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THIRD
SECTION
CASE OF LESJAK v. SLOVENIA
(Application
no. 33946/03)
JUDGMENT
STRASBOURG
21 July 2009
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 Lesjak v. Slovenia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Elisabet Fura-Sandström,
Corneliu
Bîrsan,
Boštjan M. Zupančič,
Alvina
Gyulumyan,
Egbert Myjer,
Luis López
Guerra, judges,
and Santiago
Quesada, Section
Registrar,
Having
deliberated in private on 30 June 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 33946/03) 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 Robert Lesjak (“the
applicant”), on 14 October 2003.
- The
applicant was represented by Ms Mateja Končan Verstovšek,
a lawyer practising in Celje. The Slovenian
Government (“the Government”) were represented by their
Agent, Mr L. Bembič,
State Attorney-General.
- The
applicant alleged that his right to a trial within a reasonable time
had been violated and that he did not have an effective remedy in
this respect.
- On
12 June 2007 the President of the Third Section decided to inform the
Government of the application and to request them to submit
information under Rule 54 § 2 (a) of the Rules of Court.
Further to receipt of the information requested, the President, on
17 October 2008, decided to invite the Government to submit
written observations on admissibility and merits of the case (Rule 54
§ 2(b) of the Rules). It was also decided to examine the merits
of the application at the same time as its admissibility (Article
29 § 3 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
A. The main proceedings
- On
8 April 1995 the applicant was injured in a car accident. The
perpetrator of the accident, I.R., had taken out insurance with the
insurance company A.
- On
18 October 1999 the applicant instituted civil proceedings against
I.R. and the insurance company A. in the Celje District Court,
seeking damages in the amount of 3,688,433 Slovenian tolars (SIT)
(approximately 15,370 euros) (EUR) for the injuries sustained.
- Between
29 November 2001 and 12 May 2006 the applicant lodged several written
submissions and adduced evidence.
- Between
15 December 2003 and 4 September 2006 the court held eight hearings,
one of which was conducted at the site of the accident. It does not
appear that any of the hearings were adjourned due to the applicant's
fault.
- During
the proceedings, the court also appointed two experts and requested
an additional opinion from one of them.
- After
the last hearing in the case, the court delivered an interim judgment
(vmesna sodba) determining the responsibility for the damage,
which was served on the applicant on 25 September 2006.
- On
9 October 2006 the applicant appealed to the Celje Higher Court. I.R.
and the insurance company A also appealed.
- On
9 May 2007 the Celje Higher Court allowed the applicant's appeal in
part and changed the first-instance court's interim judgment. It
found I.R. and the insurance company A responsible for 70% of the
damage suffered due to the accident.
- The
judgment was served on the applicant on 18 May 2007.
- On
13 June 2007 the insurance company A lodged an appeal on points of
law with the Supreme Court. These proceedings are still pending.
B. The proceedings under the 2006 Act
- On
2 March 2007 the applicant lodged a supervisory appeal with the Celje
District Court. In this supervisory appeal the applicant explained
that the proceedings had started on 18 October 1999 and were
still pending. As a consequence, his right to a hearing within a
reasonable time had been violated. He requested that the proceedings
be expedited and the decision be delivered immediately.
- On
23 March 2007, referring to sections 5(1) and 6(4) of the Act on the
Protection of the Right to a Trial without Undue Delay (“the
2006 Act”), the President of the Celje District Court replied
to the supervisory appeal by explaining that the case file had been
transferred to the Celje Higher Court on 20 March 2007.
II. RELEVANT DOMESTIC LAW
- The
Act on the Protection of the Right to a Hearing without Undue Delay
(Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja,
Official Gazette no. 49/2006- “the 2006 Act”) was passed
by the Slovenian Parliament on 26 April 2006 and became operational
on 1 January 2007.
- The
2006 Act provides for remedies to expedite pending proceedings (a
supervisory appeal and a motion for a deadline). In addition to these
acceleratory remedies, the 2006 Act also provides the possibility to
obtain redress through a compensatory remedy, namely by bringing a
claim for just satisfaction.
