CICMANEC v. SLOVAKIA - 65302/11 (Judgment (Merits and Just Satisfaction) : Court (Third Section)) [2016] ECHR 580 (28 June 2016)

In the case of Čičmanec v. Slovakia,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

          Luis López Guerra, President,
          Helena Jäderblom,
          Johannes Silvis,
          Branko Lubarda,
          Pere Pastor Vilanova,
          Alena Poláčková,
          Georgios A. Serghides, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 7 June 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 65302/11) 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, Mr Ján Čičmanec (“the applicant”), on 13 October 2011.

2. The applicant was represented by Mr I. Syrový, a lawyer practising in Bratislava. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.

3. The applicant alleged, in particular, a violation of his right to a fair hearing within a reasonable time under Article 6 § 1 of the Convention (i) in that observations had not been communicated to him which had been made by the Prievidza District Court and the Trenčín Regional Court in reply to his constitutional complaint of 3 May 2010 contesting the course and outcome of the proceedings before these courts in a property dispute and (ii) in that the length of the proceedings in this matter, including their phase before the Constitutional Court, had been excessive.

4. On 2 September 2013 a part of the application was communicated to the Government and its remainder was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1957 and lives in Sebedražie.

A. Background

6. The present case concerns real property situated in the cadastral area of Sebedražie. Land in this area has been subject to land consolidation proceedings under the Land Consolidation Act (Law no. 330/1991 Coll.). The aim of such proceedings is to reorganise the ownership and use of land in the given area so as to correspond to the requirements of protection of the environment and rational agriculture.

7. On 29 December 1992 the Prievidza Land Authority issued a decision under section 15(2) of the Act approving accelerated interim arrangements in relation to the land in question, in accordance with a simplified allotment plan, attached to the decision.

8. Those interim arrangements assigned to the applicant’s father, free of charge, temporary use of land divided by and situated on both sides of a railway line. This land partly neighbours a road and is partly separated from that road by another plot belonging to the applicant.

9. The title of the applicant’s father to this land was later transferred to the applicant. The Government submitted that that transfer had occurred as a result of the applicant’s purchase of his father’s title; by contrast, the applicant submitted (without offering any details) that his link to the land stemmed directly from his grandfather’s previous ownership.

10. Under similar terms, other individuals were assigned plots situated further down the railway line that had no or only limited contact with the road in question.

11. The interim arrangements provided that those concerned were entitled to make use of the existing road network. Such arrangements were to stay in place until the completion of the land consolidation proceedings in the area. The completion of those proceedings was scheduled for 2014. However, no information has been submitted to the Court concerning the current state and outcome of those proceedings, if any.

12. The bone of contention in the present case is whether or not the existing road network comprised a three-metre-wide makeshift field track (nespevnená poľná cesta), running parallel to the railway, across the land assigned to the applicant’s father, connecting the plots assigned to the other individuals with the road passing around the applicant’s property.

It is the applicant’s contention that in point of fact no such track has ever existed in practice or on paper and that the area is covered by vegetation (in particular, fruit trees).

As would later be established by courts, although the track was not recorded on official maps or other documentation, it existed in practice until the applicant blocked it in 2000 by building a fence and erecting a gate.

13. On 13 March 2001 a court ordered - by way of an interim measure - the applicant to remove the fence and gate and to enable access to the other plots concerned.

B. Civil action

14. On 20 April 2001 a person to whom land neighbouring the applicant’s had been assigned lodged a civil action against the applicant. The exact formulation of the relief sought evolved in the course of the proceedings; the action ultimately sought to obtain an injunction ordering the applicant to (i) remove the fence, gate, vegetation and anything else obstructing passage over the property in question; (ii) re-establish the original track; and (iii) allow and not hinder the claimants’ passage by that track.

1. Proceedings on the merits

15. On the merits, the action was examined twice by both the District Court as the first-instance court and the Regional Court as the court of appeal.

16. The first judgment (of 27 August 2004) granting the action was quashed (on 4 April 2005) following an appeal by the applicant. The second judgment (of 11 February 2009) again granting the action was upheld (on 27 January 2010) following his appeal.

17. The courts had regard to witness, expert and documentary evidence examined at seven hearings before the first-instance court and to the findings of three in situ examinations conducted by the first-instance judge.

