PIPUS v. SLOVENIA - 24141/06 - Committee Judgment [2014] ECHR 1100 (16 October 2014)

In the case of Pipuš v. Slovenia,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

          Angelika Nußberger, President,
          Boštjan M. Zupančič,
          Vincent A. de Gaetano, judges,
and Stephen Phillips, Deputy Section Registrar,

Having deliberated in private on 23 September 2014,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 24141/06) 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 Andrej Pipuš (“the applicant”), on 25 May 2006.

2. The applicant was represented by Ms B Senčar-Leljak, a lawyer practising in Maribor. The Slovenian Government (“the Government”) were represented by their Agent.

3. On 14 February 2012 the application was declared inadmissible as premature.

4. After it had been established that the Court had been informed of the fact that the domestic proceedings had terminated before declaring the application inadmissible, the Court on 13 November 2012 decided to reopen the case.

5. On 17 December 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1954 and lives in Maribor.

A. Civil proceedings

On 9 May 1994 the applicant signed a lease contract with D.V., V.V. and B.V.

On 9 December 1994 the applicant lodged a civil claim against the tenants, claiming that they had breached the provisions of the lease contract.

On 4 March 2004 the Maribor Local Court dismissed the applicant’s claim. The applicant appealed.

On 6 June 2006 the Maribor Higher Court rejected the applicant’s appeal.

The applicant subsequently lodged a constitutional appeal with the Constitutional Court, which was rejected on 13 December 2007.

B. Proceedings concerning a claim for non-pecuniary damage on account of the alleged delays in the above criminal proceedings

On 21 September 2009 the respondent Government were given notice of the application. Subsequently, on 21 December 2009, the Government submitted that a settlement proposal had been offered to the applicant under section 25 of the Act on the Protection of the Right to a Trial without undue Delay (“the 2006 Act”). However, the domestic settlement procedure was not successful.

On 30 December 2009 the applicant, relying on 2006 Act, lodged a claim with the Celje Local Court seeking compensation in the amount of EUR 4,700 for non-pecuniary damage incurred as a result of the length of the civil proceedings.

On 8 November 2010 the court gave a judgment. The court found that the applicant’s right to the trial within a reasonable time had been breached and that the State was to pay EUR 4,320 to the applicant. The court dismissed the remainder of the claim. The applicant appealed.

On 29 June 2011 the Celje Higher Court modified the first-instance judgment as far as the statutory default interests and the costs of the proceedings were concerned. It dismissed the remainder of the applicant’s appeal.

On 17 October 2011 the applicant lodged a constitutional appeal. In the constitutional appeal the applicant did not address the issue that the 2006 Act was ineffective due to fact the ceiling for compensation for non-pecuniary damage was set at EUR 5,000.

On 30 November 2011 the Constitutional Court rejected the applicant’s constitutional appeal.

II. RELEVANT DOMESTIC LAW AND PRACTICE

7. For relevant domestic law see Grzinčič v. Slovenia, no. 26867/02, 3 May 2007.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

8. 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...”

A. Admissibility

9. Having regard to the case-law on the subject-matter, the Court notes that the applicant’s victim status will depend on whether the redress afforded to him at the domestic level was adequate and sufficient having regard to Article 41 of the Convention (see, among others, Jakupović v. Croatia, no. 12419/04, § 16, 31 July 2007; Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 178-213, ECHR 2006-V, and Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006-V).

10. The Court notes that in the domestic proceedings the applicant was awarded 4,320 euros (EUR). Having regard to the length of the civil proceedings, the aforementioned sum represented less than 40% of what the Court would be likely to award in the circumstances of the case in accordance with its practice. The redress obtained by the applicant at the domestic level was thus insufficient (see Cocchiarella, cited above, §§ 106-107; see also Madžarević v. Slovenia, no. 38975/05, §§ 36-39, 15 May 2012). The applicant can accordingly still claim to be a “victim” of a breach of his right to a hearing within a reasonable time.

11. The Court further notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor it is inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

12. The period to be taken into consideration began on 9 December 1994 and ended on 13 December 2008. The proceedings thus lasted thirteen years and seven months at three levels of jurisdiction.

13. 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).