- As
regards the acceleratory remedies, a claimant may, during the first-
and second-instance proceedings, that is the proceedings before the
regular courts, use a supervisory appeal if he or she considers that
the court is unduly protracting the decision-making. If the president
of the court dismisses the supervisory appeal or, inter alia,
fails to respond to the claimant within two months, he or she can
lodge a motion for a deadline with the court hearing the case. The
motion for a deadline is dealt with by the president of the higher
court. He or she shall decide on the motion for a deadline within
fifteen days of receiving it.
- As
regards the present case, the following provisions of the 2006 Act
are relevant:
Section 6 - Decision on supervisory appeal
“(1) If the supervisory appeal is manifestly
unfounded having regard to the timetable for resolving the case
concerned by the supervisory appeal, the president of the court shall
dismiss the appeal by a ruling.
(2) If the supervisory appeal does not contain all the
requisite elements referred to in section 5(2) of this Act, the
president of the court shall dismiss it by a ruling. No appeal shall
lie against that ruling.
(3) If no ruling as provided for in paragraphs 1 or 2 of
this section is given, the president of the court shall, as part of
his judicial management powers under the Judicature Act, immediately
request the .... judge or president of a court panel ('the judge') to
whom the case has been assigned for resolution to submit a report
indicating the reasons for the duration of the proceedings not later
than fifteen days after receiving the request of the president of the
court or after obtaining the file, if necessary for drawing up the
report. The report shall include a declaration in respect of the
criteria referred to in section 4 of this Act and an opinion on the
time-limit within which the case may be resolved. The president of
the court may also require the judge to submit the case file if he
considers that, in the light of the allegations of the party
indicated in the supervisory appeal, its examination is necessary.
(4) If the judge notifies the president of the court in
writing that all relevant procedural measures will be performed or a
decision issued within a time-limit not exceeding four months
following the receipt of the supervisory appeal, the president of the
court shall inform the party thereof and thus conclude the
consideration of the supervisory appeal.
(5) If the president of the court establishes that in
view of the criteria referred to in section 4 of this Act the court
is not unduly protracting the decision-making in the case, he shall
dismiss the supervisory appeal by a ruling.
(6) If the president of the court ... in view of the
criteria referred to in section 4 of this Act, establishes that the
court is unduly delaying the decision-making in the case, he shall,
depending on the status and nature of the case and by a ruling, order
a deadline for the performance of certain procedural measures, and
may also order that the case be resolved as a priority owing to the
circumstances of the case, particularly if the matter is urgent. If
he orders that appropriate procedural measures be performed by the
judge, he shall also set the time frame for their performance, which
shall be no less than fifteen days and no longer than six months, and
the appropriate deadline for the judge to report on the measures
performed.
(7) If the president of the court establishes that the
undue delay in decision-making in the case is attributable to an
excessive workload or an extended absence of the judge, he may order
that the case be reassigned. He may also propose that an additional
judge be assigned to the court or order other measures in accordance
with the Judicial Service Act.
...
Section 8 - Motion for a deadline
“(1) If, under section 6(1) or (5) of this Act,
the president of the court dismisses the supervisory appeal or fails
to respond to the party within two months or fails to send the
notification referred to in section 6(4) of this Act within the said
time-limit or if appropriate procedural acts have not been performed
within the time-limit set in the notification or ruling of the
president of the court, the party may lodge a motion for a deadline
on the grounds stated in section 5(1) of this Act with the court
hearing the case.
...
(3) The party may lodge an motion for a deadline within
fifteen days of receiving the ruling or after expiry of the
time-limits provided for in paragraph 1 of this section.”
- As
to the claim for just satisfaction, sections 15, 19 and 20 of the
2006 Act provide that for the party to be able to lodge a claim for
just satisfaction two cumulative conditions must be satisfied.
Firstly, during the first- and/or second-instance proceedings the
applicant must have successfully availed himself of a supervisory
appeal or have lodged a motion for a deadline, regardless of its
outcome. In this connection section 15 provides, in so far as
relevant:
“(1) If the supervisory appeal lodged by the
party has been upheld or a motion for a deadline has been lodged, the
party may claim just satisfaction under the present Act.
...”
