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THIRD
SECTION
CASE OF NOVINA v. SLOVENIA
(Application
no. 6855/02)
JUDGMENT
STRASBOURG
26 October 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 Novina 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 5 October 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 6855/02) 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 Ratko Novina (“the applicant”),
on 29 January 2002.
- The
applicant was represented by the Verstovšek
lawyers. The Slovenian
Government (“the Government”) were represented by their
Agent, Mr L. Bembič, State Attorney-General.
- The
applicant alleged 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
13 September 2005 the
Court 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 rule on the admissibility and merits of the application at
the same time.
THE FACTS
- The
applicant was born in 1958 and lives in Celje.
- On
8 September 1993 the applicant was injured in a car accident. As a
result, he remained permanently disabled in part. The applicant had
taken out insurance with the insurance company ZT.
- On
6 August 1996 the applicant instituted civil proceedings against ZT
in the Celje District Court (Okrožno sodišče v Celju)
seeking damages in the amount of 3,200,733 tolars (approximately
13,350 euros) for the injuries sustained.
Between
10 October 1996 and 12 January 2000 the applicant lodged nine
preliminary written submissions and adduced evidence.
On 5
November 1996 and 9 September 1998 he requested that a date be set
for a hearing.
Of
the three hearings held between 22 January 1998 and 3 February 2000
none was adjourned at the request of the applicant.
During
the proceedings the court appointed orthopaedic and neurology
experts. The experts were given a delay of thirty days to deliver
their respective opinions, counting from the day the case-file was
served on them. The first expert delivered his opinion in five months
and the second expert in over three months. The court also sought an
additional opinion from the appointed orthopaedist.
At
the last hearing the court decided to deliver a written judgment. The
judgment, upholding the applicant's claim in part, was served on the
applicant on 23 March 2000.
- On
6 April 2000 the applicant appealed to the Celje Higher Court (Višje
sodišče v Celju).
On 23
November 2000 the court dismissed the applicant's appeal.
The
judgment was served on the applicant on 12 December 2000.
- On
11 January 2001 the applicant lodged an appeal on points of law with
the Supreme Court (Vrhovno sodišče).
On 29
November 2001 the court allowed the applicant's appeal, set aside the
judgments of the first- and second-instance courts and remitted the
case for re-examination.
The
decision was served on the applicant on 8 January 2002.
- Between
9 January 2002 and 16 January 2003 the applicant lodged five
preliminary written submissions.
Of
the four hearings held between 28 March 2002 and 15 May 2003 none was
adjourned at the request of the applicant. However, two scheduled
hearings were postponed to a later date at the request of the
applicant. At least one of them was postponed because the applicant's
lawyers were on holidays.
During
the proceedings the court appointed a medical expert and gave him a
delay of thirty days to deliver his opinion. The opinion was
delivered in over two months. The court also took testimonies from
the two experts appointed in the first proceedings before the
first-instance court.
At
the last hearing the court decided to deliver a written judgment. The
judgment, upholding the applicant's claim in part, was served on the
applicant on 5 September 2003.
- On
12 September 2003 the applicant appealed to the Celje Higher Court.
ZT cross-appealed on 22 September 2003.
On 8
June 2005 the court allowed the applicant's appeal in part, dismissed
ZT's appeal and increased the damages awarded.
The
judgment was served on the applicant on 23 May 2005.
- On
6 July 2005 the applicant lodged an appeal on points of law with the
Supreme Court.
On 1
December 2005 the court rejected the applicant's appeal on points of
law as not allowed. The decision was served on the applicant on
29 December 2005.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE
CONVENTION
- The
applicant complained about the excessive length of the proceedings.
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 (see 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 notes that the Government
reiterated their arguments as to why the administrative action, a
claim for damages and a request for supervision should be regarded as
effective legal remedies.
- The
Government also referred to the judgment of the Constitutional Court
of the Republic of Slovenia of 22 September 2005 in the case
U-I-65/05. In that judgment, the Constitutional Court found that the
Administrative Disputes Act, in the part governing the right to a
trial within reasonable time for the proceedings which had already
been terminated, is not in conformity with the Constitution. The
Constitutional Court ordered the legislator to right this
unconstitutional situation within one years' time.
- The
Court finds that, for the time being, the Government have not
submitted any convincing arguments which would require the Court to
distinguish this case from its established case-law (see Belinger
and Lukenda, cited above).
- 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
Government claimed that the proceedings at issue were rather complex
since the courts had to appoint three medical experts to deliver
written expert opinions and also heard two of the appointed experts.
The courts which tried the case did not lack diligence and proceeded
with the case in accordance with the domestic legislation. The
applicant, however, prolonged the proceedings by filing written
submissions which required a reply. He also twice requested that a
hearing be postponed. Taking into consideration the importance of
what was at issue in the domestic proceedings, the applicant should
have exercised his procedural rights with greater care.
- The
applicant contested the Government's arguments.
- The
period to be taken into consideration began on 6 August 1996, the day
the applicant instituted proceedings with the Celje District Court,
and ended on 29 December 2005, the day the Supreme Court's decision
was served on the applicant. It therefore lasted nearly nine years
and five months for three levels of jurisdiction. Due to remittals,
decisions were rendered in six 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).
- Although
an opinion of three medical experts was required to decide the case,
the Court finds that the proceedings were neither procedurally nor
factually of exceptional complexity. The Government did not explain
why had all the appointed experts exceeded the delay given for the
delivery of their opinions and why the courts had not undertaken any
measures to assure more speedy delivery of these opinions. In
addition the appointment of the experts does not explain, for
example, why nearly one year and six months elapsed between the day
the applicant lodged his claim and the day the first hearing was
held.
- As
to the applicant's conduct, it is true that he contributed to some
extent to the prolongation of the proceedings by making two requests
that the hearings be postponed. However, recalling the facts of
similar cases decided by the Court, it appears that his written
submissions were not exceeding in number, length or their content and
thus could not have had a substantial impact on the length of the
proceedings.
- Having
examined all the material submitted to it, and 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.
There
has accordingly 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 5,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government contested the claim.
- The
Court considers that the applicant must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards him EUR 2,000 under
that head.
B. Costs and expenses
- The
applicant also claimed EUR 1,500 for the costs and expenses incurred
before the Court.
- The
Government argued that the claim was too high.
- 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. The Court also notes that the applicant's lawyers, who also
represented the applicant in Lukenda (cited above), lodged
nearly 400 applications which, apart from the facts, are
essentially the same as this one. Accordingly, in the present case,
regard being had to the information in its possession and the above
criteria, the Court considers it reasonable to award the applicant
the sum of EUR 1,000 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 2,000 (two
thousand euros) in respect of non-pecuniary damage and EUR 1,000 (one
thousand 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 26 October 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Vincent
Berger John Hedigan
Registrar President
