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THIRD
SECTION
CASE OF LESAR v. SLOVENIA
(Application
no. 66824/01)
JUDGMENT
STRASBOURG
30
November 2006
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Lesar v. Slovenia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr J. Hedigan, President,
Mr B.M.
Zupančič,
Mr C. Bîrsan,
Mrs A.
Gyulumyan,
Mr E. Myjer,
Mr David Thór
Björgvinsson,
Mrs I. Berro-Lefevre, judges,
and Mr V. Berger, Section Registrar,
Having
deliberated in private on 9 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 66824/01) against the
Republic of Slovenia lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a Slovenian national, Mr Ladislav Lesar (“the applicant”),
on 20 October 2000.
- The
applicant was represented by Mrs Mengus, a lawyer
practising in Strasbourg. The Slovenian Government (“the
Government”) were represented by their Agent, Mr L. Bembič,
State Attorney-General.
- The
applicant alleged, inter alia, under Article 6 § 1 of the
Convention that the length of the proceedings before the domestic
courts to which he was a party was excessive. In substance, he also
complained about the lack of an effective domestic remedy in respect
of the excessive length of the proceedings (Article 13 of the
Convention).
- On
8 July 2004 the Court
declared the application partly inadmissible and decided to
communicate the complaints concerning the length of the proceedings
and the lack of remedies in that respect to the Government. Applying
Article 29 § 3 of the Convention, it decided to examine the
merits of the application at the same time as
its admissibility.
THE FACTS
- The
applicant was born in 1939 and lives in Ljubljana.
- On
11 January 1984 the applicant, while walking on the street under the
influence of alcohol, run into another person, I.Š., who
sustained injuries.
- On
20 June 1989 I.Š. instituted civil proceedings against the
applicant in the Ljubljana Basic Court (Temeljno sodišče
v Ljubljani) seeking compensation for the loss of income and a
monthly rent.
On 17
June 1991 the court delivered a judgment, partly upholding I.Š.'s
claim.
On 13
November 1991 the Ljubljana Higher Court (Višje sodišče
v Ljubljani) quashed the first-instance court's judgment and
remitted the case to the first-instance court for re-examination.
After
the Ljubljana Basic Court had issued a new judgment in the case, the
Ljubljana Higher Court, on 4 November 1992, quashed it again.
On 25
November 1993, after the re-examination of the case, the Ljubljana
Basic Court ruled in favour of I.Š. The applicant again
appealed.
On 2
February 1994 the Ljubljana Higher Court rejected his appeal.
- On
21 March 1994 the applicant lodged an appeal on points of law with
the Supreme Court (Vrhovno sodišče).
On 28
June 1994 the Convention entered into force in respect of Slovenia.
On 8
December 1994 the Supreme Court rejected the applicant's appeal.
The
judgment was served on the applicant on 1 February 1995.
- On
13 March 1995 the applicant lodged a constitutional appeal.
On 16
January 1997 the Constitutional Court (Ustavno sodišče)
annulled the lower courts' judgements due to a violation of equal
protection of rights guaranteed in Article 22 of the Slovenian
Constitution. It found that the courts had, in determining the
existence of the applicant's civil liability for damages, relied on
final judgments issued in separate proceedings which had deprived the
applicant of his right to defend his interests effectively. It
ordered a re-examination of the case.
- In
the meantime, however, the applicant, on 10 April 1995, lodged a
request for re-opening of the proceedings. After two hearings (the
first one was adjourned due to the applicant's late submissions) the
renamed Ljubljana Local Court (Okrajno sodišče v
Ljubljani), on 13 May 1996, upheld the applicant's request and
annulled the first-instance judgement of 25 November 1993. That
decision was served on the applicant on 12 July 1996.
On 13
September 1996 the Ljubljana Higher Court partly upheld I.Š.'s
appeal but approved the decision concerning the re-opening. The
decision was served on the applicant on 8 October 1996.
11.
On an unspecified date, but apparently prior to April 1998, the
applicant lodged criminal charges for the abuse of public office with
the Novo Mesto District Court (OkroZno sodišče v Novem
mestu) against the judge B.I., who was responsible for the
first-instance proceedings prior to their re-opening.
In
addition, the applicant lodged a civil claim with the Celje District
Court (OkroZno sodišče v Celju) against the State
seeking compensation for damage resulting from the allegedly unlawful
proceedings.
On 21
April 1998 the Ljubljana Local Court sent the case-file to Novo Mesto
District Court to enable it to decide on the criminal charges against
the judge.
It
received the case-file back on 15 March 1999.
On 11
October 1999 the case-file was sent to the State Attorney's Office
which had requested it in respect of the civil proceedings instituted
against the State. On 17 January 2000, the Celje District Court
decided to discontinue the civil proceedings against the State until
the main proceedings and the criminal proceedings would be concluded.