- Secondly,
the proceedings must have been “finally resolved”
(pravnomočno končan postopek). The final resolution
of the case refers in principle to the final decision against which
no ordinary appeal lies. This would normally be the first, or if an
appeal has been lodged, the second-instance court's decision.
- As
regards proceedings before the Supreme Court, a claimant can use a
supervisory appeal and a motion for a deadline with an aim to
accelerate the proceedings. It would appear from the text of the 2006
Act that both are dealt with by the president of the Supreme Court. A
claim for just satisfaction is not available in respect of the length
of Supreme Court proceedings. The relevant part of the 2006 Act reads
as follows:
Section 5 - Supervisory appeal
“(1) If a party considers that the court is unduly
protracting the decision-making, he or she may lodge a supervisory
appeal in writing before the court hearing the case; the decision
thereon is taken by the .... president of the court ('the president
of the court').
...
Section 9 - Competence for decision-making
...
(3) The president of the Supreme Court of the Republic
of Slovenia shall have the competence to decide on the motion for a
deadline concerning cases heard by the Supreme Court of the Republic
of Slovenia.
(4) Other judges may be assigned by the annual schedule
of allocation to act in place of or together with the presidents of
courts referred to in previous paragraphs for decision-making on
motions for a deadline.”
- For
a more detailed presentation of the 2006 Act, see
Zunič v. Slovenia, (dec.) no.
24342/04, 18 October 2007.
- As
regards possible outcome of Supreme Court proceedings, the Civil
Procedure Act (Zakon o pravdnem postopku, Official
Gazette no. 26/1999, in force since 14 July 1999)
provides that, depending on the circumstances, the Supreme Court when
upholding an appeal on points of law may remit the case for
re-examination or vary the lower court's judgment.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF
THE CONVENTION
- The
applicant complained that that the length of the civil proceedings
had been excessive in breach of Article 6 § 1 of the
Convention, which, as far as relevant, 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 ...”
A. Admissibility
1. The parties' arguments
- The
Government argued that the applicant had failed to exhaust available
domestic remedies. They maintained that in the circumstances of his
case section 25 of the 2006 Act, which concerns terminated
proceedings, was not applicable, but the applicant should instead use
the remedies normally available under the 2006 Act. They submitted
that the president of the court's reply of 23 March 2007 meant that
the supervisory appeal had been upheld. The supervisory appeal was
also successful, as the procedural measures were carried out within
the time-limit set in section 6, paragraph 4, of the 2006 Act.
The applicant therefore fulfilled one of the two conditions for
lodging a “just satisfaction claim”. As regards further
remedies available, the Government submitted two contradictory set of
arguments.
-
In their main set of observations, the Government pointed out that
only an interim judgment had been issued in the case. It concerned
only the grounds for damages, which was a basis of the applicant's
claim. On the day the 2006 Act became operational this part of the
case was pending before the second-instance court and the proceedings
subsequently continued on appeal on points of law, where they are
currently pending. Once the Supreme Court decides on the appeal on
points of law, the case file will be sent to the first-instance court
to decide on the remaining part of the claim concerning the amount of
compensation. Subsequently, appeals to the second-instance court will
again be available to the parties.
- The
Government submitted that the case was, on 1 January 2007, therefore
far from being “finally resolved”. As a consequence, the
applicant should first avail himself of the acceleratory remedies in
the proceedings before the Supreme Court, namely supervisory appeal
and motion for a deadline, both of which were to be decided by the
president of the Supreme Court. Subsequently, in the forthcoming
first- and possibly also second-instance proceedings he will again
have the opportunity to use acceleratory remedies and ultimately,
once the proceedings are “finally resolved”, he will be
able to lodge a “just satisfaction claim” in respect of
the allegedly unreasonable length of the proceedings.
-
In their further observations, the Government argued that the second
condition for the lodging of the “just satisfaction claim”
had already been fulfilled on 18 May 2007. They submitted that
the case had become “finally resolved” on that date and
that the applicant should have lodged a “just satisfaction
claim” within nine months of the date. As regards the Supreme
Court's proceedings, they reiterated that acceleratory remedies were
available to the applicant.
