FOURTH SECTION

CASE OF VARNAVČIN v. SLOVAKIA

(Application no. 41877/05)

JUDGMENT

STRASBOURG

18 January 2011

This judgment is final but it may be subject to editorial revision.

In the case of Varnavčin v. Slovakia,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
	Lech Garlicki, President,
	Ján Šikuta,
	Vincent A. de Gaetano, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 14 December 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 41877/05) 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 Varnavčin (“the applicant”), on 8 November 2005.
2.  The Government of the Slovak Republic (“the Government”) were represented by their Agent, Mrs M. Pirošíková.
3.  On 7 February 2008 the President of the Fourth Section decided to give notice of the application to the Government. In accordance with Protocol No. 14, the application was allocated to a Committee of three Judges.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1950 and lives in Košice.
5.  The facts of the case, as submitted by the applicant, may be summarised as follows.
A.  Criminal proceedings which the applicant joined with a claim for damages
6.  In 1998 the applicant lodged a criminal complaint against an individual.
7.  On 9 June 2000 the Košice I District Office of Investigation commenced an investigation against the latter in relation to damage allegedly caused to the applicant.
8.  On 22 June 2000 the Košice I District Office of Investigation heard the applicant who in his statement claimed damages of 220,000 Slovakian korunas (SKK).
9.  The accussed was indicted before the Košice I District Court on 26 September 2000.
10.  Between October 2000 and June 2002 the District Court scheduled nineteen hearings. Nine hearings were adjourned on the ground of the failure of the accused or his attorney to appear, whereby in some cases the reasons for their absence were not supported by any evidence. Four hearings had to be adjourned due to one of the chamber's member's illness and two hearings were adjourned due to absence of a witness.
11.  On 17 December 2001 the District Court joined the proceedings with a different criminal case concerning the same accused.
12.  On 5 June 2002 the District Court convicted the accused of an offence and ordered him to pay SKK 220,000 to the applicant in compensation for damage.
13.  On 30 October 2002 the court of appeal quashed the first-instance judgment.
14.  In the subsequent period from February 2003 until February 2006 twelve hearings were scheduled out of which ten had to be adjourned due to absence of the accused or his attorney. At several hearings both the attorney and the accused failed to inform the court of the reasons for their absence.
15.  On 1 July 2005 the President of the Košice I District Court, in reply to the applicant's complaint of the length of the proceedings, admitted that the proceedings had lasted a long time, which was due to absence of the accused and illness of one member of a chamber. However, the President found that there were no subjective delays attributable to the court.
16.  On 10 November 2005 the District Court requested an expert opinion relating to the state of health of the accused with regard to his ability to attend a hearing.
17.  On 22 February 2006 a hearing took place at which the accused refused to give a statement.
18.  On 4 April 2006, after the accused had failed to appear before the court for the hearing scheduled for 27 March 2006, the District Court issued a warrant for his arrest.
19.  On 19 April 2006 the warrant was quashed since the accused had proved that he had been ill at the time of the hearing.
20.  On 22 May and 21 June 2006 the District Court adjourned the hearing as the attorney of the accused and the accused failed to appear.
21.  From June 2006 until October 2006 the District Court sent several inquiries to the doctor of the accused including a request for a second expert opinion relating to the state of health of the accused with regard to his ability to attend a hearing.
22.  On 15 October 2007 a hearing took place. On 15 November 2007, after the accused had failed to appear before the court for the hearing scheduled for 7 November 2007, the District Court issued a new warrant for his arrest.
23.  On 25 January 2008 the accused was remanded in custody.
24.  On 12 March 2008 the accused was found guilty of fraud and ordered to pay an amount of money in compensation for damage to the injured parties including the applicant. The prosecutor appealed.
25.  On 23 October 2008 the Košice Regional Court dismissed the appeal.
B.  Constitutional proceedings
26.  On 18 August 2005 the Constitutional Court dismissed the applicant's complaint about the length of the proceedings before the Košice I District Court. The Constitutional Court found that the right under Article 48 § 2 of the Constitution to a hearing without unjustified delay did not extend to the applicant's claim for compensation filed in the context of criminal proceedings against a third person. Furthermore, it was open to the applicant to submit his claim to a civil court. Article 48 § 2 of the Constitution would apply to such civil proceedings.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A.  Code of Criminal Procedure (Law no. 141/1961 Coll., as amended, applicable to the present case)
27.  Article 43 §§ 1 and 2 provides, inter alia, that a person who has suffered pecuniary or non-pecuniary damage as a result of a criminal offence may claim compensation from the accused and request the court, when convicting the person charged with a criminal offence, to order the latter to pay compensation for the damage. The aggrieved party further has the right to adduce evidence and to comment on it, to inspect the court file, to take part in the hearing and to make submissions.
28.  An aggrieved party who has a lawful claim against an accused person for compensation in respect of damage resulting from a criminal offence, has the right to propose that a conviction should include an order for compensation. The proposal must be made at the latest at the closure of the investigation and must indicate the ground and scope of the claim.
29.  Pursuant to Article 66 § 1 the court can impose a fine up to SKK 50,000 on those who inter alia without a sufficient excuse disobey the court's order or do not respect the court's call given in accordance with the law.
30.  Pursuant to Article 228 § 1, where a court convicts a person charged with an offence which has caused damage to third persons under Article 43 § 1, it shall, as a rule, order him or her to compensate such damage, provided that the claim has been filed in due time.
31.  Under Article 229 § 1, a court shall refer a person claiming damages to a civil court (or to another authority) when the evidence available is not sufficient to determine that claim or where the taking of further evidence exceeding the scope of the criminal case is required and the criminal proceedings would thereby be unduly prolonged.