18. The courts’ reasoning may be summarised as follows. As mentioned above, it was established that the disputed track had never been officially documented, but what was ultimately decisive was that it had existed in point of fact. The latter finding was primarily based on a written representation made by the Land Authority, evidence from three witnesses, and written statements from four other persons. In so far as the applicant had argued to the contrary, relying on his own witnesses, the courts considered to be conclusive photo documentation submitted by the claimant and the in situ findings of the first-instance judge.

The courts observed that the interim arrangements relating to the area concerned, including the disputed track, constituted sui generis restrictions equivalent to easements on the ownership of the land concerned. If the ownership of any plot of land in that area were to be transferred to another person, then any attendant “quasi-easements” would encumber the new owner. The applicant should have known this when he acquired the title to the land from his father.

Accordingly, the applicant was to enable and not to obstruct passage across the land.

19. No further appeal was available. The matter became resolved by force of a final and binding judgment on 9 March 2010, after the judgment of the court of appeal had been served on the parties. Upon the expiry of the grace period accorded to the applicant for compliance with the judgment on the merits, the respective ruling became enforceable on 10 April 2010.

20. Together with the above rulings, the applicant was ordered to pay the claimant the amount that the latter had previously paid to the court as an advance on the fees of the court-appointed expert. This ruling became enforceable on 13 March 2010.

2. Proceedings on the expert’s remuneration and other costs

21. On 24 October 2008 the District Court determined the expert’s remuneration. In part, it was to be paid from the advance previously paid by the claimant (some 230 euros (EUR)); the rest (some EUR 480) was paid from the budget of the court.

22. The applicant appealed, submitting that the expert’s report had been belated and flawed by errors. It should therefore have been disregarded and the expert should be paid either no or reduced remuneration.

23. On 27 January 2010 the Regional Court dismissed the applicant’s appeal and upheld the decision of 24 October 2008.

24. On 4 February 2010 the District Court ordered the applicant to pay some EUR 475 as costs of the in situ inspections and for the remainder of the expert’s fees previously paid by the court. The applicant appealed against this order.

25. On 16 April 2010 the Regional Court dismissed the applicant’s appeal and upheld the contested order.

26. No further appeal against the ruling of 16 April 2010 was available. After that ruling was served on the parties, the costs order against the applicant became final and binding on 31 May 2010. On the expiry of the grace period accorded for compliance with the costs order, it became enforceable on 4 June 2010.

27. The decisions of 24 October 2008 and 4 February 2010 were issued with reference to the same file number of the District Court as in the proceedings on the merits.

3. Enforcement phase of the proceedings

28. The enforcement of the above rulings appears to be still pending. In the meantime, the applicant has paid EUR 87.40 in respect of the enforcement officer’s fees. Despite being ordered to remove vegetation from the track in question, he has yet to do so.

C. Constitutional proceedings

1. Complaint of 3 May 2010

29. On 3 May 2010 the applicant lodged a complaint under Article 127 of the Constitution with the Constitutional Court. The complaint was against the District Court and the Regional Court and challenged specifically their judgments and decisions on the merits of his neighbour’s action (11 February 2009 and 27 January 2010) and on the fees of the expert (24 October 2008 and 27 January 2010).

The applicant alleged, inter alia, a violation of his rights under Article 1 of Protocol No. 1 to the Convention and Article 6 § 1 of the Convention.

In that regard, he argued that there had been a restriction of his ownership rights and that that restriction had been neither lawful nor necessary, had not been in the public interest, and had been subject to no compensation.

In addition, the length of the proceedings had been excessive and they had been unfair in that the courts had disregarded his arguments, had accepted expert and other evidence which was not reliable, and had rendered arbitrary decisions.

30. As can be seen from the Constitutional Court’s decision (see the following paragraph), it had obtained observations in reply to the applicant’s complaint from the Presidents of the District Court and the Regional Court. In the Constitutional Court’s decision, those observations were reflected as follows:

The President of the District Court observed that the claimant and others involved had long been using the disputed track and that the state of affairs had been accepted by the applicant and his father until the applicant had arbitrarily barred the track in 2000, apparently guided by the mistaken belief that his title to the property concerned was absolute. The applicant’s assertions had been properly examined, the court had heard extensive evidence, and the complaint about the length of the proceedings had been belated.

