THIRD SECTION
CASE OF
VOJTĚCHOVÁ v. SLOVAKIA
(Application no.
59102/08)
JUDGMENT
STRASBOURG
25 September 2012
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 Vojtěchová v. Slovakia,
The European Court of Human Rights (Third Section), sitting as
a Chamber composed of:
JosepCasadevall, President,
EgbertMyjer,
AlvinaGyulumyan,
JánŠikuta,
LuisLópez Guerra,
NonaTsotsoria,
KristinaPardalos, judges,
andSantiago Quesada, Section Registrar,
Having deliberated in private on 28 August 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
59102/08) against the SlovakRepublic 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, Ms Alena Vojtěchová (“the
applicant”), on 19 November 2008.
The applicant was represented by Ms I. Rajtáková,
a lawyer practising in Košice. The Government of the SlovakRepublic(“the
Government”) were represented by their Agent, Ms M. Pirošíková.
The applicant alleged that proceedings concerning
the termination of a tenancy agreement were unfair contrary to Article 6 § 1 of
the Convention.
On 14 March 2011the 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 1964 and lives in Košice.
In 2000 a cooperative sued the applicant’s mother
for termination of a tenancy agreement in respect of a flat in which she
lived with the applicant and the latter’s daughter. It was argued that the
tenant had failed to pay the rent and service charges. In her reply the
defendant explained that she was an immobile invalid, and that her daughter had
taken care of her for twenty years and was unemployed. They were in financial
need and unable to pay the rent.
The defendant authorised the applicant to
represent her at hearings before the Košice I District
Court on 15 January 2002 and 17 May 2002. Subsequently, the District Court
examined the case in the presence of the applicant who attended hearings but
had no authority to represent her mother.
On 9 September 2004 the District Court allowed
the action with reference to Article 711 § 1(d) of the Civil Code. It ordered
the applicant’s mother and the other persons living with her to move out of the
flat within fifteen days after they have been provided with substitute
accommodation. The court held it established that the tenant had failed to pay
the rent for a period exceeding three months.
The applicant’s mother appealed on 8 November
2004. She described her and her daughter’s difficult situation. At the hearing
the applicant submitted that a substantial part of the debt had been paid in
the meantime.
On 26 April 2005 the Košice Regional
Court upheld the first‑instance judgment. With reference to the reasons
for that judgment the Regional Court held that the District Court had
established the relevant facts and had applied the relevant law correctly.
On 24 June 2005 the applicant’s mother filed an
appeal on points of law. She subsequently appointed a lawyer to represent her
in the proceedings.
In the appeal on points of law it was argued
that the applicant’s mother had been prevented from protecting her rights at
first-instance as the court had proceeded with the case at several hearings
without having duly summoned her. The Regional Court had not redressed the
shortcomings in the first-instance proceedings.The applicant’s mother relied on
Article 30 of the Code of Civil Procedure and maintained that the District
Court had not complied with its obligation to inform her of the possibility of
having a lawyer appointed to represent her in the proceedings. She also
argued that the courts had made their decision in disregard of Article 712b of
the Civil Code.
On 24 February 2006 the applicant’s mother died.
The applicant joined the proceedings as a defendant on 13 August 2007.
On 25 October 2007 the Supreme Court dismissed
the appeal on points of law. It noted that the applicant had been authorised to
represent her mother at two hearings, that she had attended further hearings
and could have thus informed hermother, who had been the defendant, of the date
when they took place. Furthermore, the first-instance court had sent summonses
to the applicant’s mother, for example, for the hearing scheduled for 9 March
2004. Similarly, she had been summoned to a hearing before the court of
appeal held on 26 April 2005 but had neither appeared nor excused her
absence. The Supreme Court concluded that the lower courts had not prevented
the applicant’s mother from exercising her rights.