- In
the main proceedings, the case was again considered before the
Ljubljana Local Court as a result of the re-opening decision of 13
May 1996 and the Constitutional Court's decision of 16 January 1997
(see paragraphs 9 and 10).
At
the hearing held on 1 December 1999, the Ljubljana Local Court
noticed that the case-file was still at the State Attorney's Office.
However, on 28 December 1999 the case-file was returned and the
proceedings continued.
Between
22 November 1999 and 20 November 2002, the applicant lodged eleven
preliminary written submissions and adduced evidence.
On 28
November 2001 the court appointed a medical expert.
During the proceedings, the court made also inquires with I.Š.'s
employer and the Slovenian Institute for Statistics (Zavod
Republike Slovenije za statistiko) concerning the question of
loss of I.Š.'s potential income.
Of
the nine hearings held between 1 December 1999 and 20 November 2002,
one was adjourned due to the applicant's late submissions. Two
hearings fixed for 5 June 2000 and 13 September 2000 were called off
due to an unavailability of a witness.
On 20
November 2002 the court issued an interim judgment finding that the
applicant was liable for damages up to forty per cents. The judgment
was served on the applicant on 13 January 2003.
13. On
27 January 2003 the applicant appealed. I.Š. also appealed.
On 11
June 2003 the Ljubljana Higher Court partly upheld the applicant's
appeal and reduced his liability to twenty per cent. The judgment was
served on the applicant on 7 July 2003.
14. In
the course of the proceedings the applicant lodged two and I.Š.
three requests for supervision.
The
applicant informed the judge M.J., responsible for the first-instance
proceedings (paragraph 12), that he might initiate criminal
proceedings also against her. He also lodged a request for opening of
disciplinary proceedings against her and against the Ljubljana Higher
Court's judges who had decided on his appeal.
15.
On 23 July 2003 the applicant and on 18 August 2003 I.Š.
lodged appeals on points of law.
On 7
October 2004 the Supreme Court rejected the appeals.
The
decision was apparently served on the applicant on 5 November 2004.
16.
In the meanwhile, on 27 August 2003, the applicant lodged a
constitutional appeal against the first and the second-instance
courts' judgments.
On 6
July 2005 the Constitutional Court, taking into account also the
Supreme Court's decision of 7 October 2004, dismissed the applicant's
appeal as manifestly ill-founded. The decision was served on the
applicant on 11 July 2005.
17.
The first-instance proceedings concerning the amount of compensation
to be awarded to I.Š. are still pending.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE
CONVENTION
- The
applicant complained about the excessive length of the civil
proceedings instituted against him by I.Š. 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...”
- In
substance, the applicant further complained that the remedies
available for excessive legal proceedings in Slovenia were
ineffective.
Article
13 of the Convention reads as follows:
“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
- The
Government pleaded non-exhaustion of domestic remedies.
- The
applicant contested that argument, claiming that the remedies
available were not effective.
- The
Court notes that the present application is similar to the cases of
Belinger and Lukenda (Belinger v. Slovenia
(dec.), no. 42320/98, 2 October 2001, and Lukenda v.
Slovenia, no. 23032/02, 6 October 2005). In those cases the Court
dismissed the Government's objection of non-exhaustion of domestic
remedies because it found that the legal remedies at the applicant's
disposal were ineffective. The Court recalls its
findings in the Lukenda judgment that the violation of the
right to a trial within a reasonable time is a systemic problem
resulting from inadequate legislation and inefficiency in the
administration of justice.
- As
regards the instant case, the Court finds that the Government have
not submitted any convincing arguments which would require the Court
to distinguish it from its established case-law.
- The
Court further notes that the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. Nor is it inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Article 6 § 1
- The
period to be taken into consideration began on 28 June 1994, the day
when the Convention entered into force with respect to Slovenia.
However, in order to assess the reasonableness of the length of time
in question, the Court will have regard to the stage reached in the
proceedings on 28 June 1994 (see, among other authorities, Humen
v. Poland [GC], no. 26614/95, § 59, 15 October 1999).
The
proceedings have not yet ended. The relevant period has therefore
lasted over twelve years for four levels of jurisdiction. Due to
remittals, the case was considered on several instances.
- 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, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
Government argued that the case was a complex one and that the
domestic courts could not be criticised for not being active in the
proceedings at issue. Before being quashed by the Constitutional
Court, the case was decided by a final decision in five years and
seven months, despite the involvement of seven instances. They
pointed out that the applicant made use of virtually all available
legal remedies in the relevant proceedings. He also requested that
criminal and disciplinary proceedings be instituted against the judge
and lodged a compensation claim against the State. While admitting
that to make use of those remedies was the applicant's right, the
Government stated that it should not be ignored that dealing with
them required additional time. In particular, the first-instance
court did not have in its possession the case-file for more than a
year due to the institution of separate proceedings.