The President of the Regional Court (i) recapitulated the course of the proceedings, (ii) summarised the applicant’s complaint, and (iii) submitted that no position could be taken as regards some of the applicant’s claims relating to the first-instance court, that there had been no undue delays in the proceedings before the court of appeal, and that one of the applicant’s submissions before that court could not have been taken into account because it had been belated.

31. On 14 April 2011 the Constitutional Court declared the complaint inadmissible.

It found no unfairness in the proceedings and held, in particular with reference to the reasons for the Regional Court’s decision, that the lower courts’ conclusions had been sufficiently reasoned and not arbitrary. For similar reasons, the Constitutional Court dismissed as being manifestly ill-founded the complaint about the decision on the expert’s remuneration.

As to the complaint about the length of the proceedings, the Constitutional Court held, referring to its established practice, that it had been lodged belatedly. Specifically, the complaint had been lodged after the ordinary courts’ judgments on the merits had become final.

Lastly, referring to its established practice to that effect, the Constitutional Court held that, in view of the conclusion reached under Article 6 of the Convention, the ordinary courts could not be held liable for any breach of the applicant’s rights under Article 1 of Protocol No. 1.

2. Complaint of 16 July 2010

32. On 16 July 2010 the applicant lodged a fresh constitutional complaint against the District Court and the Regional Court, challenging the costs order against him (4 February and 16 April 2010), and alleging a violation of Article 6 § 1 of the Convention on the grounds that the courts had disregarded his arguments and had decided arbitrarily.

33. On 15 April 2011 the Constitutional Court ruled the complaint inadmissible, having found no appearance of any unfairness or arbitrariness in the contested decisions and the underlying proceedings.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Constitution (Constitutional Law no. 460/1992, Coll., as amended)

34. The relevant part of Article 48 § 2 provides:

“Everyone shall have the right to have his matter ... heard without undue delay ...”

35. Article 127 reads as follows:

“1. The Constitutional Court shall decide on 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 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 such 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 the person whose rights under paragraph 1 have been violated.”

B. Constitutional Court Act (Law no. 38/1993 Coll., as amended)

36. Section 53(3) provides that a constitutional complaint can be lodged within two months of the date on which the decision in question has become final and binding or on which a measure has been notified or on which notice of some other interference has been given. As regards measures and other interferences, the above period commences when the complainant could have become aware of them.

C. Practice of the Constitutional Court

37. It has been the Constitutional Court’s established practice to entertain complaints concerning the allegedly excessive length of proceedings only where the proceedings complained of are pending before the authority liable for the alleged violation at the moment at which such complaints are lodged (see the Constitutional Court’s case-law cited in the Court’s decision in Mazurek v. Slovakia (no. 16970/05, 3 March 2009)).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

38. The applicant complained that in the civil action against him he had been denied a fair hearing within a reasonable time, as provided in Article 6 § 1 of the Convention, the relevant part of which reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ...”

A. Admissibility

1. Fairness of the proceedings

39. In so far as the applicant may be understood as wishing to complain that the proceedings were unfair because the courts had disregarded his arguments and had decided arbitrarily, the Court reiterates that, under Article 19 of the Convention, its duty is to ensure that the obligations undertaken by the Contracting Parties to the Convention are observed. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court, unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see Garćia Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I, with further references).

40. The Court observes that the ordinary courts obtained and considered complex evidence, including oral evidence from witnesses and expert evidence, and that they supported their findings with comprehensive reasoning, which the Court does not consider arbitrary or manifestly unreasonable. Moreover, there were seven hearings held before the first-instance court, three in situ inspections, and the applicant was provided with ample opportunity to state his arguments, to challenge the submissions made by the claimant, and to submit any evidence he considered relevant to the outcome. The constitutional proceedings leading to the Constitutional Court’s decision of 15 April 2011 were conducted within similar parameters.

41. To the extent that the relevant part of the complaint concerning fairness has been substantiated and falls within its competence, the Court finds that it does not disclose any appearance of a violation of the applicant’s rights under the provision invoked. It follows that this part of the application is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

42. As to the remainder of the applicant’s complaint, in particular the part concerning the proceedings before the Constitutional Court resulting in its decision of 14 April 2011, the Court notes that it 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.