On 19 February 2008 the applicant lodged a
constitutional complaint in which she alleged a breach of Article 6 § 1 of the
Convention in the above-mentioned proceedings leading to the Supreme Court’s
decision of 25 October 2007. She argued, among other things, that her mother
had not been duly summoned to hearings before the District Court and that both
that court and the court of appeal had decided arbitrarily in that they had
failed to examine the facts of the case in the light of Article 712b in conjunction
with Article 879c of the Civil Code.
On 6 May 2008 the Constitutional Court declared
the complaint manifestly ill-founded. It found that the Supreme Court’s
decision was neither arbitrary nor otherwise contrary to Article 6 § 1 of the
Convention.
In February 2009 the cooperative which owns the
flat initiated proceedings before the Košice I District
Court with a view to having the applicant removed from the flat. The proceedings
are pending.
II. RELEVANT DOMESTIC LAW
A. The Civil Code
Article 711 § 1(d) entitles landlords, subject
to approval by a court, to terminate tenancy agreements where tenants fail to
pay the rent and service charges for more than three months.
Article 712b provides that a court should not
allow the termination of a tenancy agreement for reasons set out in Article
711 § 1 (d) where the tenant and members of his or her household are in
material need and where the situation cannot be imputed to them.
That provision was repealed with effect from 1
September 2001. However, under Article 879c § 1, the courts were bound to
continue applying that and related provisions in proceedings concerning the
termination of tenancy agreements which had started before that date.
B. The Code of Civil Procedure
Article 30 entitles courts to appoint a lawyer
at the request of a party who qualifies for exemption from the obligation to
pay court fees. With effect from 1 September 2003, Article 30 was amended in
that it obliges courts to advise a party to proceedings of that possibility.
Article 212 § 1 provides that appeal courts are
bound by the scope and reasons for an appeal. Paragraph 3 of Article 212
provides that appeal courts should consider shortcomings in proceedings at
first instance where they entail an erroneous decision on the case.
Pursuant to Article 228 § 1 (d), a party is
entitled to challenge a final judgment by means of a request for a reopening of
the proceedings where the European Court of Human Rights concluded in a
judgment that a court’s decision or the proceedings preceding it were in breach
of the fundamental human rights or freedoms of the party, unless the just
satisfaction granted eliminated the serious consequences of thebreach.
THE LAW
I. THE GOVERNMENT’S REQUEST TO STRIKE THE
APPLICATION OUT OF THE LIST UNDER ARTICLE 37 OF THE CONVENTION
On 28 October 2011 the Government submitted a
unilateral declaration in which they admitted a breach of the applicant’s
rights under Article 6 § 1 of the Convention and offered to pay her a sum to
cover any pecuniary and non-pecuniary damage together with any costs and
expenses incurred by the applicant. The Government suggested that the Court
strike the application out of its list on that basis pursuant to Article 37 § 1
of the Convention.
The applicant disagreed with that proposal. She
wished to have the merits of her complaint determined with a view to obtaining
appropriate redress. She invoked Article 228 § 1 (d) of the Code of Civil
Procedure, under which she would be allowed to request a reopening of the
proceedings in the event that the Court found a breach of Article 6 § 1.
The Court has held thatit may be appropriate
under certain circumstances to strike out an application under Article 37 § 1
(c) of the Convention on the basis of a unilateral declaration by the
respondent Government even if the applicant wishes the examination of the case
to be continued. It will depend on the particular circumstances whether the
unilateral declaration offers a sufficient basis for finding that respect for
human rights as defined in the Convention and its Protocols does not require
the Court to continue its examination of the case (see Tahsin Acar v. Turkey
(preliminary issue) [GC], no. 26307/95, §§ 74-77, ECHR 2003-VI, and Melnic
v. Moldova, no. 6923/03, § 22, 14 November 2006).
The Court reiterates that in cases where a
violation of Article 6 is found, the applicant should, as far as possible, be
put in the position that he or she would have been in had the requirements of
that provision not been disregarded. The most appropriate form of redress
would, in principle, be a retrial or the reopening of the proceedings, if
requested (see Kounov v. Bulgaria,
no. 24379/02, §§ 58-59, 23 May 2006 with further references). The Court
notes, in this connection, that Article 228 § 1 (d) of the Code of Civil
Procedure provides for such a possibility where it concludes that there has
been a breach of the Convention in domestic proceedings.
