedure
under section 15c(2)(a) of that Act and it was the liquidator’s
responsibility under section 15c(2)(g) to settle their claims.
The
applicants had thus chosen an incorrect course of action by seeking
enforcement of the judgment of 21 October 1998 as opposed to
registering their claim under that judgment with the defendant’s
liquidator. The applicants ought to have known the applicable rules.
- The
Constitutional Court concluded that, for the above-mentioned reasons,
there had not been any undue delays in the proceedings before the
District Court and that there had been no infringement of the
applicants’ right of access to a court.
II. RELEVANT DOMESTIC LAW
A. The Constitution
- Article
127 provides:
“1. The Constitutional Court shall
decide 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 a 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 that 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
a person whose rights under paragraph 1 have been violated.”
B. Enforcement
- Until
31 August 2005, if a judgment debtor failed to comply with his or her
adjudicated obligation, the creditor had two essentially equipollent
options of seeking enforcement, by a court under the CCP and by a
judicial enforcement officer under the Judicial Enforcement Code (Law
no. 233/1995 Coll., as amended).
- With
effect from 1 September 2005, Article 251 and other related
provisions of the CCP were amended by Law no. 341/2005 Coll. in that,
with certain exceptions that are not relevant to the present case,
enforcement of adjudicated claims was henceforth to take place under
the Judicial Enforcement Code.
- Under
Article 372m §§ 1 and 3 of the CPP, as amended by Law
no. 341/2005 Coll., creditors seeking enforcement of their
claims before courts had six months from the entry into force of the
amendment to initiate enforcement proceedings under the Judicial
Enforcement Code and to inform the enforcement court
accordingly. Should they fail to do so, enforcement before the courts
was to be discontinued.
- The
status of judicial enforcement officers and the procedures for
enforcement by judicial enforcement officers are governed by the
Judicial Enforcement Code. Under its Article 2 § 1, a judicial
enforcement officer is a person designated and entrusted by the State
with obtaining forcible compliance with judicial and other decisions.
C. State-owned Enterprises Act
- The
Act regulates the status and functioning of State-owned enterprises
(section 1).
- Law
no. 317/1996 Coll. amended the Act with effect from 15 November
1996. It introduced, inter alia, sections 15a to 15e,
providing for detailed rules concerning the liquidation of
State-owned enterprises.
- Section
15c(2)(a) of the amended Act provides:
“In the course of liquidation the liquidator has
an obligation to publish in the Commercial Journal a notice on
commencement of the entry of the [State-owned] enterprise into
liquidation, together with a call for all creditors and other persons
and bodies which are concerned by the enterprise’s entry into
liquidation, to register their claims or other rights within a period
which cannot be shorter than 90 days from the enterprise’s
entry into liquidation, failing which [such claims or rights] become
extinct”.
- Under
Section 15c(2)(g) of the amended Act:
“In the course of liquidation the liquidator has a
duty to settle obligations and claims”.
- Section
15c(7) of the amended Act provided:
“Liquidation of a [State-owned] enterprise cannot
be interrupted by other proceedings under special statute [such as,
for example, enforcement proceedings under the Judicial Enforcement
Code].”
- Law
no. 166/1998 Coll. amended the Act with effect from 1 July 1998.
Among other things, it amended the wording of Section 15c(7) of the
Act as follows:
“Proceedings under special statute [such as, for
example, enforcement proceedings under the Judicial Enforcement Code]
shall be stayed by the [State-owned] enterprise’s entry into
liquidation.”
- Section
15c (7) of the Act was subsequently renumbered as section 15c (8),
without any change in its wording.
D. Reopening of proceedings further to a judgment by
the Court
- Under
Article 228 § 1 (d) of the CCP, civil proceedings may be
reopened where the Court has found a violation of the requesting
party’s Convention rights and where any serious consequences
arising from the violation have not been adequately redressed by the
award of just satisfaction. In principle, however, only proceedings
which have been concluded by means of a judgment (rozsudok)
can be reopened.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants complained that the domestic courts
had inadequately handled their enforcement petitions and that it had
been impossible to obtain enforcement of their adjudicated claim, in
violation of Article 6 § 1 of the Convention, which provides:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ...
by [a] ... tribunal ...”
A. Admissibility
- The
Government relied on the amended provisions of section 15c(2)(a) and
(g) and section 15c(8) of the State-owned Enterprises Act (see
paragraphs 30 to 34 above) and the decision of the Constitutional
Court of 10 May 2006 (see paragraphs 21 and 22 above) and argued,
firstly, that the complaint was incompatible ratione materiae
with the provisions of the Convention. In that respect, they
submitted that the applicants had been required to register
their claim under the judgment of 21 October 1998 (see paragraphs 11
and 12 above) with the defendant’s liquidator, who would then
have been duty-bound to ensure that it be settled. As they had
failed to do so, and as any enforcement proceedings against the
defendant were stayed by operation of law, applicable to the
applicants’ case from the very outset of their enforcement
claim, Article 6 § 1 of the Convention was inapplicable to
their case. For that mater, the Government referred to the Court’s
decision of 13 September 2001 in the application of J.K. v.
