Resolution CM/ ResDH (2010) 111 [1]

Execution of the judgment of the European Court of Human Rights

Komanický against Slovak Republic

(Application No. 32106/96, judgment of 4 June 2002 , final on 4 September 2002 )

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns a breach of the applicant ’ s right to a fair trial, in that an appeal court proceeded with his case in his absence, although that he had notified the court in advance that he could not attend for health reasons (violation of Article 6, paragraph 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to clos e the examination of this case.

Appendix to Resolution CM/ ResDH (2010)111

Information about the measures to comply with the judgment in the case of

Komanický against Slovak Republic

Introductory case summary

The case concerns a breach of the right to a fair trial, in that an appeal court proceeded with the applicant ’ s case (concerning his dismissal in 1991) in his absence, although he had notified the court in advance that he could not attend for health reasons. The applicant had already apologised for absence, for different reasons, no less than seven times during the proceedings at issue, when the appeal court held its last hearing and failed, due to a technical error, to take account of the applicant ’ s letter notifying his absence.

In these circumstances, and having regard to the role of appearances in determining whether the principle of the equality of arms have been complied with, the European Court considered that the applicant could not participate properly in the proceedings and comment on all evidence adduced (violation of Article 6, paragraph 1).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

1000 EUR

100 EUR

1100 EUR

Paid on 02/12/2002

b) Individual measures

Following the judgment of the European Court , the applicant complained on several occasions of the impossibility to request the reopening of the domestic proceedings due to the expiry of the time-limit provided in the Code of Civil Procedure (“CCP”). At this time, according to Article 230§2 of the CCP the request for reopening had to be made within three years following the date of the final domestic decision and in the applicant ’ s case this time-limit had expired before the date of the judgment of the European Court.

The Slovakian government indicated in this respect that, considering the circumstances of the case, the violation found was not based on procedural shortcomings of such gravity that a serious doubt is cast on the outcome of the domestic proceedings. Consequently, in the government ’ s opinion the reopening of the domestic proceedings was not required in this case.

That being so, the Committee indicated to the Slovakian authorities that the conditions at that time governing the reopening of domestic proceedings following a judgment of the European Court constituted a considerable obstacle for such requests.

In 2005, the provisions on the reopening of the proceedings were modified. The amended law provides at present that the request for reopening must be lodged within a time-limit of six months following the moment when the interested party learns about the ground for reopening. In addition, according to Article 230§2 of the CCP, in cases where the reopening is requested following a judgment of the European Court, the request can be made after the expiration of the maximum time-limit of three years from the date of the final domestic judgment.

Following the entry into force of these legislative amendments, the applicant requested reopening of the proceedings called into question by the judgment of the European Court . His request was rejected by the first-instance court on 16 January 2006. The court considered inter alia that the contested domestic decision was not declared incompatible with the Convention and that the violation found was not based on procedural shortcomings of such gravity that a serious doubt was cast on the outcome of the domestic proceedings in question. The decision of the first-instance court was confirmed on appeal on 6 October 2006. The applicant also submitted a constitutional claim. This claim was rejected as manifestly ill-founded on 9 December 2009.

In these circumstances, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

The judgment of the European Court was published in Justičnà Revue No. 11/2002. It was also sent to the President of the Supreme Court and to the presidents of all district courts, to be disseminated to all judges.

III. Conclusions of the respondent state

The government considers that no further individual measure is required in this case, that the general measures adopted will prevent similar violations and that the Slovak Republic has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 15 September 2010 at the 1092nd meeting of the Ministers’ Deputies