- Finally,
the Government explained that the main idea of the 2006 Act was to
ensure compliance with the reasonable time requirement rather than
providing compensation. They also submitted that in Slovenia the key
problem in terms of excessive length was the proceedings at first
instance, while the second-instance proceedings and the proceedings
before the Supreme Court did not normally last an unreasonably long
time.
- The
applicant disputed the Government's arguments. He argued that there
were no means available to accelerate proceedings before the Supreme
Court. He further submitted that the delays in proceedings were a
systemic problem and that the 2006 Act made it impossible for the
parties to proceedings, which had lasted an unreasonably long time,
to obtain just satisfaction.
2. The Court's assessment
- The
Court reiterates that the rule of exhaustion of domestic remedies
referred to in Article 35 of the Convention obliges those seeking to
bring their case against the State before an international judicial
organ to use first the remedies provided by the national legal
system. The rule is based on the assumption, reflected in Article 13
of the Convention – with which it has close affinity –
that there is an effective remedy available in respect of the alleged
breach in the domestic system. (see, among many other authorities,
Aksoy v. Turkey, 18 December 1996, § 51, Reports of
Judgments and Decisions 1996-VI).
- The
Court reiterates that remedies available to a litigant at domestic
level for raising a complaint about the length of proceedings are
“effective” within the meaning of Article 13 of the
Convention if they “[prevent] the alleged violation or its
continuation, or [provide] adequate redress for any violation that
[has] already occurred” (see Kudła v. Poland [GC],
no. 30210/96, § 158, ECHR 2000-XI). Article 13
therefore offers an alternative: a remedy is “effective”
if it can be used either to expedite a decision by the courts dealing
with the case, or to provide the litigant with adequate redress for
delays that have already occurred (ibid., § 159). The same is
necessarily true of the concept of “effective” remedy
within the meaning of Article 35 § 1 (see Mifsud v. France
(dec.) [GC], no. 57220/00, ECHR 2002-VIII).
- However,
for countries where length of proceedings violations already exist, a
remedy designed to expedite proceedings – although desirable
for the future – may not be adequate to redress a situation in
which the proceedings have clearly already been excessively long (see
Scordino v. Italy (no. 1) [GC],
no. 36813/97, § 185, ECHR 2006 ...).
- As
regards Slovenia, the Court has taken the view that the mere
fact that an applicant had lodged his or her
application before the implementation of the 2006 Act did not
absolve him or her from exhausting the remedies available under the
2006 Act (see Korenjak v. Slovenia (dec.) no. 463/03, §§
63-71, 15 May 2007). The Court also found that the
aggregate of remedies provided by the 2006 Act
in cases of excessively long proceedings pending at first and second
instance was effective (see Korenjak,
cited above, § 62). The applicants were
therefore required to make use of the acceleratory remedies if the
proceedings were pending before the first- or second-instance court
(ibid.), and were also required to use the compensatory remedy
provided that, after exhausting the acceleratory remedies, they had
reasonably prompt access to it (see Zunič v.
cited above, §§ 43-55; see also Nezirovič
v. Slovenia (dec.), no. 16400/06, 25 November 2008).
- In
the present case, the Court observes that, on 1 January 2007, the day
the 2006 Act came into force, the applicant's case was pending before
the second-instance court in the part which had been decided by the
first-instance court, namely the part concerning the responsibility
for the damages. The second-instance court delivered its judgment on
9 May 2007. An appeal on points of law was lodged on
13 June 2007 and since then the proceedings have been pending
before the Supreme Court. As regards the possible outcome of the
latter proceedings, the Court notes that the Supreme Court could
theoretically reject the applicant's claim as a whole and that would
lead to a final resolution of the case; it could also remit the case
for-re-examination (see paragraph 26 above). These scenarios,
however, have not been mentioned by the Government, who have
submitted instead that after the Supreme Court renders a decision the
remaining part of the claim concerning the amount of damages to be
awarded to the applicant would have to be examined by the regular
court.
- The
Court notes that the Government argued that the applicant had
effective remedies at his disposal in respect of, first, the pending
Supreme Court proceedings, and, second, the previous and forthcoming
proceedings before the regular courts.
