THIRD SECTION
 
 
 
 
 
CASE OF ENGELHARDT v. SLOVAKIA
 
(Application no. 12085/16)
 
 
 
 
 
 
 
 
 
 
 
JUDGMENT
 
 
 
STRASBOURG
 
31 August 2018
 
 
FINAL
 
04/02/2019
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Engelhardt v. Slovakia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
 Helena Jäderblom, President,
 Branko Lubarda,
 Helen Keller,
 Pere Pastor Vilanova,
 Alena Poláčková,
 Georgios A. Serghides,
 María Elósegui, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 12 June 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 12085/16) 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 Czech national, Mr Július Engelhardt (“the applicant”), on 26 February 2016. 2. The applicant was represented by Ms A. Orthová, 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, that his restitution claim had not been decided upon within a reasonable time and that he had had no effective remedy at his disposal in that respect, in violation of his rights under Article 6 § 1 and Article 13 of the Convention. 4. On 17 May 2016 the above complaints were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. At the same time, the Government of the Czech Republic were invited to intervene as a third party (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), in response to which they submitted that they saw no particular reasons for so doing. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1969 and lives in Bílovice nad Svitavou (the Czech Republic). A. Restitution proceedings
6. On 30 December 1992 the applicant’s legal predecessor and two others applied to the Bratislava Land Office for the restitution of some plots of land under the Land Ownership Act of 1991. The date on which the applicant subsequently became a party to the proceedings is not specified. 7. On 23 June 1997 the Land Office issued a decision approving an agreement whereby the proceedings would end in relation to part of the property but continue in relation to the remainder. 8. By a decision of the Land Office of 17 May 1999, the proceedings in respect of another part of the property ended. However, on 23 May 2003 the relevant part of the proceedings was reopened. 9. On 12 July 2013 the Land Office stayed the restitution proceedings on the grounds that the parties had failed to furnish it with their consent to process, in the course of the proceedings, their personal data. 10. On 11 September 2015 the Land Office dismissed part of what was left of the applicant’s claim. 11. On 19 October 2015 the Land Office stayed the examination of the remainder of the claim, inviting a number of institutions to submit relevant documentation, which they did by the end of 2015. 12. The remainder of the applicant’s claim is still pending. B. Attempts to have the restitution proceedings accelerated
13. Following repeated requests for acceleration of the proceedings and complaints, on 18 June 2011 the Bratislava Regional Land Office acknowledged that there had been unjustified delays in the proceedings before the District Land Office. 14. On 20 December 2011 the applicant brought an action in the Bratislava Regional Court for acceleration of the proceedings under Article 250t § 1 of the Code of Civil Procedure (“the CCP”). 15. On 19 April 2012 the Regional Court dismissed the action on the grounds that the Land Office was short of staff and overburdened with complex and time-consuming restitution claims. It also noted that the Land Office had maintained active correspondence with the applicant and had therefore not caused any undue delays. 16. The decision of 19 April 2012 was quashed by the Constitutional Court following the applicant’s constitutional complaint (see paragraph 22 below). This led to re-examination of the case by the Regional Court, which decided on 11 April 2013 to allow the action and to order the Land Office to decide on the applicant’s claim within sixty days. 17. On 12 November 2013, in response to a complaint lodged by the applicant, the Bratislava II District Office of the Public Prosecution Service (“the PPS”) informed him that the PPS had reprimanded the Land Office for unjustified delays in the restitution proceedings. 18. On 21 August 2014 the applicant lodged a fresh action with the Regional Court under Article 250t § 1 of the CCP, arguing that the Land Office had failed to abide by the order of 11 April 2013. 19. On 27 May 2015 the Regional Court allowed the action, issuing a fresh order to the Land Office to decide on the matter within three months. At the same time, it fined it 1,000 euros (EUR) payable to the account of the Regional Court. C. Constitutional proceedings
