SOTOŠEK v. SLOVENIA - 22799/09 - Committee Judgment [2014] ECHR 359 (03 April 2014)

In the case of Sotošek v. Slovenia,

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

          Angelika Nußberger, President,
          Boštjan M. Zupančič,
          Helena Jäderblom, judges,
and Stephen Phillips, Deputy Section Registrar,

Having deliberated in private on 11 March 2014,

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

PROCEDURE

1. The case originated in an application (no. 22799/09) 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 Janez Stojan Sotošek (“the applicant”), on 16 April 2009.

2. The Slovenian Government (“the Government”) were represented by their Agent.

3. On 26 September 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1939 and lives in Ljubljana.

5. On 1 December 1993 the applicant instituted proceedings before the Ljubljana Labour and Social Court against his employer, company K. and four further defendants.

6. On 28 June 1994 the Convention came into force in respect of Slovenia.

7. On 4 August 1994 the first defendant, company K. replied to the claim.

8. On 28 March 2003 the applicant was requested to supplement or amend his claim.

9. On 14 April 2003 the applicant lodged his submissions by which he withdrew the action against the second, third, fourth and fifth defendant and proposed to determine another court with subject matter jurisdiction.

10. On 15 July 2003 the court stayed the proceedings against the second, third, fourth and fifth defendant.

11. On 23 September 2003 the Supreme Court issued a decision by which it dismissed the applicant’s request to determine another court with subject matter jurisdiction.

12. On 23 March 2004 the court adjourned the first main hearing at the request of both parties.

13. On 31 May 2004 the settlement hearing and the first main hearing were held.

14. On 24 June 2004 the second main hearing was held.

15. On 15 February 2005 the scheduled hearing was postponed at the applicant’s request.

16. Between 14 April 2005 and 14 September 2006 further four hearings were held.

17. On 21 September 2006 the Labour and Social Court partially upheld the applicant’s claim and dismissed the remainder of the claim. Both parties appealed.

18. On 18 January 2007 the Higher Labour and Social Court dismissed the appeals and issued a decision that an appeal on points of law would not be allowed in the present case. The applicant appealed.

19. On 24 April 2007 the Supreme Court dismissed the applicant’s appeal against the decision that appeal on points of law was not allowed. The applicant lodged a constitutional appeal.

20. On 17 October 2008 the Constitutional Court dismissed the applicant’s constitutional appeal.

II. RELEVANT DOMESTIC LAW

21. For relevant domestic law, see the judgments Robert Lesjak v. Slovenia (no. 33946/03, 21 July 2009); Tomažič v. Slovenia (no. 38350/02, 13 December 2007) and Novak v. Slovenia, no.5420/07, § 14, 25 April 2013.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND 13 OF THE CONVENTION

22. 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...”

23. 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 [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.”

A. Admissibility

24. The Government argued non-exhaustion, claiming that since the proceedings were finally resolved within three months after 1 January 2007 amended section 25 of the Act on the Protection of the Right to a Trial without undue Delay (“the 2006 Act”) was now also applicable to the present case affording the applicant effective remedies. As to the fact that the proceedings afterwards continued before the Supreme and the Constitutional Court, they maintained that the proceedings before the Supreme Court only related to the applicant’s procedural rights, namely whether the applicant’s appeal on points of law which was not allowed on the basis of the value of the dispute could be allowed nevertheless. As to the proceedings before the Constitutional Court they on the other hand submitted that these only lasted fifteen months which was not considered excessive and hence this period should not be taken into account.

25. The Court observes that the transitional provision of the 2006 Act, namely section 25, as amended on 9 June 2012, provides for the procedure to be followed in respect of applications where the violation of the “reasonable time” requirement has already ceased to exist before 31 March 2007. Notwithstanding the fact that the settlement proposal was made to the applicant by reference to section 25, as the proceedings to which the applicant was a party continued before the Supreme and the Constitutional Court after 31 March 2007, the above provision did not give a remedy to the applicant’s case (see, mutatis mutandis, Robert Lesjak v. Slovenia, no. 33946/03, §§ 47-53, 21 July 2009 and Tomažič v. Slovenia, no. 38350/02, 13 December 2007, §§ 41-45). The Court finds that the Government have not submitted any convincing arguments which would require the Court to distinguish the present case from the above mentioned cases and not take into account the proceedings before the Supreme and the Constitutional Court. It recalls in this respect that according to its established case-law, any proceedings that could influence the outcome of proceedings before the lower courts fall within the scope of Article 6 (see, for example, Tričković v. Slovenia, no. 39914/98, §§ 27-29 and 36-41, 12 June 2001 Šubinski v. Slovenia, no. 19611/04, § 69, 18 January 2007).

26. In any case however, the Court would also not be able to follow the argument of the Government suggesting that the applicant, who had been offered by the settlement proposal the maximum amount of EUR 5,000 provided for in the 2006 Act, should have brought an action under the second paragraph of section 25 before the competent national court, which would also be bound to decide on the applicant’s claim within the 2006 Act threshold for awarding the non-pecuniary damages which equals the same maximum amount of 5,000 EUR.

27. This part of the application is thus not inadmissible for non-exhaustion. The Court further notes that it is also not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Article 6

28. The period to be taken into consideration began on 28 June 1994, when the Convention entered into force with respect to Slovenia and ended on 17 October 2008. The proceedings thus lasted fourteen years and four months at four levels of jurisdiction.

29. 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 further reiterates that special diligence is necessary in labour disputes (Ruotolo v. Italy, judgment of 27 February 1992, Series A no. 230-D, p. 39, § 17; Bauer v. Slovenia, no. 75402/01, § 19, 9 March 2006).

30. In assessing the reasonableness of the time that elapsed after the Convention came into force with respect to Slovenia, account must be taken of the state of proceedings at the time. The Court notes in this connection that at the relevant time the proceedings had been pending for seven months.

31. Having regard to the circumstances of the case and its case-law on the subject (see, Jazbec v. Slovenia, no. 31489/02, §§ 64-69, 14 December 2006; Fortunat v. Slovenia, no. 42977/04, §§ 42-47, 18 April 2013); and in the absence of any arguments brought forward by the Government in respect of the above mentioned criteria, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

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 above (see, §§ 24-27) 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 his right to have his case heard within a reasonable time, as set forth in Article 6 § 1.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

32. Lastly, the applicant complained under Articles 6, 13 and 14 of the Convention about the alleged unfairness and arbitrariness of the domestic proceedings, which were according to him politically motivated and against all principles of the rule of law.

33. Having examined the above complaints, the Court finds, in the light of all the materials in its possession, and in so far as the matters complained of are within its competence, that they do not disclose any appearance of a violation of the Articles relied on by the applicant. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

34. 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

35. The applicant claimed 4,020 euros (EUR) in respect of pecuniary and EUR 6,500 in respect of non-pecuniary damage.

36. The Government contested these claims.

37. 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 6,500 in respect of non-pecuniary damage.

B. Costs and expenses

38. The applicant also claimed EUR 681 for the costs and expenses incurred before the domestic courts.

39. The Government contested the claim.

40. Regard being had to the documents in its possession and to its case-law, the Court rejects the claim for costs and expenses in the domestic proceedings.

C. Default interest

41. 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 the length of proceedings and the effectiveness of remedies in this respect admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 and Article 13 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months EUR 6,500 (six thousand five hundred 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.

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

Stephen Phillips Angelika Nußberger
Deputy Registrar President

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