(a) Assessment of the remedies in respect
of the length of proceedings before the Supreme Court
- Since the 2006 Act entered into force, the Court has
undertaken an examination of the effectiveness, within the meaning of
Articles 13 and 35 § 1, of the new remedies available
in respect of the length of the first- and second-instance
proceedings (see paragraph 37 above). It found that the aggregate
of these remedies, namely a supervisory
appeal and a motion for a deadline together with a “claim for
just satisfaction”, was effective in
the sense that the remedies were in principle capable both of
preventing the continuation of the alleged violation and of providing
adequate redress for any violation that had already occurred (see
case-law cited in paragraph 37 above). The Court notes that this
conclusion was reached only in respect of the remedies available
in relation to the proceedings before the first- and second-instance
court and that the level of protection available in respect of the
proceeding before the Supreme Court is significantly lower.
- In
this connection, the Court observes that in proceedings before
the Supreme Court a claimant can use a supervisory appeal and a
motion for a deadline. However, unlike in proceedings before the
regular courts where a motion for a deadline constitutes, in
substance, an appeal to a higher instance, in the proceedings before
the Supreme Court both remedies are dealt with by the president of
that court – that is the court responsible for the conduct of
the proceeding to which the remedy relates. The Court further
observes that no compensation can be claimed in respect of the length
of Supreme Court proceedings.
-
The Court found in the Lukenda judgment that the request for
supervision, which, although then regulated only by the Judicature
Act, was a remedy of the same nature as the present supervisory
appeal, was ineffective. It noted that this was a
remedy in the framework of judicial administration and not within
court proceedings; that it had no binding effect on the court
concerned; and that since there was no right of appeal this remedy
could not have had any significant effect on expediting the
proceedings as a whole (see Lukenda, §§ 24, 61-64
and the case-law cited therein).
- The
Court finds that with some improvements brought in by the 2006 Act,
in particular as regards the criteria for assessing the
reasonableness of the length of proceedings and indication of certain
deadlines, the two acceleratory remedies available in Supreme Court
proceedings remain, in substance similar to the request for
supervision, which was found not to be an effective remedy in the
Lukenda judgment.
- The
Court moreover notes that, unlike the proceedings before the lower
courts, Supreme Court proceedings do not normally involve various
procedural steps; that they concern only the examination of questions
of law, and that no hearing is held in them. In absence of any
evidence submitted by the Government, the Court finds it difficult to
foresee what the practical effect of the mentioned remedies would be
on the speed with which Supreme Court proceedings are conducted.
- In
conclusion, having regard to the nature of the acceleratory remedies
provided in the 2006 Act in relation to proceedings before the
Supreme Court, and to the fact that they are not available in
combination with any compensatory remedy, the Court is not convinced
that they can provide effective redress in respect of the length of
Supreme Court proceedings and cannot require the applicant to use
them.
46. Notwithstanding the above conclusion, the Court notes that
the present application does not concern merely the Supreme Court
proceedings, but a situation which has developed over a long period
involving three levels of jurisdiction. Regardless of the effect the
above acceleratory remedies would have on the proceedings before the
Supreme Court, had the applicant used them, the Court does not
consider that they could have had any significant effect on the
length of the proceedings as a whole (see Holzinger v. Austria
(no. 1), no. 23459/94, § 22, ECHR 2001 I, and Bako
v. Slovakia (dec.), no. 60227/00, 15 March 2005).
