THIRD SECTION

DECISION

Application no. 70015/17 Pavol KAPKO against Slovakia

The European Court of Human Rights (Third Section), sitting on 26 November 2019 as a Committee composed of:

Dmitry Dedov, President, Alena Poláčková, Gilberto Felici, judges, and Stephen Phillips, Section Registrar ,

Having regard to the above application lodged on 20 September 2017,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Pavol Kapko, is a Slovak national, who was born in 1969 and lives in Om Å¡ enie. He was represented before the Court by Mr M. Kluka, a lawyer practising in Bratislava.

The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Piro šíková .

2 . The facts of the case, as submitted by the parties, may be summarised as follows.

3 . In July 2009 the applicant ’ s daughter attended a music festival, a part of which was taking place under a large-capacity tent provided by a company based in Germany.

4 . On 18 July 2009 the tent collapsed, and the applicant ’ s daughter was among the many injured. Some of the injured resided abroad. On 13 October 2009 the applicant ’ s daughter succumbed to her injuries.

5 . On 18 July 2009 the Tren čín District police opened an investigation into the incident on suspicion that one or more unidentified persons had committed the offence of endangering the public by negligence.

6 . On 8 June 2010 the police charged A., a director of the company that supplied the tent, with the offence of endangering the public. A. is a German national residing in Germany.

7 . On 10 September 2013 the applicant was questioned by an investigator. He stated, inter alia , that he did not wish to join any claim for damages to the criminal proceedings, since he and his wife were already pursuing a claim for damages before the civil courts (see below).

8 . In a letter of 1 April 2015, in response to a complaint lodged by the applicant, the Trenčín District public prosecutor ’ s office informed him, inter alia, that the length of the proceedings was due to the evidentiary and legal complexity of the case. Evidence had to be taken from a large number of witnesses, victims and expert witnesses and legal assistance had to be obtained from foreign authorities. According to the prosecutor ’ s office, the Slovakian authorities could not be held liable for any delays attributable to foreign authorities.

9 . The Government have submitted – and the applicant has not disputed that submission – that the proceedings also involve a number of insurance companies seeking compensation for the expenses they covered in connection with the injuries suffered in the incident by their clients.

10 . On 24 August 2016 the applicant lodged a complaint under Article 127 of the Constitution with the Constitutional Court. He complained, in particular, that the length of the criminal proceedings in the matter had been excessive and, as such, contrary to the requirements of Article 2 of the Convention and its constitutional equivalent.

11 . On 23 September 2016 A. was indicted to stand trial on the above ‑ mentioned charge before the Tren čín District Court . According to the Government, whose submission has not been disputed by the applicant, prior to the filing of the bill of indictment, the entire investigation file had to be translated into German with a view to enabling A. to exercise his right to familiarise himself with it.

12 . On 12 January 2017 the Constitutional Court declared the complaint of 23 September 2016 inadmissible. It noted that the criminal proceedings complained of did not concern a criminal charge against the applicant himself, but against a third person. Nor did the proceedings involve a determination of the applicant ’ s civil rights and obligations. In that connection, the Constitutional Court referred specifically to the applicant ’ s deposition before the investigator on 10 September 2013 (see paragraph 7 above) to the effect that he did not wish to join any claim for damages to the criminal proceedings since he was already pursuing such a claim in another set of proceedings. Accordingly, the Constitutional Court concluded that the applicant lacked standing ratione personae to complain about the length of the criminal proceedings.

The decision was served on the applicant ’ s lawyer on 10 April 2017 and was not amenable to appeal.

13 . The District Court heard the case on 12 February 2019. The criminal proceedings are ongoing.

14 . On 17 July 2012 the applicant and his wife lodged an action with the District Court against the company that had organised the festival, as well as the company that had supplied the tent. Relying on the rules on the protection of personal integrity, they sought in total 70,000 euros (EUR) in damages for the death of their daughter and their own suffering associated with it.

15 . On 17 September 2018 the District Court ordered the organiser of the festival to pay the applicant and his wife damages of EUR 30,000 each and dismissed the remainder of the claim.

The District Court took and examined extensive documentary, witness and expert evidence, including evidence originating from the criminal proceedings.

It found that the primary cause of the incident had been the improper installation of the tent by its supplier. However, irrespective of the contractual arrangements between the defendants, it was the organiser who had been vicariously responsible for ensuring safety at the festival . By failing to do so, it had rendered itself liable in tort for any damage suffered by third parties as a result of that failure.

The court reiterated that protection of personal integrity in a civil-law context was based on objective responsibility, which did not depend on issues of culpability. It was legally irrelevant whether the organiser was guilty with regard to its unlawful conduct, whether it had acted in good faith and whether it had been at all aware of the unlawfulness of its conduct.