B.  Constitutional Court Practice
32.  The Constitutional Court held in its findings (see for example I. ÚS 157/02; III. ÚS 183/05; I. ÚS 18/06 and I. ÚS 67/2010) that an aggrieved party who joined criminal proceedings with a claim for damages has the right to a hearing “without unjustified delay” (Article 48 § 2 of the Constitution) as such a duly lodged claim excludes the possibility of having it decided upon in civil proceedings (Article 83 of the Code of Civil Procedure).
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
33.  The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of ... any criminal charge against him everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
A.  Admissibility
34. As regard the assessment of the length of the proceedings the Government argued that an injured party is entitled to have his or her claims determined after the criminal proceedings has started and following which he or she has lodged his or her claim for damages, indicating the amount claimed. Therefore the relevant day for the period under consideration was 22 June 2000 when the applicant joined the criminal proceedings in a procedural position of an injured party and claimed damages.
35.  The Government further argued that the complaint was manifestly ill‑founded, as the length of the proceedings was adequate in view of all the circumstances and, in particular, certain factual and procedural complexity of the matter. The investigator as well as the District Court proceeded with the case fluently and the duration of the proceedings was primarily influenced by the state of health and behaviour of the accused and the behaviour of his attorney. In particular, the District Court had to make inquiries about the state of health of the accused and ordered expert opinions on the matter. The applicant was not responsible for any delays. Finally, the Government stated that nothing prevented the applicant from pursuing his claim by the usual means before the ordinary courts.
36.  The applicant contested the Government's objection by arguing that the District Court was rather negligent in his conduct when considering the number of hearings and the subject matter. He further admitted that he had made his claim for damages on 22 June 2000. However, he stated that the period to be taken into consideration by the Court should start as of his first statement before a prosecutor.
37.  The Court reiterates that injured parties, who lodged their claims for damages in the context of criminal proceedings, enjoy the guarantees of Article 6 § 1 of the Convention (see Perez v. France [GC], no. 47287/99, §§ 67‑70, ECHR 2004-I; Krumpel and Krumpelová, no. 56915/00, 5 July 2005, §§ 39-41; and Bíro v. Slovakia, no. 57678/00, §§ 44-45, 27 June 2006). Once injured parties opt for claiming damages in the context of criminal proceedings, they are entitled to have their claims determined within a reasonable time (see Krumpel and Krumpelová, cited above, § 48).
38.  The Court finds that persons who have correctly lodged a claim for damages in the context of criminal proceedings are entitled to benefit from the guarantees of Article 6 § 1 of the Convention. The injured party's civil claim for damages are a component of the criminal proceedings up to the time of delivery of a decision on that matter.
39.  The Court considers that the applicant, as an aggrieved party, had the right to have his claim determined within a reasonable time from the moment he correctly lodged his claim for damages in the context of the criminal proceedings in issue (see Krumpel and Krumpelová, cited above, §§ 39-48) until 23 October 2008 when the court of appeal delivered its decision to upheld the first-instance judgment.
40.  The Court notes that the applicant claimed damages in his procedural position of an aggrieved party when he was heard by the investigator of the Košice I District Office of Investigation on 22 June 2000. The Court further observes that the applicant had not submitted to the Court any evidence suggesting that he had lodged correctly his claim for damages in the context of the criminal proceedings before the date mentioned above.
41.  In view of the above, the period to be taken into consideration lasted in respect of the applicant eight years and four months including pre-trial stage and the proceedings before the court at two levels of jurisdiction. The Court therefore notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
42.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v  France [GC], no. 30979/96, § 43, ECHR 2000‑VII, or Pfleger v. the Czech Republic, no. 58116/00, § 50, 27 July 2004).
43.  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).
44.  Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Although the length of the criminal proceedings was significantly influenced by the illness of the accused, the Court cannot disregard the fact that a number of hearings had to be re-scheduled due to illness of one member of the chamber. Moreover, many of the hearings were adjourned due to the unexcused absence of the attorney and the accused, without taking any other measures by the District Court in order to secure the presence of both the attorney and the accused before it. Having regard to the above and 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.
45.  There has accordingly been a breach of Article 6 § 1.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
46.  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
47.  The applicant claimed an equivalent of 6,640 euros (EUR) in respect of non‑pecuniary damage.
48.  The Government considered the claim excessive.
49.  The Court considers that the applicant must have sustained non‑pecuniary damage. Ruling on an equitable basis, it awards award him EUR 4,100 under that head.
B.  Costs and expenses
50.  The applicant also claimed EUR 183 for the costs and expenses incurred before the domestic courts and the Court. The applicant attached a bill for EUR 3,42.
51.  Pointing to the evidence submitted by the applicant, the Government requested to grant the applicant the reimbursement of only reasonably incurred costs.
52.  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 were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court awards the applicant, who was not represented by a lawyer, the sum of EUR 100 for his out-of-pocket expenses.
C.  Default interest
53.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1.  Declares the application admissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

3.  Holds
(a)  that the respondent State is to pay the applicant, within three months the following amounts:
	(i) EUR 4,100 (four thousand one hundred euros), plus any tax that
	may be chargeable, in respect of non‑pecuniary damage;
(ii) EUR 100 (one 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;

4.  Dismisses the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 18 January 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Lech Garlicki
	Deputy Registrar	President