Slovakia (no. 38794/97) and submitted that the decision
to discontinue the applicants’ enforcement claim was
merely a procedural decision with no implications for the
applicants’ “civil rights and obligations”.
- Furthermore,
and in any event, the Government considered that the applicants had
failed to exhaust domestic remedies as required by Article 35 §
1 of the Convention, in that they had failed to pursue the lawful
course of action by filing their claim with the defendant’s
liquidator.
- The
applicants disagreed.
- The
Court reiterates that, according to its established case-law, Article
6 § 1 secures to everyone the right to have any claim relating
to his civil rights and obligations brought before a court or
tribunal; in this way it embodies the “right to a court”,
of which the right of access, that is the right to institute
proceedings before courts in civil matters, constitutes one aspect.
However, that right would be illusory if a Contracting State’s
domestic legal system allowed a final, binding judicial decision to
remain inoperative to the detriment of one party. It would be
inconceivable that Article 6 § 1 of the Convention should
describe in detail procedural guarantees afforded to litigants -
proceedings that are fair, public and expeditious - without
protecting the implementation of judicial decisions; to construe
Article 6 as being concerned exclusively with access to a court and
the conduct of proceedings would be likely to lead to situations
incompatible with the principle of the rule of law which the
Contracting States undertook to respect when they ratified the
Convention. Execution of a judgment given by any court must therefore
be regarded as an integral part of the “trial” for the
purposes of Article 6 (see, for example, Hornsby v. Greece,
19 March 1997, § 40, Reports of Judgments and
Decisions 1997 II and Jafarli and Others v. Azerbaijan,
no. 36079/06, § 52, 29 July 2010).
- In
the present case the applicants obtained a court judgment
adjudicating a financial claim in their favour, and that judgment for
payment became final and binding (see paragraphs 11 and 12 above).
- In
chronological terms, the Court considers it of relevance that the
order for payment was issued on 21 October 1998 (see paragraph
11 above) and became final and binding on 15 November 1999 (see
paragraph 12 above), that is, after the amendment to the State-owned
Enterprises Act had entered into force on 15 November 1996 (see
paragraph 29 above), introducing the requirement that claims be
registered with liquidators of State-owned Enterprises on pain of
becoming extinct.
- Accordingly,
the Court has found no grounds for reaching any conclusion other than
that the applicants’ adjudicated claim amounted to a “civil
right” within the purview of Article 6 § 1 of the
Convention. That right accordingly fell within the ambit of that
Article and that Article accordingly applied to it.
- In
so far as the Government have relied on the Court’s decision in
J.K. v. Slovakia (see paragraph 37 above), the Court points
out that, in that case it examined, inter alia, the
applicability of Article 6 § 1 of the Convention ratione
materiae to proceedings concerning the applicant’s claim
for restitution of land located in Podunajské Biskupice and
Prievoz – Malé pálenisko and his claim for
compensation for the use of his land located in Podunajské
Biskupice (points 2 and 5 in “The Facts“ of that
decision). Those proceedings had been discontinued on the ground that
they concerned the same subject-matter as other sets of proceedings
pending before the same court. The Court found that those procedural
decisions did not amount to a determination of the applicant’s
“civil rights and obligations” within the meaning of
Article 6 § 1 of the Convention, which accordingly was
inapplicable ratione materiae to the discontinued proceedings.
- The
Court observes that in J.K. (cited above) no issue of access
to a court was at stake. In so far as the Government’s
objection has been substantiated, it fails to discern any direct
relevance of their argument in respect of the applicability of the
guarantees of Article 6 § 1 of the Convention to enforcement of
the applicants’ claim which in the present case was adjudicated
by a final and binding judicial decision (in this context see also
the case-law quoted in paragraph 40 above).
- The
Government’s argument made in reliance on the Court’s
decision in J.K. (cited above) cannot therefore be sustained.
- In
sum, the Government’s objection of the incompatibility ratione
materiae of the applicants’ claim with the provisions of
the Convention has to be dismissed.
- As
to the Government’s objection of non-exhaustion of domestic
remedies, made in reliance on amended section 15c(2)(a) and (g) of
the State-owned Enterprises Act, the Court observes, firstly, that
the defendant went into liquidation on 1 November 1991 (see paragraph
9 above) and that the provisions requiring its liquidator to announce
the entry into liquidation and to publish a call for creditors to
register their claims were enacted with effect from 15 November
1996 (see paragraphs 29 and 30 above). The Court also observes that
no transitory rules would appear to have been adopted by the
legislature for the application of this requirement.