The organiser appealed and the appeal proceedings are ongoing.

16 . The judgment of 17 September 2018 was delivered publically at a hearing held on the same day. A copy of the judgment was served on the applicant on 16 November 2018.

17 . In another application dated 17 December 2018 and sent to the Court on 18 December 2018, the applicant and his wife complained, inter alia , about the length of the proceedings on their action for protection of personal integrity of 17 July 2012. In the summary of the facts underlying that application, they submitted that a first-instance judgment had been given on 17 September 2018, as indicated above, and asked that that application be joined with the present one.

The application has been registered as Kapko and Kapková v. Slovakia (no. 737/19) and is pending.

COMPLAINT

18 . The applicant complained that the length and course of the criminal proceedings in the present case was incompatible with the respondent State ’ s positive obligation under Article 2 of the Convention to ensure an effective and prompt investigation into the incident that had ultimately claimed the life of his daughter.

THE LAW

19 . The applicant complained that the criminal proceedings in the present case had been conducted in a manner incompatible with the requirements of Article 2 of the Convention, the relevant part of which provides:

“1. Everyone ’ s right to life shall be protected by law ...”

20 . In their reply of 28 January 2019, the Government argued first of all that the application was inadmissible on account of what they considered to be an abuse of the right of individual application within the meaning of Article 35 § 3 (a) of the Convention. The fact that the applicant had been awarded a substantial sum of money by the judgment of 17 September 2018 (see paragraph 15 above) was of crucial importance for the assessment of the present case, and the applicant had failed to disclose it to the Court.

21 . As an alternative objection, the Government argued that the applicant ’ s action for protection of personal integrity was still pending, as a result of which in their view the application was premature.

22 . On the substance, the Government pointed out that the Convention did not guarantee the right to compel prosecution and ensure conviction of a third party as such. If the interference by a third private party with the right to life was not intentional, the Convention did not impose on the respondent State an obligation to take criminal-law measures, and its positive obligations in that respect could be fulfilled by civil-law measures, alone or in combination with criminal-law measures. On the facts of the present case, the impugned criminal proceedings did not involve any issue of compensation for the applicant, since he had specifically opted not to pursue any compensation claim in them. The Slovakian legal system provided him with a mechanism for the protection of his rights in the form of an action for protection of personal integrity, which he had used and with which he had already had success at first instance. The application was accordingly manifestly ill-founded.

23 . In a further alternative, should the Court conclude that a criminal ‑ law remedy was called for, the Government pointed out that the investigation had commenced on the very day of the incident and had been conducted by independent investigators under the supervision of the Public Prosecution Service. The length of the criminal proceedings was due to the particular factual and procedural complexity of the case, which made it legally complex. There had been a great number of victims and witnesses. As many of them had been living abroad, many procedural measures had to be taken abroad and it had been necessary to ensure the translation of procedural documents. Complex expert evidence had to be obtained and assessed. The investigation had been thorough and its length had been adequate. In sum, in the Government ’ s view, the criminal proceedings in the present case were compatible with the requirements of Article 2 of the Convention.

24 . The applicant resolutely opposed any suggestion of having abused the right of individual application. Among other arguments, he pointed out that the District Court ’ s judgment of 17 September 2018 had not been served on him until 16 November 2018 (see paragraphs 15 and 16 above), by which time the present application had already been notified to the Government. In the process, he had been instructed not make any submissions until it was his turn to submit observations in reply to those of the Government. Moreover, he pointed out that in the application that would later be registered at the Court under no. 737/19, he and his wife had made separate complaints about the proceedings on their action for protection of personal integrity. They had informed the Court of the course of those proceedings, including of the judgment of 17 September 2018, and had asked for a joinder of that application with the present one (see paragraph 17 above). In his observations, the applicant reiterated the request that the two applications be joined. In his view, this would enable the Court to review both the civil and criminal proceedings as a whole, from the point of view of whether he and his wife had been provided with an effective independent judicial system for the protection of their rights.

25 . As regard the Government ’ s argument that the present application was premature because the action for protection of personal integrity was still pending, the applicant pointed out first of all that the civil proceedings were not at the core of this application. Moreover, any possible award of damages in the civil proceedings was without direct relevance to the issue of the length of those proceedings and of the criminal proceedings.

26 . In addition, the applicant pointed out that since the criminal proceedings in the present case had been instituted on the initiative of the State authorities, a criminal-law remedy was necessary in order for the State to fulfil its positive obligations under Article 2 of the Convention. Furthermore, establishing criminal liability in the present case was important not only for himself, but also for the numerous other victims and for the public. He reiterated the complaint that the length of the criminal proceedings had been excessive and added that this concerned not only the pre-trial stage of the proceedings, but also the trial stage.