(b) Assessment of the remaining remedies
available to the applicant
- The
Court observes that before the new legislation had taken effect, the
applicant's case had already been pending for more than seven years,
most of that time before the first-instance court. Since there were
no effective remedies available to the applicant during that period
(see Lukenda, cited above), the only way to remedy the
situation was to subsequently provide a compensatory remedy for the
damage suffered as a result of the delays (see Scordino, cited
above, § 185). In this connection, the Court notes that
since 1 January 2007 individuals have had the opportunity
to avail themselves of a compensatory remedy under the two conditions
set out in the 2006 Act (see paragraphs 22 and 23 above). The
Government asserted that the applicant in the present case had
successfully availed himself of the supervisory appeal, which the
applicant did not dispute. In view of the parties' submissions
concerning the second condition for lodging a “just
satisfaction claim”, the Court will proceed on the assumption
that the applicant successfully availed himself of the supervisory
appeal and by doing so the first condition was satisfied (ibid.). As
regards the second condition, that is the “final resolution of
the case”, the Court reiterates its previous finding in the
Zunič case, that:
“50. .... because of this condition,
those who believe that they have suffered a violation of their right
to a trial within a reasonable time may be obliged to wait even
further before being able to seek relief. Therefore, ..., the Court
finds it indispensable that the proceedings, which have already been
long, are finally resolved particularly promptly following the
exhaustion of the accelerative remedies. Indeed, it cannot be ruled
out that the question of a reasonably prompt access to a just
satisfaction claim will affect whether this remedy, alone or in
combination with the accelerative remedies, is effective in respect
of the delays which had already occurred (see Mifsud, cited
above, and, mutatis mutandis, Scordino, cited above,
§ 195).”
- As
regards the question of when, according to this second condition, the
compensatory remedy should be available to the applicant in the
present case, the Court must first address the Government's argument
that the applicant's case has already been “finally resolved”
on 18 May 2007. This argument conflicts with the initial
observations of the Government and was intended to support the
assertion that the applicant had the opportunity to lodge, within
nine months of 18 May 2007, a “just satisfaction
claim” in respect of the delays which had occurred beforehand
(see paragraphs 29-31 above). The Court notes that, if that were
true, it would mean that the “just satisfaction claim”
was available also in cases which had been “finally resolved”
only in the part concerning the basis of the claim, despite the fact
that the remaining part was still pending.
- In
this connection, the Court reiterates that it is incumbent on the
Government pleading non-exhaustion to demonstrate that a remedy they
wish to rely on was an effective one, available in theory and in
practice at the relevant time. The availability of any such remedy
must be sufficiently certain in law as well as in practice (see
Vernillo v. France, 20 February 1991, § 27,
Series A no. 198).
- It is true that the Court has been prepared to allow
for a certain level of flexibility in applying the requirements that
Governments need to fulfil when relying on the non-exhaustion rule in
respect of the domestic remedies adopted with a view to providing
redress for undue delays in domestic proceedings (see Scordino,
cited above, § 189-90; Zunič, cited above, §
37; Korenjak, cited above, § 73; Charzyński
v. Poland no. 15212/03 (dec.), §§ 40-41, ECHR 2005-V;
and Slaviček v. Croatia (dec.), no. 20862/02, ECHR
2002-VII). However, the Court considers that an interpretation by the
Government of the domestic legislation which does not have a
sufficiently clear provision as to the availability of the remedy in
a certain situation cannot be sufficient for it to conclude that that
remedy was actually available to the applicant. That is particularly
so if no domestic jurisprudence providing such a statutory
interpretation is available to the Court.
-
Having regard to the fact that there is no explicit provision in the
2006 Act addressing this issue; that the Government has not supplied
any domestic jurisprudence in support of their argument; and that
their submissions in this respect are conflicting (see paragraphs
29-31), the Court considers that the Government has failed to
demonstrate that a “just satisfaction claim” was
available to the applicant immediately after the basis of the claim
had been “finally resolved”.
- The Court will therefore continue on the assumption
that the applicant will be able to seek just satisfaction only after
his whole case is “finally resolved”. In view of the
principle set out in the Zunič case, the Court therefore
needs to examine whether the present application is premature, which
would be the case if the applicant could be said to have reasonably
prompt access to the “just satisfaction claim”.
- The
Court notes that in the Zunič case, where the proceedings
were pending before the first-instance court, the Court concluded
that, in view of the progress made in the proceedings, the applicant
should have soon been able to use the compensatory remedy. However,
unlike in that case, the applicant in the present case has already
been waiting for two years for the proceedings before the Supreme
Court to be concluded. These proceedings are currently still pending.
The applicant may also have to wait further for the proceedings
before the regular court, that is the first-instance and, if an
appeal is lodged, the second-instance court, to be conducted in
respect of the remaining part of the claim in order to be able to
lodge a “just satisfaction claim”. In these circumstances
the Court finds no reasonable grounds to assume that a “just
satisfaction claim” has been available to the applicant
reasonably promptly. The mere fact that the applicant would be able
to reuse acceleratory remedies in forthcoming proceedings, provided
that they continue before the regular courts, cannot override the
above considerations.
