FIFTH SECTION
CASE OF
MEŽNARIČ v. SLOVENIA
(Application no.
41416/06)
JUDGMENT
STRASBOURG
18 April 2013
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 Mežnarič v. Slovenia,
The European Court of Human Rights (Fifth Section), sitting as
a Chamber composed of:
Mark Villiger, President,
Angelika Nußberger,
Boštjan M. Zupančič,
Ganna Yudkivska,
André Potocki,
Paul Lemmens,
Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 19 March 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an
application (no. 41416/06) 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 Marijan Mežnarič (“the
applicant”), on 21 September 2006.
The Slovenian Government (“the Government”) were
represented by their Agent.
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 that there
was no effective domestic remedy in respect of the excessive length of the
proceedings (Article 13 of the Convention).
On 14 March 2012 the
application was communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1950 and lives in Šmarje
pri Jelšah.
On 13 June 1995 the Žiri Municipality instituted enforcement
proceedings against the company KODA SPAAR d.o.o. before the Kranj Basic Court.
On 28 June 1995 the writ of execution was issued.
The company lodged an objection.
On 5 September 1995 the first-instance court
issued a decision annulling the writ of execution.
On 6 November 1995 the case was referred to the
Kranj District Court and was to be decided in the framework of contentious
proceedings.
On 21 November 1999 the court issued a decision that
it had no jurisdiction and the case was referred to Škofja Loka Local Court.
On 25 November 1999 the Škofja Loka Local Court initiated a jurisdictional dispute.
On 30 August 2000 the Ljubljana Higher Court assigned
the case to the Kranj District Court.
On 17 October 2000 the first-instance court
received an extract from the Register of Companies stating that the company KODA
SPAAR d.o.o. had been struck out from the Register pursuant to Article 580 § 5
and 6 of the Companies Act.
On 8 January 2001 the creditor requested the
continuation of the proceedings against the applicant, since he had been the
founder and owner of the company.
On 27 August 2001 the first-instance court
issued a decision on continuation of proceedings against the applicant.
On 10 September 2001 the applicant lodged an
appeal and a request for an exemption from court fees.
On 24 October 2001 the Ljubljana Higher Court
rejected the appeal.
On 20 December 2001 the applicant lodged a
request for protection of legality, which was rejected.
On 27 August 2002 the Kranj District Court
issued a decision staying the proceeding pending the decision of the Constitutional Court concerning the suspension of implementation of a chapter of the
Financial Operations of Companies Act.
On 17 January 2003 the proceedings resumed.
On 17 December 2003 a hearing concerning the
possibility of a settlement was held. The applicant lodged a request for legal
aid, an exemption from court fees and a counterclaim seeking compensation for
damages.
On 11 February 2004 a hearing was held and the first-instance
court rendered a judgment annulling the writ of execution of 28 June 1995. An
appeal was lodged.
On 16 February 2005 the Ljubljana Higher Court
remitted the case for re-examination.
On 31 August 2005 a hearing was held and the first-instance
court issued a judgment upholding the writ of execution. The applicant appealed.
On 21 June 2006 the Ljubljana Higher Court
upheld the appeal and annulled the writ of execution.
On 4 September 2006 the applicant lodged a
request claiming reimbursement of legal costs. His request was rejected on 10
October 2006.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Act on the Protection
of the Right to a Trial without Undue Delay
The Act on the Protection of the Right to a
Trial without Undue Delay (Zakon o varstvu pravice do sojenja brez
nepotrebnega odlašanja, Official Journal, No. 49/2006 - “the 2006 Act”) became
operational on 1 January 2007.
Section 25 lays down the following transitional rules in
relation to applications already pending before the Court:
Section 25 - Just satisfaction for damage sustained prior
to implementation of this Act
“(1) In cases where a violation of the right to a
trial without undue delay has already ceased and the party had filed a claim
for just satisfaction with the international court before the date of
implementation of this Act, the State Attorney’s Office shall offer the party a
settlement on the amount of just satisfaction within four months of the date of
receipt of the case referred by the international court for the settlement
procedure. The party shall submit a settlement proposal to the State Attorney’s
Office within two months of the date of receipt of the proposal of the State
Attorney’s Office. The State Attorney’s Office shall decide on the proposal as
soon as possible and within four months at the latest...
(2) If the proposal for settlement referred to in
paragraph 1 of this section is not acceded to or the State Attorney’s Office
and the party fail to negotiate an agreement within four months of the date on
which the party filed its proposal, the party may bring an action before the
court with jurisdiction under this Act. The party may bring an action within
six months of receipt of the State Attorney’s Office reply that the party’s
proposal referred to in the previous paragraph was not acceded to, or after the
expiry of the period fixed in the previous paragraph for the State Attorney’s
Office to decide to proceed with settlement. Irrespective of the type or amount
of the claim, the provisions of the Civil Procedure Act concerning small claims
shall apply in proceedings before a court.”
B. The Companies Act
The relevant provision of the Companies Act (Zakon
o gospodarskih družbah, Official Gazette no. 30/93, 29/94, 20/98, 84/98, 6/99 and
45/01) as in force at the relevant time reads as follows:
Article 580 § 5 and 6
“...