20. On 4 July 2012 the applicant lodged two constitutional complaints. 21. The first complaint was directed against the Land Office, in particular at the length of the proceedings on his restitution claim before it. On 23 August 2012 the Constitutional Court rejected that complaint for lack of jurisdiction to examine it. The Constitutional Court noted that under Article 250t § 1 of the CCP examination of delays in proceedings before administrative authorities fell within the jurisdiction of administrative tribunals, which excluded the jurisdiction of the Constitutional Court. Accordingly, as the administrative proceedings were still pending, the applicant should have lodged a fresh complaint about the alleged inactivity of the Land Office with the Regional Court. Even though the applicant had already been unsuccessful in using such a remedy, the Regional Court continued to have jurisdiction over actions of that type. 22. The second complaint was directed against the Regional Court. The applicant contested, inter alia, the fairness of the proceedings leading to its decision of 19 April 2012 (see paragraph 15 above). In a constitutional judgment of 16 January 2013, the Constitutional Court allowed the relevant part of the applicant’s complaint and found a violation of his right to a fair hearing. It held, in particular, that the Regional Court had failed to take account of relevant aspects of the case and to give adequate reasoning in respect of them. Accordingly, it quashed the Regional Court’s decision of 19 April 2012 and remitted the applicant’s action of 20 December 2011 to the Regional Court for fresh examination. Moreover, it awarded the applicant EUR 2,000 in respect of non-pecuniary damage. II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Constitution (Constitutional Law no. 460/1992 Coll., as amended)
23. The relevant part of Article 48 § 2 provides:
“Everyone shall have the right to have his matter ... heard without undue delay ...”
24. 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 award 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)
25. The relevant part of section 53 reads:
“1. A[n] [individual] complaint [under Article 127 of the Constitution] is not admissible if the complainant has not exhausted legal remedies or other legal means, which a statute effectively provides to [the complainant] with a view to protecting [the complainant’s] fundamental rights or freedoms, and which the complainant is entitled to use under special statute. 2. The Constitutional Court shall not declare a[n] [individual] complaint inadmissible even if the condition under subsection 1 has not been fulfilled, if the complainant establishes that [he or she] has not fulfilled this condition for reasons worthy of particular consideration.”
C. Statement of the Vice-President of the Constitutional Court
26. On 15 June 2016 the Vice-President of the Constitutional Court issued a written statement in response to a request by the Government Agent concerning the admissibility and merits of the present case. He stated that he leaned towards the Constitutional Court’s decision in the present case. In particular, he noted that jurisdiction to deal with alleged delays in administrative proceedings was vested with administrative tribunals under Article 250t of the CCP. This excluded jurisdiction of the Constitutional Court in relation to the length of administrative proceedings as such. However, if an administrative tribunal’s decision concerning the length of administrative proceedings was considered to be arbitrary, the Constitutional Court could still review it under Article 127 of the Constitution for compliance with the requirement of fairness. The result of that review in the present case had been the finding of a violation of the applicant’s right to a fair hearing and an award of damages. Moreover, as an action under Article 250t of the CCP had no compensatory effect, it could have been complemented by compensation claims under the State Liability Act. D. Code of Civil Procedure
27. At the relevant time, the rules of procedure for the administrative judiciary were embodied in the 1963 Code of Civil Procedure (Law no. 99/1963 Coll., as amended), in particular its Chapter (Časť) 5. Under those rules, by virtue of an amendment that entered into force on 1 January 2003 administrative tribunals had jurisdiction, inter alia, to examine complaints concerning inactivity of public administrative authorities (Section (Hlava) 4 – konanie proti nečinnosti orgánu verejnej správy). 28. Under Article 250t § 1, any natural or legal person alleging that a public administrative authority was not dealing with a matter in a timely fashion, in breach of the law and without a weighty reason, could apply to an administrative tribunal for an order instructing the authority concerned to proceed with the matter and to decide on it. However, such a remedy could be pursued only after the exhaustion of all ordinary remedies available, in accordance with the relevant legislation. 29. If an action under Article 250t § 1 was to be allowed, under paragraph 4 of that Article the administrative tribunal would define an appropriate time-limit, not longer than three months, within which the defendant authority had to take a decision. This time-limit could be extended at the request of the authority concerned. 30. In the event of failure by the authority in question to abide by the time-limit, subject to a repeated request by the party concerned, the administrative tribunal had the power to impose, even repeatedly, a fine of up to 3,280 euros (EUR) on that authority (Article 250u). E. State Liability Act