2. Length of the proceedings

(a) Parties’ arguments

43. The Government referred to the Constitutional Court’s practice (as noted above - see paragraph 37), its decision of 14 April 2011 in the present case, and the Court’s case-law following Mazurek (cited above).

In particular, they argued that it was the Constitutional Court’s established practice (and that that practice was accepted by the Court) to entertain length-of-proceedings complaints only in so far as the contested proceedings were still pending at the time of the introduction of the constitutional complaint before the authority identified by the complainant as being liable for the alleged violation of the complainant’s right to a hearing within a reasonable time (or its constitutional equivalent).

The Government pointed out that the proceedings on the merits of the present case had ended on 9 March 2010 with the delivery of a final and binding judgment and that the applicant’s constitutional complaint had only been lodged on 3 May 2010. Its relevant part had accordingly rightly been rejected by the Constitutional Court as belated.

The above conclusion had not been altered by the subsequent proceedings concerning the costs of the proceedings because those proceedings constituted a new dispute, which was separate from the proceedings on the merits. Such a distinction between the two sets of proceedings was logical because it was in the interest of judicial economy and expeditiousness and legal certainty as regards the resolution of the merits of the case.

In sum, the Government objected that the applicant had failed to respect the requirement to exhaust domestic remedies under Article 35 § 1 of the Convention.

44. Other than that, the Government acknowledged that the complaint was not manifestly ill-founded.

45. The applicant disagreed and reiterated his complaint. In particular, he submitted that the question of the costs of the proceedings had in fact been closely linked to their merits because the duty to pay the costs of the proceedings had further added to the excessive burden that the courts had placed on him by their judgment on the merits. In addition, he pointed out that the court of appeal had ruled on his appeals on the merits and on the costs payable to the expert on the same day - 27 January 2010 (see paragraphs 16 and 23 above). In his view, this showed that the issues were connected and should not have been viewed as separate, as the Government had suggested.

(b) The Court’s assessment

46. The general case-law principles, as well as the existing case-law on exhaustion of domestic remedies in relation to complaints about length of proceedings in Slovakia, have been recapitulated in the Court’s judgment in the case of Ištván and Ištvánová v. Slovakia (no. 30189/07, §§ 63-75, 12 June 2012, with further references). In so far as relevant to the Government’s non-exhaustion plea, the Court has noted that:

- Since 2001 a complaint under the amended Article 127 of the Constitution has in general constituted a remedy under Article 35 § 1 of the Convention in respect of excessive length of proceedings.

- When dealing with length-of-proceedings complaints, it is the Constitutional Court’s practice to examine separately the segments of such proceedings taking place before different courts.

- This approach is different from that of the Court, which examines the overall length of such proceedings.

- The Court therefore has to satisfy itself in each individual case whether the protection of a person’s right afforded by the Constitutional Court was comparable to that which the Court can afford under the Convention.

- In cases concerning length of proceedings this requirement will only be met where the Constitutional Court’s decision is capable of covering all stages of the proceedings complained of and thus, in the same way as decisions given by the Court, of taking into account their overall length.

- It is the Constitutional Court’s practice to entertain length-of-proceedings complaints only where the proceedings complained of are pending before the authority liable for the alleged violation at the time at which such complaints are lodged.

- For the purposes of Article 35 § 1 of the Convention, applicants have to have introduced their constitutional complaints in accordance with that practice and to have formulated their constitutional complaints in a way that enables the Constitutional Court to examine the overall length of the proceedings in issue.

47. In the present case, the applicant lodged his constitutional complaint of 3 May 2010 in respect of both the District Court and the Regional Court, alleging, inter alia, that, in the proceedings before these courts, there had been a violation of his right to a hearing within a reasonable time. Unlike in the case of Mazurek (cited above), in the present case the proceedings before the ordinary courts were still pending at the time of the introduction of the applicant’s constitutional complaint (specifically, at the stage concerning the costs of the proceedings).

48. The Government seek to distinguish the proceedings on the merits from those on the costs, and thereby to establish that the applicant’s position was the same as that of the applicant in the case of Mazurek.

