FIRST SECTION

CASE OF KURCÁB v. SLOVAKIA

(Application no. 20913/21)

JUDGMENT

STRASBOURG

15 December 2022

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

In the case of Kurcáb v. Slovakia,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

Krzysztof Wojtyczek , President , Ivana Jelić, Erik Wennerström , judges , and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 24 November 2022,

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

PROCEDURE

1. The case originated in an application against Slovakia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 16 April 2021.

2. The applicant, a Slovak national, was represented by Mr V. Janíček , a lawyer practising in Bratislava.

3. The Slovak Government (“the Government”) were given notice of the application.

THE FACTS

4. The applicant’s details and information relevant to the application are set out in the appended table.

5. The applicant complained of the excessive length of restitution proceedings which his legal predecessor had initiated on 29 December 1992 sets of proceedings with the Kežmarok and Poprad Land Offices. He also complained under Article 13 of the Convention.

6. On 8 and 22 June 2012 the Kežmarok Land Office, and on 23 May 2013 the Poprad Land Office, partially granted the applicant’s restitution claim.

7. On 21 October 2013 the Kežmarok Land Office ordered the reopening of the proceedings, having quashed the decisions of 8 and 22 June 2012. The decision to reopen the proceedings was quashed by the appellate administrative organ on 3 November 2014.

8. The Kežmarok Land Office dismissed the restitution claim on 31March 2015 for being belated.

9. The Prešov Regional Court upheld the latter decision on 30 October 2015 and the applicant appealed.

10. On 27 September 2017 the Supreme Court overturned the Regional Court’s judgment, quashed the Kežmarok Land Office’s decision of 31 March 2015 and remitted the case to it for further proceedings.

11. The Kežmarok Land Office discontinued the proceedings concerning the reopening on 3 May 2018, whereby its decisions of 8 and 22 June 2012 became final.

12. On 18 August 2020 the applicant lodged a constitutional complaint, submitting that his right to a trial within a reasonable time had been violated before the Kežmarok and Poprad Land Offices.

13. In October 2020 the Kežmarok Land Office issued several decisions concerning another part of the restitution claim. The applicant lodged an administrative appeal and on 4 February 2021 the Prešov District Office quashed all the decisions and remitted the case for new proceedings to the Kežmarok Land Office.

14. On 19 January 2021 the Constitutional Court dismissed the applicant’s complaint for non-exhaustion of the administrative action for acceleration of the administrative proceedings under the new Code of Administrative Procedure (CAP). It emphasised that the preventive effect of the “new” action for inactivity was now stronger, as the proceedings concerning the inactivity of the administrative organ only ended after the cessation of the inactivity which the organ is obliged to prove within a certain time-limit. The Constitutional Court did not reproach the applicant for not using an action for damages under the State Liability Act (I. US 14/2021).

15. As follows from the applicant’s representative’s letter of 26 April 2022, the proceedings are still pending before the administrative organs.

THE LAW

16. The applicant complained principally that the length of the restitution proceedings in question had been incompatible with the “reasonable time” requirement. He relied on Article 6 § 1 of the Convention, which reads as follows:

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

17 . In respect of the restitution proceedings, the Government submitted that the applicant had failed to exhaust all available remedies, since he had not challenged their length by means of an administrative action for acceleration of the administrative proceedings provided for in Articles 242 ‑ 251 of the CAP, as also required by the established practice of the Constitutional Court. They stressed that the latter action constitutes an effective preventive remedy and that the decision on it is binding in the subsequent compensatory proceedings under the State Liability Act. Should the applicant be unsuccessful in those proceedings he could then turn to the Constitutional Court. The Government further referred to a judgment of the Bratislava Regional Court by which the plaintiff had been awarded non ‑ pecuniary damages for excessive length of restitution proceedings, thereby proving that the action under the State Liability Act constituted an effective compensatory remedy which the applicant should have used.

18. The applicant submitted that the action for acceleration of the administrative proceedings lacked any preventive effect since such proceedings may also take several years, as demonstrated by several judgments of the Constitutional Court finding a violation of the petitioner’s right to a hearing within a reasonable time in that type of proceedings.

19. As regards the Bratislava Regional Court’s judgment referred to by the Government, the applicant submitted that it represented only an isolated decision and demonstrated the low amount of just satisfaction awarded at the domestic level. Moreover, under the State Liability Act the plaintiff was required to prove a causal link between the alleged non-pecuniary damage and the excessive length of the proceedings. Thus, the applicant considered that, unlike the constitutional complaint, the remedies relied upon by the Government were ineffective.

20. As for the Government’s plea of non-exhaustion, the Court observes that in the cases of Oros v. Slovakia [Committee] (no. 7303/21, §§ 18-21, 18 November 2021), Kľačanová v. Slovakia [Committee] (no. 8116/19, §§ 28-30, 31 March 2022), and Balogh and Others v. Slovakia [Committee] (nos. 7918/19 and 43062/20, §§ 18-22, 16 December 2021), concerning excessive length of restitution proceedings before administrative organs and courts, it held that the applicants could not be expected to lodge an administrative action for acceleration of the proceedings under the CAP, followed by a civil action under the State Liability Act, since the impugned restitution proceedings had already been pending for a considerable time when the new action was introduced.