27 . The Court notes first of all that although application no. 737/19 and the present application originate from the same factual background, they partly vary in the identity of the applicants, have distinctive objects and are at varying procedural stages before the Court. Moreover, in so far as the applicant, in his observations in reply to those of the Government (see paragraph 24 above), may be understood as wishing to complain under Article 2 of the Convention that he did not have the benefit of an effective independent judicial system securing the availability of legal means capable of establishing the facts, holding accountable those at fault and providing appropriate redress to the victim (see Ciechońska v. Poland , no. 19776/04, § 67, 14 June 2011), such a complaint is beyond the scope of the present application. In addition and in any event, even if the applicant ’ s submission in those observations were to be seen as an extension of the scope of the present application, there is no indication that any such complaint has been raised at the national level so as to satisfy the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention. The Court accordingly finds that there is no need to join the two applications (Rule 42 § 1).

28 . As regards the Government ’ s objection under Article 35 § 3 (a) of the Convention, the Court reiterates that for there to be an instance of abuse of the right of individual application, among other requirements the applicant ’ s intention to mislead the Court must be established with sufficient certainty (see the recapitulation of the relevant principles in Buzinger v. Slovakia (dec.), no. 32133/10, § 17, 16 June 2015, with a further reference). Taking into account the sequence of events in relation to the present application as well as application no. 737/19, the Court finds the fulfilment of this requirement on the specific facts of the present case uncertain. Nevertheless, it considers it unnecessary to determine the matter definitively, since the application is in any event inadmissible for the following reasons.

29 . As regards the Government ’ s remaining arguments, the Court notes that, as it transpires from the application form as well as from the applicant ’ s observations in reply to those of the Government, the present application is concerned with the applicant ’ s rights under Article 2 of the Convention and with the criminal proceedings concerning the incident that ultimately claimed the life of his daughter.

Conversely, the applicant has raised no complaint in relation to the civil proceedings, and a hypothetical general complaint about any failure on the part of the respondent State to discharge its positive obligations under Article 2 of the Convention as such would be inadmissible (see paragraph 27 above).

30 . T he Government ’ s prematurity plea therefore goes beyond the scope of the present application and a separate assessment is not called for.

31 . Any specific Convention complaints made in the context of application no. 737/19 about the proceedings on the action for protection of personal integrity will be examined by the Court in the course of its examination of that application.

32 . Accordingly, the question to be answered in the present case is limited to whether the criminal proceedings in the present case and, in particular, their length, are compatible with the respondent State ’ s positive obligations under Article 2 of the Convention.

33 . In order to place that question in the applicable Convention perspective, the Court reiterates that although in some situations compliance with the positive obligation to secure life entails resorting to criminal-law remedies, if the infringement of the right to life is not intentional, Article 2 does not necessarily require such remedies; the State may meet its obligation by affording victims a civil-law remedy, either alone or in conjunction with a criminal-law one, enabling any responsibility on the part of the individuals concerned to be established and any appropriate civil redress, such as an order for damages, to be obtained. However, that remedy should exist not only in theory; it must operate effectively in practice, within a time-span that allows the case to be examined without unnecessary delay (see Igor Shevchenko v. Ukraine , no. 22737/04, § 51 , 12 January 2012, with further references).

34 . On the facts of the present case, there has been no suggestion at the national level or before the Court of any criminal intent in relation to the incident of 18 July 2009. Rather to the contrary, from the outset and throughout both the criminal and civil proceedings, it has been investigated and dealt with as an issue of negligence (see paragraphs 5 and 15 above). Therefore, the Court finds that on the facts of the present case, Article 2 of the Convention imposed no specific requirement for there to be criminal ‑ law remedies in relation to the incident. It follows that the length of the criminal proceedings alone, which is at the core of the present application, is not capable of engaging the respondent State ’ s responsibility under Article 2 of the Convention.

35 . In so far as the requirement under Article 2 of the Convention for the respondent State to provide an effective independent judicial system securing the availability of legal means capable of establishing the facts, holding accountable those at fault and providing appropriate redress to the victim may be fulfilled by civil-law remedies, the District Court ’ s judgment of 17 September 2018 suggests that the action for protection of personal integrity may in principle fulfil that requirement. In any event, the applicant has raised no specific complaints in that respect and, as noted above, his complaints about the proceedings in respect of that action, including a complaint about their length, will be examined in the context of application no. 737/19.

36 . In sum, to the extent the present application has been substantiated, there is no appearance of a violation of the applicant ’ s rights under Article 2 of the Convention. Accordingly, the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 19 December 2019 .

Stephen Phillips Dmitry Dedov Registrar President