49. In that respect, the Court observes firstly that no such distinction appears to stem from any statutory rules. In addition, it notes that it has neither been argued by the Government and nor has it been established by any other means that it is the established practice of the Constitutional Court make such a distinction.

50. In addition, the Court reiterates that Article 6 § 1 of the Convention requires that all stages of legal proceedings concerning the determination of civil rights and obligations, not excluding stages subsequent to a judgment on the merits, be resolved within a reasonable time, and that this also includes in principle the stage of proceedings concerning costs (see Robins v. the United Kingdom no. 22410/93, §§ 28-29, ECHR 1997-V and Macková v. Slovakia, no. 51543/99/98, § 55, 29 March 2005).

51. The Court also notes that at no level of jurisdiction has it been argued that the applicant formulated his constitutional complaint in a way preventing the Constitutional Court from examining the phase of the proceedings concerning costs. On the contrary, he identified the contested proceedings both as regards the District Court and the Regional Court and made a specific reference to the respective file number at the District Court which remained the same at the stage of the proceedings concerning costs.

52. As to the substantive link between the merits of the case and the costs of the proceedings, the Court points out that these two issues were being determined in parallel in the framework of the same proceedings until the Regional Court’s judgment on the merits and decision of 27 January 2010 on the expert’s costs (see paragraphs 16, 21 and 23 above) and that the subsequent costs order against the applicant was a follow-up to and a logical consequence of the previous judgment on the merits and the decision on the expert’s costs.

53. In addition, the Court observes that the timeliness of the applicant’s constitutional complaint of 3 May 2010 was challenged by the President of the District Court in her observations in reply to this complaint. However, as those observations were not transmitted to the applicant, he did not have an opportunity to take a stance.

54. In these circumstances, the Court considers that the Constitutional Court’s approach to the applicant’s complaint relating to the excessive length of the proceedings was formalistic and in its content incompatible with the Court’s approach to examining the overall length of proceedings. The protection afforded to him by the Constitutional Court thus cannot be considered as effective (see Ištván and Ištvánová, cited above, § 75), and the Government’s objection must be dismissed (see also Frigo v. Slovakia [Committee], no. 16111/11, §§ 17-21, 8 October 2013).

55. The Court notes that the length-of-proceedings complaint 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

1. Fairness of the proceedings

56. The applicant complained that he had been denied an opportunity to comment on the observations of the Presidents of the District Court and the Regional Court in reply to his constitutional complaint of 3 May 2010.

57. The Government pointed out that the contested proceedings before the Constitutional Court had only been at their preliminary phase, when the admissibility of the complaint had been under consideration. In their view, this distinguished the present case from that of Hudáková and Others v. Slovakia (no. 23083/05, 27 April 2010), in which the remedy in issue had been dealt with on its merits.

The Government contended that, at that stage of proceedings before the Constitutional Court, it always had at its disposal the respective case files and complainants would have had unrestricted access to those case files throughout the proceedings challenged before the Constitutional Court.

The Government further argued that, in their observations, the Presidents of the respective courts had only referred to the contents of the existing case files and had submitted no new arguments. Accordingly, apart from summarising their submissions, the Constitutional Court had made no reference at all to these submissions in its reasoning. Accordingly, the Government argued that the respective courts’ observations in reply to the applicant’s complaint in the present case had not constituted reasoned opinions on the merits of his complaint, unlike in the cases of Milatová and Others v. the Czech Republic (no. 61811/00, § 65, ECHR 2005-V) and Juričić v. Croatia (no. 58222/09, § 74, 26 July 2011). Therefore, relying on the Court’s judgments in the cases of Verdú Verdú v. Spain (no. 43432/02, 15 February 2007), Sale v. France (no. 39765/04, 21 March 2006), and Stepinska v. France (no. 1814/02, 15 June 2004), the Government had concluded that the applicant’s complaint was unfounded.

58. In reply, the applicant disagreed and reiterated his complaint, submitting in particular that the observations of the District Court and the Regional Court could have had an impact on the contested decision of the Constitutional Court.