- In
these circumstances, the Court considers that it is questionable
whether, when and how the applicants could have proceeded in
compliance with the amended section 15c(2)(a) and (g) of the
State-owned Enterprises Act. Moreover, it is to be noted that, after
their judgment had become final and binding, the applicants did
request that the liquidator abide by it (see paragraph 13 above).
- Nevertheless,
even if the applicants could have proceeded in compliance with those
provisions and failed to do so, the Court notes that such a course of
action would only have made them a party to the liquidation process,
which does not amount to official proceedings and carries no element
of judicial supervision. Thus, the Government’s second
objection also lacks merit and must 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
applicants complained of the way in which the
domestic courts had handled their enforcement petitions and alleged
that it had been impossible to have their adjudicated claim
enforced.
- The
Government submitted that the domestic courts had proceeded in full
compliance with the applicable rules and that they had provided the
applicants with judicial proceedings that had been fair. It had been
the applicants’ responsibility to make use of the opportunities
open to them under the applicable law, in particular the possibility
of requesting the transfer of the enforcement proceedings to a
judicial enforcement officer (see paragraphs 18, 25 and 26 above),
and they had not done so.
- In
reply, the applicants reiterated their complaint and emphasised that
the domestic courts had failed to apply the relevant rules on
admissibility of their enforcement petitions efficiently, which had
delayed the outcome of those petitions and thwarted the chances for
the actual satisfaction of their claim by any other means. The
applicants also emphasised that, although they had spent many years
in asserting their claim before the ordinary and the enforcement
courts, this had been to no avail, as the claim was still not
satisfied.
- The
Court observes that the applicants have a private-law financial
claim, allowed by a court of law in a judgment that became final and
binding on 15 November 1999 (see paragraphs 7, 11 and 12 above). This
claim is against a State-owned enterprise, which had gone into
liquidation on 1 November 1991 (see paragraph 9 above), there being
no indication of its being insolvent.
- The
Court also notes that by operation of section 15c(8) of the
State owned Enterprises Act, as in force from 1 July 1998,
enforcement proceedings against a State-owned enterprise in
liquidation are stayed by its entry into liquidation (see paragraphs
33 and 34 above).
- Moreover,
in respect of the specific circumstances of the present case, the
Court observes that, as submitted by the President of the District
Court on 22 February 2006 in reply to the applicants’
constitutional complaint (see paragraph 20 above), and as held by the
Constitutional Court in its decision of 10 May 2006 (see paragraph 21
above), section 15c(8) of the State-owned Enterprises Act
applied to the applicants’ enforcement petitions, with an
effect that amounted to an actual bar on enforcement.
- Against
this legislative background, and in view of the application of the
existing rules in the applicants’ case, the exact meaning of
the Government’s argument to the effect that the applicants
could and should have sought the transfer of their enforcement claim
to a judicial enforcement officer is not entirely clear (see
paragraph 53 above).
In
particular, there is no indication that enforcement under the
Judicial Enforcement Code would not be barred by the same legislative
provisions as enforcement under the CCP.
On
the contrary, these legislative provisions appear to apply to the
purported enforcement of the applicants’ claim under the
Judicial Enforcement Code with identical effect as to enforcement
under the CCP, especially as section 15c(8) of the State-owned
Enterprises Act refers to enforcement under the Judicial Enforcement
Code in express terms (see paragraphs 32 to 34 above), while it only
applies to enforcement under the CCP by way of implication (see
section 21 above).
- Furthermore,
the Government’s substantive argument that the applicants
should have pursued their claim by way of enforcement under the
Judicial Enforcement Code appears to run counter to their submissions
with regard to the admissibility of the application (see paragraphs
37 and 38 above), arguing that the applicants should have pursued
their claim with the defendant’s liquidator under section
15c(2)(a) and (g) of the State-owned Enterprises Act.
- On
the latter point, the Court observes that, contrary to what the
Government appear to be suggesting, the applicants did seek
compliance with their judgment from the liquidator (see paragraph 13
above). Like the other authorities contacted, however, the latter
appears to have ignored the applicants’ requests and appeals
(see paragraph 13 above).
- In
this context, while acknowledging that the liquidation proceedings
effectively constituted a ban to the enforcement of the applicants’
claim only from the moment when that claim became enforceable in 1999
(see paragraph 12 above), the Court considers it noteworthy that
since 1991 the liquidation proceedings have thus far lasted almost
twenty years and are still pending (see paragraph 9 above).
