FIFTH SECTION
CASE OF
PLUT AND BIČANIČ-PLUT v. SLOVENIA
(Application no.
7709/06)
JUDGMENT
STRASBOURG
18 July 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 Plut and Bičanič-Plut v. Slovenia,
The European Court of Human Rights (Fifth Section), sitting as
a Chamber composed of:
Mark Villiger, President,
Angelika Nußberger,
Boštjan M. Zupančič,
Ann Power-Forde,
André Potocki,
Paul Lemmens,
Helena Jäderblom, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 25 June 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an
application (no. 7709/06) 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 two
Slovenian nationals, Ms Boža Plut and Mr Aleksander Bičanič Plut
(“the applicants”), on 8 February 2006.
The applicants were
represented by Ms M. Verstovšek, a lawyer practising in Celje. The Slovenian
Government (“the Government”) were represented by their Agent.
On 27 April 2012 the application was communicated
to the Government.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
The applicants are mother and son. They were born
in 1959 and 1994, respectively, and live in Primskovo.
On 27 October 1998 the mother (hereinafter
referred to as “the applicant”) instituted a labour dispute against her former
employer before the Ljubljana Labour and Social Court seeking the payment of
wages.
Between 19 June 2002 and 12 July 2002 the court
held two hearings. A hearing scheduled for 18 October 2002 was postponed on the
request of the applicant. She requested a postponement for a period of six
months.
On 30 July 2004 the applicant received a notice
for a hearing scheduled on 14 September 2004.
On 14 September 2004 the court held a hearing and
issued a decision on suspension of proceedings, because both parties failed to
attend. The court found that in the absence of a request for a hearing or any
other procedural step within four months the proceedings would be terminated.
On 25 October 2005 the court held a hearing. It
appears that there was either a request for a hearing or a submission lodged so
the proceedings could continue.
On 28 March 2006 the court held a hearing and
delivered a judgment, rejecting the applicant’s request. She appealed.
On 21 September 2006 the Higher Labour and Social Court rejected the appeal. She lodged an appeal on points of law.
On 9 January 2007 the Supreme Court rejected the
appeal.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF
THE CONVENTION
The applicants 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 ...”
The applicants 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
As regards the victim status of the son, the
Court notes that the domestic proceedings concerned a labour dispute to which
the son was not a party. Having regard to the Court’s case law on the subject
(see, for example, Bitenc v. Slovenia, (dec.), no. 32963/02, 18 March
2008, with other references) and the circumstances of the present case, the son
cannot be considered as a victim of the alleged violations. The part of the
application concerning the son is therefore incompatible ratione personae with
the provisions of the Convention and it must be rejected in accordance with
Articles 34 and 35 §§ 3 (a) and 4 of the Convention.
As regards to the applicant’s complaints about
the undue length of proceedings and lack of an effective remedy, the Court
notes that they are not manifestly ill-founded within the meaning of Article 35
§ 3 (a) of the Convention. Nor they are inadmissible on any other grounds (see Maksimovič
v. Slovenia, no. 28662/05, 22 June 2010, §§ 21-24). They must therefore be
declared admissible.
B. Merits
1. Article 6 § 1
The period to be taken into consideration began
on 27 October 1998, the day the applicant instituted proceedings before the Ljubljana
Labour and Social Court, and ended on 9 January 2007, the date of the Supreme
Court’s judgment. It therefore lasted eight years and two 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).
Turning to the circumstances of the present
case, the Court notes that it took the first-instance court three years and eight
months to schedule the first hearing (see paragraphs 5 and 6 above). Such a
delay on the part of the domestic authorities in a labour dispute, where
additional diligence is required, cannot be considered as reasonable.
The Court further notes that the applicant
requested a postponement of a hearing for a period of six months (see paragraph
6 above). In addition, the proceedings were stayed due to the failure of the
parties to appear at hearings (see paragraph 8 above). The total delay
attributable to the applicant therefore amounts to approximately ten months.
Having examined all the material submitted to
it, and having regard to its case-law on the subject (see Šramel v. Slovenia, no. 39154/02, §§ 21-23, 13 December 2007; Palamarchuk v. Ukraine, no. 28585/04, §§ 45-47, 15 July 2010; and Marič v. Slovenia, no.
35489/02, §§ 21-23, 21 December 2006), the Court 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.
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). In view of its findings
in the case Maksimovič v. Slovenia (cited above, §§ 29-30), the
Court finds 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 her right to have her case heard within
a reasonable time, as set forth in Article 6 § 1.
II. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, the applicant complained that her rights
under Article 1 of Protocol No. 1 of the Convention were breached, since she
was deprived of her wages. She further complained under Article 14 of the
Convention that she was discriminated against by the State. In this connection
she complains that as a consequence for not receiving the wages she claims to
be entitled to, she was not able to pay for the kindergarten, which caused
irreparable damage to her child.
The Court notes that the applicant failed to
lodge a constitutional appeal. These complaints should therefore be rejected
under Article 35 § 1 and 4 of the Convention for non-exhaustion of domestic
remedies.
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 10,000 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 her
EUR 2,300 under that head.
B. Costs and expenses
The applicant also claimed EUR 500 for the costs
and expenses incurred before the Court.
The Government contested the claim.
Regard being had to the documents in its possession
and to its case-law, the Court considers that the sum claimed should be awarded
in full.
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 unanimously the complaint
concerning the excessive length of the proceedings and lack of an effective
remedy admissible and the remainder of the application inadmissible;
2. Holds by six votes to one that there has
been a violation of Articles 6 § 1 and 13 of the Convention;
3. Holds by six votes to one
(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 2,300 (two thousand two hundred and forty
euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 500 (five 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;
4. Dismisses unanimously the remainder of the
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 18 July 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 Power-Forde is
annexed to this judgment.
M.V.
C.W.
DISSENTING OPINION OF JUDGE POWER-FORDE
I cannot agree with the majority that there was a violation of
Articles 6 in this case. In my dissenting opinion in Barišič v.
Slovenia, I indicated that I do not agree with this Court’s “broad brush”
approach to length of proceedings claims and I set out the reasons for my
position in this regard. The same reasoning applies with equal force to the
instant case.
Although the proceedings commenced in October 1998 and two
hearings were held in June and July 2002, the draft records no details as to
when the defendant company filed its defence or what, if any, pre-trial steps
were taken. Furthermore, the applicant herself requested a postponement of a
trial hearing for a period of six months in October 2002. When the matter was
relisted once again the Court suspended the proceedings because neither of the
parties appeared. Hearings were held in 2005 and 2006 and the applicant’s
request was ultimately rejected. Within six months, the applicant’s appeal had
been heard and that, too, was rejected. Within a further four months the
Supreme Court heard and rejected her second appeal.
For the reasons set out in my dissenting opinion in
Barišič v. Slovenia and absent a detailed consideration of what, in fact,
transpired at national level and in the light of such facts as can be ascertained
from the judgment, I cannot agree that there has been any violation of the
Convention of the part of the Respondent State.