For that reason,and considering what is at stake
for the applicant in the proceedings complained of and also taking into account
the terms of the unilateral declaration submitted by Government,the Court,
without prejudging its decision on the admissibility and merits of the case,
accepts the applicant’s argument and holds that respect for human rights as
defined in the Convention and its Protocols requires the continued examination
of the case. The Government’s request for the application to be struck out of the
list of cases under Article 37 of the Convention must therefore be rejected.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The applicant complained that her or her legal
predecessor’s right to a fair hearing had been breached in the proceedings
concerning the termination of the tenancy agreement. She alleged a breach of 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 fair ... hearing ... by [a] ... tribunal ...”
A. Admissibility
The applicant complained, in particular, that
(i) the District Court had proceeded with the case in the absence of her mother
and without having duly summoned her, (ii) in the course of the first-instance
proceedings her mother had not been advised of the possibility of having
a lawyer appointed to represent her as required by Article 30 of the Code
of Civil Procedure, and (iii) the courts had not considered the argument about
her and her mother’s difficult financial situation in the light of Article 712b
of the Civil Code when approving the termination of the tenancy agreement.
The Government, with reference to the terms of
their unilateral declaration, informed the Court that they did not consider it
necessary to submit written observations dealing with the applicant’s
complaints under Article 6 of the Convention.
The Court notes that the proceedings complained
of concerned an action against the applicant’s mother as a party to the tenancy
agreement in issue. Following her mother’s death on 24 February 2006, the
applicant, who lived in the apartment together with her daughter, continued the
proceedings. Both the Supreme Court and the Constitutional Court accepted her
standing to do so. The applicant can therefore claim to be a victim, within the
meaning of Article 34 of the Convention, of a breach of Article 6 § 1 in the
proceedings complained of.
The Court notes that the applicationis 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 Court reiterates that it is not its task to
take the place of the domestic courts, which are in the best position to assess
the evidence before them, establish facts and interpret domestic law. The Court
will not, in principle, intervene, unless the decisions reached by the domestic
courts appear arbitrary or manifestly unreasonable and provided that the
proceedings as a whole were fair as required by Article 6 § 1 (seeDombo
Beheer B.V. v. the Netherlands, 27 October 1993, § 31, Series A no. 274;
Khan v. the United Kingdom, no. 35394/97, § 34, ECHR 2000-V; Van Kück
v. Germany, no. 35968/97, §§ 46-47, ECHR 2003-VII; and Khamidov v. Russia,
no. 72118/01, § 170, ECHR 2007-XII (extracts)).
According to the Court’s established case-law
reflecting a principle linked to the proper administration of justice,
judgments of courts and tribunals should adequately state the reasons on which
they are based. The extent to which this duty to give reasons applies may vary
according to the nature of the decision and must be determined in the light of
the circumstances of the case (see García Ruiz v. Spain [GC], no.
30544/96, § 26, ECHR 1999-I, with further references). The notion of a
fair procedure requires that a national court did in fact address the essential
issues which were submitted to its jurisdiction (see Suominen v. Finland,no.
37801/97, § 34, 1 July 2003; Juez Albizu v. Spain,
no. 25242/06, §§ 21-25, 10 November 2009; and, mutatis
mutandis, Helle v. Finland, 19 December 1997, § 60, Reports
of Judgments and Decisions 1997-VIII).
In the present case, Article 712b read in
conjunction with Article 879c § 1 of the Civil Code excluded the termination of
tenancy for the tenant’s failure to pay the rent where the tenant and members
of his or her household were in material need and where that situation could
not be imputed to them.
In their submissions to national courts the
applicant and her mother stated that they were in financial need preventing
them from paying the rent (see paragraphs 6 and 9 above). They thus put forward
an argument which was of particular relevance for the determination of the
point in issue, namely, whether the statutory conditions for terminating the
tenancy agreement had been met.