21. The same considerations apply to the present case. The Court notes that at the time when the CAP entered into force, namely on 1 July 2016, the impugned proceedings had already been pending for many years before the Land Offices and the administrative courts. At that stage, a violation of the applicant’s right to a hearing within a reasonable time had already occurred and a mere preventive remedy could not provide adequate satisfaction (see Ištván and Ištvánová v. Slovakia , no. 30189/07, § 82, 12 June 2012). Yet, the administrative action for acceleration of the proceedings under the CAP provides exclusively this type of satisfaction.

22. As regards the civil action under the State Liability Act, the Court takes note of the example used by the Government in order to demonstrate the effectiveness of this remedy. Nevertheless, the Court has already found that a cumulation of remedies, which by extension leads to multiplication of judicial proceedings, raises general doubts about its overall effectiveness (see Balogh and Others v. Slovakia , no. 35142/15, § 57, 31 August 2018). Thus, given the length of the restitution proceedings in the present case, the Court is of the view that the applicant cannot be expected to lodge yet another action, namely an action for damages under the State Liability Act. Indeed, this would place an excessive burden on him, taking into account that such proceedings could potentially be held before several levels of jurisdiction and would entail supplementary legal costs and expenses (see Balogh and Others [Committee], cited above, §21). Moreover, the applicant lodged a constitutional complaint which is deemed to have a compensatory effect in cases of excessive length of proceedings (see Andrášik and Others v. Slovakia (dec.), nos. 57984/00 and 6 others, ECHR 2002 IX).

23. In the light of these considerations, the Government’s objection of non-exhaustion must be dismissed.

24. 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 applicant and the relevant authorities and what was at stake for the applicant in the dispute (see Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

25. In the leading case of Balogh and Others (cited above, § 70), the Court has already found a violation of Article 6 of the Convention given an excessive length of the proceedings.

26. Having examined all the material submitted to it, the Court has not found any fact or argument capable of justifying the overall length of the proceedings at the national level. 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.

27. These complaints are therefore admissible and disclose a breach of Article 6 § 1 of the Convention.

28. The applicant complained under Article 13 of the Convention that he had not had an effective remedy at his disposal in respect of the excessive length of the restitution proceedings.

29. This complaint is admissible and constitutes a violation of Article 13 of the Convention, having regard to the Court’s findings in the leading case of Balogh and Others (cited above, §§ 48-67).

30. 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.”

31. Regard being had to the documents in its possession and to its case ‑ law (see, in particular, Balogh and Others , cited above , § 74), the Court considers it reasonable to award the sums indicated in the appended table.

32. The Court further 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,

(a) that the respondent State is to pay the applicant, within three months, the amounts indicated in the appended table,

(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

Done in English, and notified in writing on 15 December 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Viktoriya Maradudina Krzysztof Wojtyczek Acting Deputy Registrar President

APPENDIX

Application raising complaints under Article 6 § 1 of the Convention

(excessive length of proceedings)

Application no.

Date of introduction

Applicant’s name

Year of birth

Representative’s name and location

Start of proceedings

End of proceedings

Total length

Levels of jurisdiction

Domestic court

File number

Domestic award

(in euros)

Other complaints under well-established case ‑ law

Amount awarded for pecuniary and non-pecuniary damage per applicant

(in euros) [1]

Amount awarded for costs and expenses per application

(in euros) [2]

20913/21

16/04/2021

Martin KURCÁB

1975Vladimír Janíček

Bratislava

Proceedings no. 1

29/12/1992

Proceedings no. 2

29/12/1992

Proceedings no. 1

pending

Proceedings no. 2

pending

Proceedings no. 1

More than 29 years, 9 months and 20 days

2 levels of jurisdiction

Proceedings no. 2

More than 29 years,

9 months and 20 days

1 level of jurisdiction

Constitutional Court

I. US 14/2021

0Art. 13 - lack of any effective remedy in domestic law - The applicant complains that he did not have an effective remedy in respect of lengthy proceedings, since the Constitutional Court required him to use an action for inactivity under the new Code on Administrative Procedure. Since the action for inactivity does not have any compensatory effect, in order to obtain compensation for the violation that had already occurred the applicant would have to lodge an action under the State Liability Act.

In Balogh and others v. Slovakia , no. 35142/15, §§ 55-58, 31 August 2018, the Court found that the functional relationship between the remedy under the State Liability Act and the constitutional complaint was equivocal and that a cumulation of remedies, which by extension leads to multiplication of judicial proceedings raises general doubts about its overall effectiveness. In the present case, the applicant lodged a constitutional complaint that has both preventive and compensatory effect.

19,500

250[1] Plus any tax that may be chargeable to the applicant.

[2] Plus any tax that may be chargeable to the applicant.