(5) The existing companies and other organisational
forms of undertakings that fail to bring their operation in line with this Act
within the deadlines set in the first, second and fourth paragraph of this
Article shall be liquidated and struck out from the Register of Companies; the
liquidation will be conducted by the courts ex officio.
(6) Notwithstanding the provision of the above
paragraph, privately owned companies with share capital that fail to bring
their operation in line with this Act within the deadlines set in the first,
second and fourth paragraph of this Article shall be held liable for the obligations
towards the creditors in the same way as shareholders of unlimited companies or
as company owners.
...”
C. The Constitutional Court’s decision (no. U-I-135/00,
9 October 2002 § 61)
The Financial Operations of Companies Act
provided that companies which had been inactive for a certain period of time,
had not had any assets or had not aligned their operations with the then new
legislation were to be struck out from the Register of Companies, and thus
their shareholders would become personally liable for any outstanding debts of the
company. The regulation was challenged before the Constitutional Court which, inter
alia, decided that the former shareholders who assumed unlimited joint liability
for the companies’ obligations were to be considered as universal successors to
the dissolved companies.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF
THE CONVENTION
The applicant complained that the length of the
proceedings had been incompatible with the “reasonable time” requirement laid
down in 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 excessively long 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 argued that the time to be taken
into in consideration in the present case should be only as regards the part of
the proceedings conducted against the applicant and not the company. In the
Government’s view the continuation of the proceedings against an owner of a
company constitutes “singular legal succession”. Taking into account the part
of the proceedings against the company for the examination of the complaint
brought by the applicant would therefore be in contravention of Article 34 of
the Convention. According to the Government the duration of the part of the proceedings
conducted against the applicant and not the company was not excessive (five
years at two levels, see paragraph 15 et seq. above). The Government proposed that
the Court should reject the application as manifestly ill-founded.
The Court notes that the enforcement proceedings
against the company were suspended on the ground that it had been ex-officio
struck out from the Register of Companies pursuant to Article 580 § 5 and 6 of
the Companies Act, as in force at the material time, for having failed to align
its operation with the then new legislation. As regards such companies, their
former shareholders became personally liable for their debts and were,
according to the Constitutional Court’s decision (cited above) considered as
universal successors of the struck-out companies. Thus, in view of the fact
that all assets, rights and obligations of the company were transferred to the
applicant who accordingly replaced the company in the domestic proceedings, the
Court is unable to accept the Government’s argument that the applicant cannot claim
the status of victim for the part of the proceedings which lasted until 27 August
2001.
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 (see Ribič v. Slovenia, no. 20965/03, §§ 37-42, 19 October 2010). It must therefore be declared
admissible.
B. Merits
1. Article 6
The period to be taken into consideration began
on 13 June 1995, when the enforcement proceedings were instituted. The
proceedings continued as contentious proceedings (see paragraph 9 above) and
ended on 10 October 2006, when the decision on legal costs was issued. The
proceedings thus lasted eleven years and four months. The case was considered at
first instance in enforcement proceedings (see paragraphs 7-8 above) and then
in contentious proceedings twice at first instance and twice at second instance
(see paragraphs 22-25 above). The proceedings thus lasted eleven years and four
months.
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).
In this connection the Court observes that the
longest period of inactivity attributable to the State was four years (see
paragraphs 9 and 10 above). The applicant on the other hand did not substantially
contribute to the delays.
Having examined all the material submitted to
it, and having regard to its case-law on the subject (see, Deželak v.
Slovenia, 1438/02, §§ 23-26, 6 April 2006; Soleša v. Slovenia,
no. 21464/02, §§ 17-19, 13 April 2006; Simončič v. Slovenia,
no. 7351/04, §§ 23-26, 18 January 2011), 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 for a case to be heard within a reasonable time
(see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI).
The Court recalls the case of Ribič v.
Slovenia (cited above, §§ 37-42)
and notes that the Government have not submitted any arguments which
would require it to distinguish the present application from the aforementioned
case. The Court therefore 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 pecuniary and EUR 10,000 in respect of non-pecuniary damage.
The Government contested these claims.
The Court does not discern any causal link
between the violation found and the pecuniary damage alleged; it therefore
rejects this claim. On the other hand, it awards the applicant EUR 8,000 in
respect of non-pecuniary damage.
B. Costs and expenses
The applicant made no claim as regards the costs
and expenses incurred before the Court. The Court therefore makes no award
under this head.
C. Default interest
The Court 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
1. Declares by a majority the application
admissible;
2. Holds by six votes to one that there has
been a violation of Article 6 § 1 and Article 13 of the Convention;
3. Holds by six votes to one
(a) that the respondent State is to pay the applicant, within three months EUR 8,000 (eight thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
4. Dismisses unanimously the remainder of the
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 18 April 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Mark Villiger
Registrar President
In accordance with Article 45 § 2 of the Convention and
Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Pejchal is
annexed to this judgment.
M.V.
C.W.
DISSENTING OPINION OF JUDGE PEJCHAL
I disagree with the majority’s finding of a
violation of the applicant’s right to a fair trial within “a reasonable time”
for the reasons given already in my separate opinion in the case Podbelšek
Bračič v. Slovenia, no. 42224/04.