In
addition, the Government submitted that in the first-instance
proceedings some delays were caused also due to problems with
summoning of one of the witnesses: the court failed to serve summons
in respect of four hearings, two of them were called off for that
reason.
28. The
Court cannot but notice that the applicant did indeed take a series
of steps which complicated the proceedings. The applicant succeeded
with his numerous appeals, which resulted in the three
re-examinations of the case before the Convention entered into force
in respect of Slovenia on 28 June 1994 and in one re-examination
in the period under the consideration – after he had
successfully pursued the request for re-opening of the case (Sablon
v. Belgium, no. 36445/97, § 87, 10 April 2001) and the
constitutional appeal.
29. After
the case had been partially decided by the interim judgement of 20
November 2002, the applicant again used all ordinary remedies
available against it (paragraphs 13, 15 and 16 above). In addition,
he instituted proceedings against the State and the relevant judges
which also caused delays in the proceedings at issue since the
competent courts needed to study the case-file (paragraphs 11 and
12).
30.
As to the argument based on the applicant's use of several remedies
(paragraphs 28 and 29 above), the Court notes that, while the
applicant cannot be blamed for making full use of the remedies
available to him under the domestic law, his behaviour, however, is
an objective fact which must be taken into account for the purpose of
determining whether or not the "reasonable time" has been
exceeded (see, mutatis mutandis, Eckle v. Germany,
judgment of 15 July 1982, Series A no. 51, p. 36, § 82). On the
other hand, the Court reiterates that Article 6 § 1 imposes on
the Contracting States the duty to organise their judicial systems in
such a way that their courts can meet each of its requirements.
31.
As to the difficulties with the summoning of a witness, the Court
observes that they contributed to the length of the proceedings only
to a limited extent. It moreover notes that the decision to have
recourse to the testimony of a witness was taken in the context of
judicial proceedings supervised by a judge (see, mutatis mutandis,
Jelen v. Slovenia, no. 5044/02, § 18,
1 June 2006, and Capuano v. Italy, 25 June 1987 Series
A no. 119, p. 13, § 30), who remained responsible for the
preparation and the speedy conduct of the trial.
32. That
being said, the Court notes that after twelve years, within the
period under the Court's jurisdiction, the case against the applicant
is pending before the first-instance court. In addition, over six
years had elapsed between the re-opening of the proceedings and the
delivery of the interim judgment. The court considers that the
absence of the case-file and the applicant's use of several remedies,
which indeed delayed the proceedings, do not, however, justify such
length. The Court notes, above all, that the length of the
proceedings was in a large part a result of a re-examination of the
case. The Court, though not being in a position to analyse the
juridical quality of the case-law of the domestic courts, considers
that, since the remittal of cases for re-examination is usually
ordered as a result of errors committed by lower courts, the
repetition of such orders within one set of proceedings discloses a
deficiency in the judicial system (e.g. DeZelak v. Slovenia,
no. 1438/02, § 25, 6 April 2006).
- Accepting
that the case was of a certain complexity and taking into account the
above considerations, the Court is of the opinion that the length of
the present proceedings could not be considered as justified in the
circumstances of the case.
34. In
view of the foregoing and having regard to its case-law on the
subject, the Court finds that there has been a breach of Article 6 §
1.
2. Article 13
- The
Court reiterates that Article 13 guarantees an effective remedy
before a national authority for an alleged breach of the requirement
under Article 6 § 1 to hear a case within a reasonable time (see
Kudła v. Poland [GC], no. 30210/96, § 156, ECHR
2000-XI). It notes that the objections and arguments put forward by
the Government have been rejected in earlier cases (see Lukenda,
cited above) and sees no reason to reach a different conclusion in
the present case.
- Accordingly,
the Court considers that in the present case there has been a
violation of Article 13 on account of the lack of a remedy under
domestic law whereby the applicant could have obtained a ruling
upholding his right to have his case heard within a reasonable time,
as set forth in Article 6 § 1.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The
applicant claimed 10,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government did not express their opinion on that issue.
- The
Court considers that the applicant must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards him EUR 4,000 under
that head.
B. Costs and expenses
- The
applicant also claimed approximately EUR 15,804 for the costs and
expenses incurred in the domestic proceedings and EUR 4,874 before
the Court.
- The
Government did not express their opinion in that respect.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his 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 information in
its possession and the above criteria, the Court rejects the claim
for costs and expenses in the domestic proceedings and considers it
reasonable to award the applicant, who was represented by a lawyer,
the sum of EUR 1,500 for the proceedings before the Court.
C. Default interest
- 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
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
13 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 4,000 (four
thousand euros) in respect of non-pecuniary damage and EUR 1,500 (one
thousand five hundred euros) in respect of costs and expenses, plus
any tax that may be chargeable;
(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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 30 November 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Vincent
Berger John Hedigan
Registrar President