31. State liability for damage is regulated by the State Liability Act (Law no. 514/2003 Coll., as amended). Its section 3(1)(d) provides that the State is liable for damage which has been caused by maladministration (nesprávny úradný postup). 32. Section 9, which deals with compensation for damage caused by maladministration, provides:
“1. The State shall be liable for damage caused by maladministration. Maladministration includes a public authority’s failure to take action or issue a decision within the statutory time-limit, general inactivity in the exercise of public authority, unjustified delays in proceedings, or other unlawful interference with the rights and legally recognised interests of individuals and legal entities. 2. The right to compensation for damage caused by maladministration is vested in the person who sustained the damage.”
33. Section 17 defines the manner and extent of compensation for damage. It provides in its relevant part:
“1. Damage and lost profit shall be compensated for, unless special legislation provides otherwise. 2. In the event that the finding of a violation of a right alone is not adequate compensation in view of the loss caused by the unlawful official action or wrongful official conduct, monetary compensation shall also be awarded for non-pecuniary damage, if it is not possible to compensate for it otherwise.”
F. Practice in respect of actions brought under the State Liability Act
34. In a judgment of 12 November 2013 the Bratislava Regional Court examined appeal no. 5Co 152/2013 in a case, at the heart of which was the length of administrative proceedings for the issuance of a construction permit. 35. Following an action brought on 19 March 2004 under Article 250t § 1 of the CCP by the person seeking the permit (“the builder”), the Žilina Regional Court issued a decision on 24 January 2008 finding that there had been unjustified delays in the administrative proceedings and ordering the planning authority to proceed and decide on the matter within thirty days. 36. Relying on that judgment, the builder argued that the unjustified delays in the administrative proceedings amounted to maladministration within the meaning of section 9 of the State Liability Act. At the same time, he pointed out that it had taken more than three years and ten months for his action under Article 250t § 1 of the CCP to be determined, and argued that the length of the proceedings on that action alone amounted to maladministration. 37. In the aforementioned judgment of 12 November 2013 the Bratislava Regional Court upheld the first-instance judgment dismissing those claims. In doing so, it fully endorsed the conclusions of the first-instance court, including that:
-  in view of all the circumstances, including the judgment 24 January 2008, there had been maladministration on the part of the planning authority;
-  no financial compensation in respect of non-pecuniary damage caused by that maladministration was in place since the proceedings in respect of the construction permit were still pending and the planning authority could still redress any non-pecuniary damage sustained by the builder by issuing the construction permit he was seeking;
-  although the proceedings in the action under Article 250t § 1 of the CCP had lasted nearly four years, there were no statutory time-limits for their completion. Accordingly there could not have been any maladministration on account of their length. Moreover, the builder could have challenged their length by way of a complaint under Article 127 of the Constitution, which excluded jurisdiction of the ordinary courts in the matter under the State Liability Act;
-  furthermore, as the administrative tribunal dealing with the builder’s action under Article 250t § 1 of the CCP had no power to deal with the merits of his request for a construction permit, and as he had failed to seek judicial enforcement of the decision of 24 January 2008, the State was not liable for any non-pecuniary damage allegedly caused by the length of the proceedings in the action under Article 250t § 1 of the CCP. THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION, ALONE AND IN CONJUNCTION WITH ARTICLE 13 OF THE CONVENTION
38. The applicant complained that the length of the proceedings on his restitution claim had been excessive and that he had had no effective remedy at his disposal in that respect, contrary to the requirements of Article 6 § 1 and Article 13 of the Convention. The relevant part of Article 6 § 1 provides:
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
Article 13 provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
A. Admissibility