59. The Court reiterates that the concept of a fair hearing under Article 6 § 1 of the Convention implies the right to adversarial proceedings, according to which the parties must have the opportunity not only to be made aware of any evidence needed for their claims to succeed, but also to have knowledge of, and comment on, all evidence adduced or observations filed, with a view to influencing the court’s decision. However, the right to adversarial proceedings is not absolute and its scope may vary depending on the specific features of the case in question. The concrete effect of the observations in question on the judgment of the domestic court concerned is of little importance. It is for the parties to the case to judge whether or not a document calls for their comments. What is particularly at stake here is litigants’ confidence in the workings of justice, which is based on the knowledge that they have had the opportunity to express their views on every document in the file (for a summary of these principles see, for example, Ringier Axel Springer Slovakia, a. s. v. Slovakia (dec.), no. 35090/07, §§ 85 and 86, 4 October 2011, with further references).

60. That said, the Court has found in certain exceptional cases in the past that the non-communication of written observations or documents in the proceedings and the impossibility for the applicant to comment on them did not constitute a violation of the right to a fair hearing. It did so, for example, when granting to an applicant the rights and opportunities of which the applicant had actually been deprived would have had no effect on the outcome of the proceedings, as the legal approach adopted was not open to discussion (see, for example, Stepinska, cited above, § 18; Sale, cited above, §§ 18 to 19; and Verdú Verdú, cited above, §§ 26 to 28). Similarly, the Court found no issue under Article 6 § 1 of the Convention in a case where the non-communicated elements did not constitute a reasoned opinion actually having or at least being potentially capable of having any relevant effect on the outcome of the proceedings in question (see Ringier Axel Springer Slovakia, a. s., cited above, § 90; and, conversely, Milatová and Others (cited above), § 65).

61. Turning to the facts of the present case, the Court notes that the applicant challenged by means of a complaint before the Constitutional Court the judgments and decisions of the District Court and the Regional Court on the merits of his case and on the fees payable to the expert. In the proceedings on his complaint, the District Court and the Regional Court had the standing of defendants and, in this capacity, they submitted observations in reply, of which the applicant first learned from the Constitutional Court’s decision rejecting his complaint.

62. As those observations have not been made available to the Court, in the assessment of their content it must rely on the summary of their contents given in the Constitutional Court’s decision. From that summary (see paragraph 30 above), it may be understood that the President of the District Court stated her view of the position of the applicant’s case before the judge of her court and argued that that judge’s assessment of the case had been flawless, while the President of the Regional Court submitted, inter alia, that one of the applicant’s submissions at the appellate stage could not have been taken into account because it had been belated.

63. The submissions in question were made by the defendant parties to the applicant’s complaint and they were clearly aimed at influencing the Constitutional Court’s assessment (see BENet Praha, spol. s r.o. v. the Czech Republic, no. 33908/04, § 142, 24 February 2011). In addition, the Court fails to understand how these submissions could be interpreted other than as constituting, at least in part, a reasoned opinion on the merits of the applicant’s complaint and containing an argument not having been advanced previously. It is true that the Constitutional Court did not refer to these submissions in its reasoning, but it is equally true that it did not say that it had not taken them into account (see, a contrario, Čavajda v. the Czech Republic (dec.), no. 17696/07, 29 March 2011, with further references).

64. At the same time, the Court notes that according to the applicant, an opportunity to comment on the observations in reply to his complaint was not per se deprived of any potential effect, as was the case in the other cases relied on by the Government, where the legal framework and the specific facts did not give grounds for a material discussion in relation to the merits (see, for example, Salé v. France, cited above, § 17). In that respect, the Court notes that, formally speaking, the Constitutional Court only examined the applicant’s complaint with reference to the criteria for its admissibility. However, it observes that in practice the Constitutional Court’s examination of the applicant’s complaint was not limited to its assessment of compliance with formal admissibility requirements but, to a large extent, also included an assessment of the substance of the complaint. The Court therefore finds no merit in the Government’s argument that the examination of the applicant’s case had been only of a preliminary nature (see, conversely, Ringier Axel Springer Slovakia, a. s., cited above, § 89).

65. The foregoing considerations are sufficient to enable the Court to conclude that the failure to forward to the applicant a copy of the written observations by the District Court and the Regional Court in response to the applicant’s constitutional complaint of 3 May 2010 denied him the right to a fair hearing.