14. Having regard to the circumstances of the case and its case-law on the subject (see, Tomažič v. Slovenia, no. 38350/02, §§ 54-61, 13 December 2007, Rumpf v. Germany, no. 46344/06, §§ 41-46, 2 September 2010 and Jazbec v. Slovenia, no. 31489/02, §§ 64-69, 14 December 2006) the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

15. There has accordingly been a breach of Article 6 § 1.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

16. The applicant further complained that the remedies available for excessive length of proceedings in Slovenia were ineffective, since the ceiling for compensation for non-pecuniary damage is set at EUR 5,000. Article 13 of the Convention reads as follows:

“Everyone whose rights and freedoms as set forth in [this] 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.”

17. The Government argued non-exhaustion by referring to the fact that the applicant only claimed the amount of EUR 4,700 in the domestic proceedings and further, that also in his constitutional appeal he had not challenged the statutory ceiling for compensation for non-pecuniary damage as provided for in the 2006 Act.

18. 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 the reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI).

19. According to the Court’s case-law concerning the burden of proof in respect of the effectiveness of domestic remedies it falls to the Government to satisfy the Court that the remedy in question was an effective one. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy in question was for some reason inadequate and ineffective in the particular circumstances of the case (see, Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports of Judgments and Decisions 1996-IV).

20. The Court recalls in this respect that it has already found in the case of Grzinčič v. Slovenia (no. 26867/02, cited above), followed by the decision in Korenjak v. Slovenia ((dec.) no. 463/03, 15 May 2007), basing its conclusions on an assessment of the legislative provisions of the 2006 Act, that the aggregate of remedies provided for in cases involving excessively long proceedings pending at first and second instance was effective in the sense that the remedies were, in principle, capable of both preventing the continuation of the alleged violation of the right to a hearing without undue delay, and of providing adequate redress for any violation that has already occurred (Grzinčič, cited above, § 98).

21. Considering that in the domestic proceedings the applicant claimed less compensation than the maximum amount provided for by the 2006 Act and also did not challenged the statutory ceiling of EUR 5,000 in his constitutional appeal, the Court agrees with the Government that he has therefore failed to demonstrate that the remedy in question could not have been effective in his case (see, mutatis mutandis, Daddi v. Italy (dec.), 15476/09, 2 June 2009).

22. Accordingly, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

23. 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

24. The applicant claimed further EUR 5,680 (EUR) in respect of non-pecuniary damage.

25. The Government contested the claim, referring in particular to the fact that in the domestic proceedings the applicant only claimed EUR 4,700.

26. The Court reiterates that where an applicant has resorted to an available domestic remedy and thereby obtained a finding of a violation and has been awarded compensation, but can nevertheless still claim to be a “victim”, the amount to be awarded under Article 41 may be less than the amounts the Court has awarded in similar cases. In that case an applicant, with regard to the period considered by the domestic authority, must be awarded the difference between the amount obtained in the domestic proceedings and an amount that would not have been regarded as manifestly unreasonable if it had been awarded by the competent domestic authority. (see Cocchiarella, cited above, §§ 139-141; Jakupović, cited above, §§ 33-35, and Solárová and Others v. Slovakia, no. 77690/01, § 62, 5 December 2006).

27. The Court notes that the applicant was awarded EUR 4,320 by the domestic authorities. It considers that in awarding further damages it cannot go beyond the amount claimed by the applicant in the domestic proceeding. Having regard to the circumstances of the present case and in view of its findings above it therefore awards the applicant further EUR 380 in respect of non-pecuniary damage.

B. Costs and expenses

28. The applicant also claimed EUR 2,650.50 for the costs and expenses incurred before the Court.

29. The Government contested the claim.

30. 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 Court notes that the representative’s fees exceeded those foreseen under the domestic scale. The Court notes that the applicant’s representative charged also fees foreseen in case of a hearing before the Court. It further finds the amount unreasonable also due to the fact that the representative was allowed to use the Slovenian language before the Court. The Court therefore considers it reasonable to award the applicant the sum of EUR 1,000 under this head.

C. Default interest

31. 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, UNANIMOUSLY,

1. Declares the complaint concerning Article 6 § 1 admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months, the following amounts:

(i) EUR 380 (three hundred eighty euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,000 (thousand 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 the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 16 October 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Angelika Nußberger
Deputy Registrar President

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