1. The parties’ submissions
39. As to the complaint under Article 6 § 1 of the Convention, the Government pointed out that in its judgment of 16 January 2013 the Constitutional Court had found a violation of the applicant’s rights and awarded him EUR 2,000 in damages. Moreover, that judgment had led to a re‑examination of the applicant’s first complaint under Article 250t § 1 of the CCP, which had eventually ended with the decision of 11 April 2013 recognising that there had been unjustified delays in the administrative proceedings and ordering their acceleration (see paragraphs 16 and 22 above). The Government argued that, in the light of those compensatory and preventive measures, the applicant had lost his status as a victim of a violation of his right to a hearing within a reasonable time in relation to the part of the administrative proceedings preceding the decision of 11 April 2013. 40. As for the subsequent period, the Government pointed out that the applicant had repeatedly sought acceleration of the administrative proceedings by way of an action under Article 250t § 1 of the CCP. They considered that the fact that that action had been allowed, as had ultimately been his first action under that provision, was a demonstration of its effectiveness. In their view, therefore, the applicant should have resorted to that remedy anew. Relying on the judgment of the Bratislava Regional Court in an unrelated case (see paragraphs 34 et seq. above), the Government further argued that the applicant could have sought compensation for the length of the administrative proceedings by way of an action under the State Liability Act. Lastly, they pointed out that, subject to the subsidiarity principle, the protection of the applicant’s fundamental rights remained within the jurisdiction of the Constitutional Court under Article 127 of the Constitution. They concluded that, as regards that period, by not having made use of those avenues, the applicant had failed to satisfy the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convection. 41. Other than that, the Government accepted that the complaint concerning the length of the proceedings was not manifestly ill-founded, although the subject-matter was complex and the applicant had had to be repeatedly asked for further clarifications regarding his claim. 42. In relation to the applicant’s complaint under Article 13 of the Convention, the Government referred to the remedies at his disposal as mentioned above, arguing that they comprised preventive as well as compensatory elements, the aggregate of which met the requirements of Article 13 of the Convention. In support of their argument, they pointed out that in Csepyová v. Slovakia ((dec.), no. 67199/01, 8 April 2003), the Court had already accepted an action for acceleration of administrative proceedings under Part 5 of the CCP to be an effective remedy for the purposes of Article 35 § 1 of the Convention. 43. The applicant disagreed and maintained his complaints. He submitted, in particular, that despite two judicial orders under Article 250t of the CCP, there had been no actual acceleration of the administrative proceedings in question. Resorting to that remedy for the third time would have had no better chances of genuine success. In response to his second action under Article 250t of the CCP, the Regional Court had imposed a fine on the Land Office, but in the absence of any accelerating effect this had had no benefit for him since the fine had not been payable to him but to the State. The constitutional judgment in his favour had not been concerned with the alleged violation of his right to a hearing within a reasonable time by the Land Office, as complained of in the present case, but with the violation of his right to a fair hearing by the Regional Court. On a careful reading, the precedent relied on by the Government (see paragraphs 34 et seq. and 40 above) actually disproved the effectiveness of the remedy under the State Liability Act. It was true that the domestic law had enabled him repeatedly to use various remedies, but the reality was that the domestic courts dealing with those remedies were not capable of actually resolving his problem. Lastly, in so far as the Government could be understood as attaching some responsibility for the length of the proceedings to his procedural behaviour, the applicant strongly denied any such responsibility. 2. The Court’s assessment
44. The Court notes first of all that the applicant’s standing to pursue the present application in relation to the proceedings from their beginning and the applicability of Article 6 § 1 of the Convention to these proceedings have not been disputed. It further notes that the applicability of Article 6 § 1 of the Convention has been established by the Court in a similar context (see Csepyová, cited above, and Schmidtová v. the Czech Republic, no. 48568/99, §§ 54-57, 22 July 2003). (a)  Victim status
45.

Outcome for Article 6: violation