There has accordingly been a violation of Article 6 § 1 of the Convention on that account.

2. Length of the proceedings

66. The applicant complained that the length of the proceedings concerning the track over his land had been excessive. In his initial submission of 13 October 2011 he referred to the impugned proceedings as having lasted ten years.

67. Apart from the above submissions (see in particular paragraph 44), the Government have made no separate submission in reply.

68. In his subsequent observations, the applicant emphasised that his application concerned all stages of the proceedings before the ordinary courts, as well as those before the Constitutional Court.

69. The Court considers that there is no doubt that the principal object of the applicant’s length-of-proceedings complaint is the proceedings initiated by his neighbour’s action of 20 April 2001.

It notes that those proceedings were immediately followed by two sets of constitutional proceedings, which ended with the Constitutional Court’s decision of 15 April 2011, an overall process that lasted nearly ten years, as noted in the applicant’s initial submission.

70. In these circumstances, the Court accepts that the applicant’s complaint extends to the proceedings before the Constitutional Court. At the same time, it notes that the applicability of the reasonable-time guarantee under Article 6 § 1 of the Convention to the proceedings before the Constitutional Court in the present case has not been questioned (see, for example, Oršuš and Others v. Croatia [GC], no. 15766/03, §§ 108 and 109, ECHR 2010; Süßmann v. Germany, 16 September 1996, § 41, Reports of Judgments and Decisions 1996-IV; and Deumeland v. Germany, 29 May 1986, § 77, Series A no. 100). Moreover, the Court observes that no separate complaint has been made in relation to the enforcement proceedings before it or at the domestic level.

71. The period under consideration was accordingly nine years, eleven months and twenty-seven days, covering proceedings before two levels of ordinary jurisdiction and the Constitutional Court, before which two complaints by the applicant were lodged.

72. The Court reiterates that the reasonableness of this period 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).

73. 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).

74. Having examined all the material submitted to it, the Court notes 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 on that account.

II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1

75. The applicant complained that he had been restricted in the enjoyment of his possessions without any relevant legal ground and without any compensation, and that such restriction was not in the public interest. He relied on Article 1 of Protocol No. 1, which provides as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

76. The Government submitted that the restriction on the applicant’s use of the land in question had the form of a “quasi-easement”, that this easement had been established (in 1992) more than six months before the present application was lodged (in 2011) and that, in any event, the applicant had failed to exhaust the available remedies in that respect.

Moreover, and in any event, they contended that the easement in question clearly had a legal basis, that is to say in the Land Consolidation Act and in the Land Authority’s decision of 29 December 1992. In their view, there could not be any doubt that the land consolidation was in the public interest, in particular in settling competing rights to real property so as to enable its best possible use for the purposes of agriculture. Lastly, the Government submitted that when the applicant had acquired his title to the property the contested restrictions had already been imposed and that the scope of those restrictions was not disproportionate in the circumstances.

77. In reply, the applicant disagreed and reiterated his complaints, emphasising that the accelerated interim arrangements in question made no provision in relation to the contested track and that the impugned restrictions on his possessions fell short of all the requirements for being compatible with his rights under Article 1 of Protocol No. 1.

78. The Court notes at the outset that, to the extent the restrictions on the applicant’s property rights of which he complains in the present application were established by the decision of Land Authority of 29 December 1992, the provisions of Article 35 § 1 of the Convention prevent the Court from examining them under the rules of exhaustion of domestic remedies and six months.

79. As to the events subsequent to that decision, the Court notes that there is disagreement between the parties as to how exactly the applicant acquired title to the land in question (see paragraph 9 above). However, it is clear that it was after the decision of 29 December 1992 and consequently at a time when any restrictions stemming from that decision were already in place. In addition, irrespective of the specific means by which the applicant acquired title to the land, there is no indication that he could have obtained it in ignorance of the restrictions placed on the land or against his free will (see Łącz v. Poland (dec.), no. 22665/02, 23 June 2009; Šidlovská v. Slovakia (dec.), no. 73020/10, § 43, 5 November 2013; and Popivčák v. Slovakia (dec.), no. 8095/11, § 55, 5 November 2013).