In that context the Court does not attach
particular importance to the fact that the applicant’s mother failed to
expressly invoke the relevant provisions of the Civil Code in the
first-instance and appeal proceedings. It was primarily for the courts
involved to assess the parties’ arguments on the position in the case from the
perspective of the applicable law.
The District Court’s judgment with reasons does
not indicate that that court considered the argument concerning the material
situation of the applicant and her mother, and that it assessed the position
under Article 712b read in conjunction with Article 879c § 1 of the Civil Code.
The court of appeal upheld the first-instance judgment while indicating in a
summary manner that the District Court had established the relevant facts and
had applied the relevant law correctly.There is nothing in the text of the
appeal judgment to suggest that the Regional Court examined the above-mentioned
argument of the defendant. Subsequently, the Supreme Court found no relevant
ground justifying the quashing of the lower courts’ judgments, and the
Constitutional Court found no breach of the applicant’s or her predecessor’s
right to a fair hearing in that context.
It is not the Court’s task to decide whether the
argument about the material situation of the applicant and her mother was
well-founded, as it falls to the national courts to determine questions of that
nature. Nevertheless, the Court notes that that argument was clearly relevant
because had the courts found it to be well-founded, they would have been bound
by the relevant law to dismiss the plaintiff’s claim for termination of the
tenancy agreement.
Therefore, the Court finds that courts which
dealt with the merits of the case were obliged to give a reasoned answer to the
argument concerning the financial situation of the applicant and her mother,
and explain why they considered that the provisions of Article 712b did not
prevent the tenancy agreement from being terminated. Their finding in that
respect was decisive for the right of the applicant’s mother and the applicant
to continue living in the flat.
Similar failures to give sufficient reasons
resulted in findings of violations of Article 6 of the Convention in, for
example, Hiro Balani v. Spain, 9 December 1994, §§ 27 and 28,
Series A no. 303‑B; Suominen v. Finland,cited above, §§
35-38; and Salov v. Ukraine, no. 65518/01, § 92, ECHR 2005‑VIII
(extracts)).
The Court finds no reason to reach a different
conclusion in the present case. There has therefore been a violation of Article
6 § 1 of the Convention on account of the domestic courts’ failure to give
sufficient reasons for their decision in the light of the arguments before them
and the law applicable at the relevant time.
In view of the above finding, the Court does not
consider it necessary to examine the remainder of the applicant’s complaints regarding
the fairness of the proceedings.
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 10,000 euros (EUR) in
respect of non‑pecuniary damage.
The Government considered the claim excessive.
TheCourt notes that, following its above finding
under Article 6 § 1, the domestic law entitles the applicant to challenge the
conclusions of domestic courts by a request for a reopening of the proceedings.
That possibility constitutes the most appropriate redress in the circumstances
of the case (see also paragraph 27 above).
Having regard to the above, the Courtawards the
applicant EUR 3,000 in respect of non-pecuniary damage.
B. Costs and expenses
The applicant also claimed EUR 331.81for the
costs and expenses incurred before the Constitutional Court and EUR 1,082.90
forthose incurred before the Court.
The Government asked the Court to consider the
claim in accordance with its practice.
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. In the present case, regardbeing had to the documents
in its possession and the above criteria, the Court considers it reasonable to
award the sum of EUR 1,400 covering costs under all heads.
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 UNANIMOUSLY
1. Rejects the Government’s request to strike
the application out of the list;
2. Declares the application admissible;
3. Holds that there has been a violation of
Article 6 § 1 of the Convention;
4. Holds
(a) that the respondent State is to pay the
applicant, within three monthsfrom the date on which the judgment becomes final
in accordance with Article 44 § 2 of the Convention, the
following amounts:
(i) EUR 3,000 (three thousand euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,400 (one thousand four 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;
5. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 25 September
2012, pursuant to Rule77§§2 and3 of the Rules of Court.
Santiago Quesada Josep
Casadevall Registrar President