- Nevertheless,
and in any event, as the Court has already noted in paragraph 50
above, the liquidation process in itself is not conceived as official
proceedings with established procedural rules, remedies and judicial
supervision or other involvement.
- In
the absence of any argument by the Government to that effect, no
elements have been established before the Court showing that the
applicants might have asserted their adjudicated claim or any
possible auxiliary claim by any other means involving a judicial
element.
- It
follows that the applicants were simply left without any possibility
of recourse to a tribunal within the meaning of Article 6 §
1 of the Convention with a view to having their adjudicated
claim enforced.
- At
the same time, no elements have been advanced by the Government or
otherwise established by the Court to justify such a lack of
access to a court. In particular, in the specific circumstances of
the present case, the Court finds no good reasons for impossibility
for a private party to obtain enforcement against a
State owned entity, the solvency of which there appears to be no
reasons to doubt, of a private law claim adjudicated by a final
and binding judgment, be it on account of inadequate legislation or
its lax interpretation and application by the authorities involved.
- The
foregoing considerations are sufficient to enable the Court
to conclude that, in the specific circumstances of the present
case, there has been a violation of Article 6 § 1 of the
Convention.
II. OTHER ALLEGED VIOLATIONS
- The
applicants also alleged a violation of Article 1 of Protocol No. 1
and Article 13 of the Convention concerning the manner in which the
courts had dealt with their enforcement petitions, and the
impossibility to have an adjudicated claim enforced and to
obtain compensation for the unjustified use of their land, despite a
final and binding judicial order to that effect. In their
observations in reply to those by the Government on the admissibility
and merits of the present application, the applicants also relied on
Article 14 of the Convention, without providing any detail.
- In
so far as this part of the application has been substantiated, raises
any issues separate from those examined above under Article 6 §
1 of the Convention and domestic remedies have been exhausted, the
Court finds that it does not disclose any appearance of a violation
of the rights and freedoms invoked by the applicants.
It
follows that the reminder of the application is 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
applicants claimed 6,196.91 euros (EUR) and
late-payment interest in respect of pecuniary damage, this being the
amount awarded to them by the judgment of 21 October 1998 (see
paragraph 11 above). They also claimed EUR 10,000 in respect of
non-pecuniary damage.
- As
to the former claim, the Government stated that, should the
applicants have incurred any pecuniary damage, a potential
finding by the Court of a violation of the applicants’
Convention rights would provide a basis for reopening the
impugned domestic proceedings under Article 228 § 1
(d) of the CCP (see paragraph 35 above), the applicants being able
to seek compensation in such reopened proceedings. As to the
latter claim, the Government considered it to be excessive.
- The
Court observes, firstly, that, contrary to what the Government appear
to be suggesting, pursuant to Article 228 § 1 (d) of the CCP
civil proceedings can in principle only be reopened on the ground
that the European Court has found a violation of the requesting
party’s Convention rights where the civil proceedings in
question were concluded by means of a judgment (rozsudok)
(see paragraph 35 above). The applicants’ enforcement case was
decided by means of a decision (uznesenie) (see paragraphs 14
and 18 above). For this reason alone, irrespective of any possible
other reasons, the Government’s objection made in reliance on
Article 228 § 1 (d) of the CCP must be dismissed.
- In
view of all the circumstances, the Court awards the applicants
jointly EUR 10,000, plus any tax that may be
chargeable, for all heads of damage taken together.
B. Costs and expenses
- The
applicants also claimed EUR 233.01 for court
fees, EUR 99.58 for an advance towards the costs of expert evidence,
EUR 165.96 for legal fees for their constitutional complaint and EUR
198.94 for various travel and administrative expenses in connection
with the domestic case, as well as the proceedings before the Court.
- The
Government submitted that only such costs and expenses could be
reimbursed which have actually and necessarily been incurred and were
reasonable as to quantum.
- 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 (see, for example, Iatridis
v. Greece (just satisfaction) [GC],
no. 31107/96, § 54, ECHR 2000-XI).
77. In
the present case, the amount of EUR 850 has already been paid to Ms
Viskupová by way of legal aid for her legal representation
before the Court, which has been the same for her and the other
applicants (see paragraph 2 above).
In
these circumstnaces, and having regard to the documents in its
possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 250, plus any tax
that may be chargeable to the applicants, to the four applicants
jointly, to cover all remaining costs under all heads.
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 four applicants jointly, 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
10,000 (ten thousand euros), plus any tax that may be chargeable, for
all heads of damage taken together;
(ii) EUR
250 (two hundred and fifty euros), plus any tax that may be
chargeable to the applicants, 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 applicants’
claim for just satisfaction.
Done in English, and notified in writing on 11 October 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