(c) Conclusion
- The
Court finds that the new legislation, namely the 2006 Act, does not
afford the applicant a legal remedy which could be considered
effective in respect of the delays that have allegedly occurred in
the impugned proceedings so far.
- More
generally, it finds first that the 2006 act does not provide for an
effective remedy in respect of alleged delays in Supreme Court
proceedings. Second, it notes that associating access to a “just
satisfaction claim” with the “final resolution” of
the case not only excludes Supreme Court proceedings but may in cases
such as the present one delay the availability of that remedy to the
extent that is not compatible with the Convention's requirements.
Moreover, this rule makes the application of the new remedies
complicated as well as uncertain. As a result, an assessment of the
issue of whether a particular applicant has prompt access to a “just
satisfaction claim” unavoidably involves a degree of
speculation and depends on the stage at which domestic proceedings
are pending at the time the case is considered by the Court.
- In
conclusion, as this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention and is not
inadmissible on any other grounds, it must be declared admissible.
B. Merits
- The
applicant argued that the length of the proceedings was unreasonable
in his case. The Government did not submit any arguments in respect
of the merits of the complaint under Article 6, despite being invited
to do so.
- The
Court observes that the period to be taken into consideration began
on 18 October 1999, the day the applicant instituted proceedings with
the Celje District Court, and has not yet ended. The relevant period
has therefore lasted over nine years and seven months at three levels
of jurisdiction.
- 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
Court would emphasise, as it did in number of its previous rulings
concerning the implementation of the 2006 Act, that the subsidiary
principle is one of the most important principles for the functioning
of the Convention system. Having examined all the material submitted
to it, and having regard to its case-law on the subject, it considers
that in the instant case the length of the proceedings, in particular
before the first-instance court, was excessive and failed to meet the
“reasonable time” requirement. There has accordingly been
a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- In
substance, the applicant further complained that the remedies
available for excessively lengthy court 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
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Government submitted that under the 2006 Act the applicant had at his
disposal various effective legal remedies in respect of the alleged
breach of the “reasonable time” requirement.
- The
applicant disputed that argument.
- The
Court reiterates that the standards of Article 13 require a party to
the Convention to guarantee a domestic remedy allowing the competent
domestic authority to address the substance of the relevant
Convention complaint and to award appropriate relief, although
Contracting States are afforded some discretion as to the manner in
which they conform to their obligations under this provision (see
Chahal v. the United Kingdom, judgment of 15 November
1996, Reports of Judgments and Decisions 1996 V, §
145). The Court again observes that the rule of exhaustion of
domestic remedies referred to in Article 35 of the Convention is
based on the assumption, reflected in Article 13 of the Convention –
with which it has close affinity – that there is an effective
remedy available in respect of the alleged breach in the domestic
system (see paragraph 34 above).
- In
the present case the Government have failed to show that the 2006 Act
offered the applicant an effective remedy (see paragraphs 34 to 55
above). As regards the remedies available prior to the implementation
of the 2006 Act, the Government have also failed to submit anything
that would lead the Court to a different conclusion from the one
reached in earlier cases in which these remedies were considered
ineffective (see Lukenda, cited above, §§ 84 to 88)
- 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.
III. 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 EUR 8,000 in respect of non-pecuniary damage.
- The
Government did not comment on the claim.
- The
Court considers that the applicant must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards him EUR 4,800 under
that head.
B. Costs and expenses
- The
applicant also claimed SIT 147,132, which is approximately EUR 600,
for the costs and expenses incurred before the Court.
- The
Government did not comment on the claim.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, the applicant
submitted his claim for costs and expenses in the application form
and this claim therefore related only to the preparation of the
application. The Government, although having an opportunity to reply,
has not disputed the claim and the Court considers it reasonable to
award the sum of EUR 600 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, the following
amounts:
(i) EUR
4,800 (four thousand eight hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
600 (six hundred euros), plus any tax that may be chargeable to the
applicant, in respect of costs and expenses;
(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 21 July 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