80. In so far as the proceedings specifically contested by the applicant are concerned, the Court notes that their essence was a confirmation that the restrictions established under the decision of 29 December 1992 extended to the applicant’s land and their implementation. The Court is therefore of the view that they did not constitute a separate instance of an interference with the applicant’s property rights.

81. Thus, in so far as the applicant’s complaint under Article 1 of Protocol No. 1 has been substantiated and falls within its competence, the Court has found no indication of any appearance of a violation of the applicant’s rights protected under that provision.

It follows that the remainder 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

82. 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

83. The applicant claimed 10,039.34 euros (EUR) in respect of pecuniary damage and EUR 20,000 in respect of non-pecuniary damage. The former amount included some EUR 710 and EUR 90 that the applicant had been ordered to pay in respect of the costs of the expert appointed at the domestic level and in respect of the costs of the enforcement officer (see paragraphs 21, 24, 25 and 28 above). The remainder of the amount claimed consisted of the profit that the applicant estimated that he would lose as a result of the ordered removal of the fruit trees on the contested passage. He calculated that amount as the loss of yield from those trees over twenty-one years, the period of time that he estimated that it would take for any newly planted threes to reach the yield of the trees to be removed.

84. The Government argued that, in so far as the applicant’s claim in respect of pecuniary damage related to the fees of the expert and the enforcement officer, it fell under the heading of costs and expenses rather than pecuniary damage. In respect of the remainder of the amount claimed, the Government submitted that the claim was hypothetical because the applicant had not removed the trees in question yet. Moreover, they contended that the trees should not have been planted on the track in the first place. As for the claim in respect of non-pecuniary damage, the Government submitted that it was excessive.

85. The Court considers that the claim for compensation in respect of the costs paid by the applicant under the contested judgment in principle falls to be examined under the heading of pecuniary damage (see, for example, Ringier Axel Springer Slovakia, a.s. v. Slovakia (no. 2), no. 21666/09, § 61, 7 January 2014, with a further reference). At the same time, the Court notes that in the present case an award of just satisfaction can only be based on the fact that the applicant did not have the benefit of the rights under Article 6 § 1 of the Convention to a hearing within a reasonable time before the ordinary courts and the Constitutional Court or to a fair hearing before the latter court. In particular, it considers that it cannot speculate as to the outcome of the constitutional proceedings had the position been otherwise. It accordingly finds that any causal link between the violations found and the pecuniary damage alleged has not been established and that the applicant’s claim in that respect has to be dismissed. In addition, the Court considers that the finding of a violation of the applicant’s right to a fair hearing constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by him in that respect.

86. As to the violation of the applicant’s right to a hearing within a reasonable time, making its assessment on an equitable basis, and having regard to the amount of his claim, the Court awards the applicant EUR 2,000, plus any tax that may be chargeable, in respect of non-pecuniary damage.

B. Costs and expenses

87. The applicant also claimed EUR 821.23 for court, legal and translation fees and for postal and administrative expenses incurred both at the domestic level and before the Court.

88. The Government submitted that the matter should be resolved in accordance with the Court’s case-law.

89. 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, regard being had to the violation found, the documents in its possession, and the above criteria, the Court considers it reasonable to award the sum of EUR 500, plus any tax that may be chargeable to the applicant, for the proceedings before the Constitutional Court and those before the Court.

C. Default interest

90. 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. Declares the complaints of the lack of adversarial proceedings before the Constitutional Court and of the length of the proceedings in the applicant’s property dispute admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of the applicant’s right to a fair hearing under Article 6 § 1 of the Convention;

3. Holds that there has been a violation of the applicant’s right to a hearing within a reasonable time under Article 6 § 1 of the Convention;

4. Holds that the finding of a violation of the applicant’s right to a fair hearing under Article 6 § 1 of the Convention constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by him in that respect;

5. 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 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage sustained by the applicant on account of the length of the proceedings in his property dispute;

(ii) EUR 500 (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;

6. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 28 June 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Luis López Guerra
Registrar President

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> CICMANEC v. SLOVAKIA - 65302/11 (Judgment (Merits and Just Satisfaction) : Court (Third Section)) [2016] ECHR 580 (28 June 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/580.html Cite as: [2016] ECHR 580