CASE OF D.P. v. SLOVENIA
(Application no. 49994/14)
23 July 2015
This judgment is final but it may be subject to editorial revision.
In the case of D.P. v. Slovenia,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Boštjan M. Zupančič,
Vincent A. De Gaetano, judges,
and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 30 June 2015,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 49994/14) 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, Ms D.P. (“the applicant”), on 3 July 2014. The President of the Section acceded to the applicant’s request not to have her name disclosed (Rule 47 § 4 of the Rules of Court).
2. The Slovenian Government (“the Government”) were represented by their Agent, Mrs T. Mihelič Žitko, State Attorney.
3. On 3 September 2014 the application was communicated to the Government.
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1970 and lives in Ljubljana.
A. Contentious proceedings before the Kranj District Court (I P 509/2004)
5. On 29 July 2003 the applicant instituted proceedings before the Ljubljana District Court against the State claiming non-pecuniary damages inflicted on her by involuntary confinements in the Ljubljana Psychiatric Hospital in December 1999 and between July and September 2000.
6. At the first hearing held on 3 May 2005 the applicant lodged a request to delegate territorial jurisdiction to another court.
7. On 24 June 2005 the Supreme Court upheld her request and delegated jurisdiction to the Kranj District Court.
8. On 16 March 2006 the Kranj District Court held the first main hearing.
9. On 26 March 2006 the applicant lodged a request with the Kranj District Court a motion to have the presiding judge excluded.
10. On 5 May 2006 the Vice-President of the District Court upheld the applicant’s request.
11. Between August 2006 and March 2008 the court held further four hearings.
12. On 12 May 2007 the applicant lodged a second request to have the then presiding judge excluded and a request to transfer the case to another court with the subject-matter jurisdiction.
13. On 31 May 2007 the Supreme Court dismissed the applicant’s request to transfer the case to another court.
14. On 28 September 2007 the President of the District Court dismissed the applicant’s request for the exclusion of the presiding judge.
15. On 18 March 2008 the applicant lodged a request to have the president of the District Court and the presiding judge excluded.
16. On 9 April 2008 the President of the Ljubljana Higher Court dismissed the applicant’s request to have the President of the Kranj District Court excluded.
17. On 21 April 2008 the President of the Kranj District Court dismissed the applicant’s request to have the presiding judge excluded.
18. In the meantime, on 5 April 2008, the Kranj District Court imposed a fine of 500 euros (EUR) on the applicant for abuse of her procedural rights by having lodged the requests concerning the exclusion of the presiding judge. The applicant appealed.
19. On 5 November 2008 the Ljubljana Higher Court upheld the applicant’s appeal and annulled the order to fine the applicant. The court held that the district court failed to establish that by lodging the requests the applicant had abused her procedural rights.
20. On 16 September 2009 the applicant lodged a supervisory appeal. On 6 October 2009 the President of the Kranj District Court replied that a hearing would be scheduled for 22 October 2009.
21. A further hearing was held on 22 February 2010.
22. On 9 March 2011 the Kranj District Court issued a judgment in which it upheld the applicant’s claim in part. Both parties appealed.
23. On 18 January 2012 the Ljubljana Higher Court upheld the appeals, quashed the judgment of the lower court and modified it by dismissing the claim in respect of the confinement in December 1999 as time-barred and decided that the claim for non-pecuniary damages in respect of the confinement between July and September 2000 was well-founded but that the first instance court needed to decide on the amount of compensation in a new set of proceedings.
24. The applicant lodged a motion for leave to file an appeal on points of law in respect of the question whether her claim for damages due to the December 1999 confinement was time-barred.
25. On 19 July 2012 the Supreme Court allowed the applicant’s appeal on points of law.
26. On 31 January 2013 the Supreme Court granted the applicant’s appeal on points of law and quashed the respective part of the decision of the higher court.
27. On 13 March 2013 the Ljubljana Higher Court quashed the decision of the district court in respect of the 1999 confinement and remitted the case back to the district court.
28. On 30 January 2014 the applicant lodged a further supervisory appeal which was dismissed on 14 February 2014.
29. On 10 February 2014 the Kranj District Court held the first main hearing after the remittal and postponed the hearing for an indefinite period in order to obtain an expert opinion on the applicant’s mental health at the time of the confinement.
30. On 14 March 2014 the applicant lodged a motion for a deadline with the Ljubljana Higher Court.
31. On 25 March 2014 the Ljubljana Higher Court granted the applicant’s motion for a deadline and ordered the district court to deal with the case with priority.
32. The proceedings are still pending before the Kranj District Court which still needs to decide on the applicant’s claim in respect of the confinement in 1999 and on the amount of compensation in respect of the 2000 confinement.
B. Proceedings concerning the claim for non-pecuniary damages on account of the alleged delays in the above proceedings (P 771/2007-III)
33. On 24 March 2006 the applicant amended her claim in the above proceedings by claiming further non-pecuniary damages due to the length of proceedings. This part of the claim was separated from the main claim and referred to the Ljubljana District Court.
34. On 18 March 2009 the applicant raised the claim to EUR 5,000.
35. On 21 May 2009 the Ljubljana District Court dismissed the applicant’s claim as premature since the main proceedings were still pending. The applicant appealed.
36. On 20 January 2010 the Ljubljana Higher Court dismissed the applicant’s appeal. The applicant lodged a motion to file an appeal on points of law.
37. On 30 September 2010 the Supreme Court allowed the applicant’s appeal on points of law in respect of the question whether it was possible to claim compensation for a violation of one’s right to a trial without undue delay before the termination of the main proceedings.
38. On 27 September 2012 the Supreme Court held that even though the proceedings had been instituted before 1 January 2007 when the Act on the Protection of the Right to a Trial without Undue Delay (“the 2006 Act”) became operational, the latter was applicable to the applicant’s case and therefore it was not possible to claim compensation before the termination of the main proceedings. It further held that since the appeal on points of law was explicitly excluded as a legal remedy in the proceeding under the 2006 Act, the applicant’s appeal on points of law should be rejected on procedural grounds as not allowed. The applicant lodged a constitutional complaint.
39. On 27 December 2013 the Constitutional Court dismissed the applicant’s constitutional complaint by reference to Section 55.b of the Constitutional Court Act.
II. RELEVANT DOMESTIC LAW
40. For relevant domestic law see Žunič v. Slovenia ((dec.), no. 24342/04, §§ 16-26, 18 October 2007).
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
41. 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...”
42. The Government raised an objection, arguing that the applicant had not exhausted the domestic remedies available to her. The Court considers that the question whether the requirement that an applicant must exhaust domestic remedies has been satisfied in the instant case is closely linked to the complaint concerning the existence of an effective remedy within the meaning of Article 13 of the Convention. It therefore considers that this objection raised by the Government under Article 6 § 1 of the Convention should be joined to the merits of the complaint under Article 13 of the Convention. It further notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.
43. The Court considers that the period to be taken into consideration began on 23 July 2003, when the applicant instituted civil proceedings before the Ljubljana District Court, and has not yet ended. The relevant period has therefore so far lasted almost twelve years at three levels of jurisdiction.
44. 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).
45. Applying the criteria, the Court observes that the proceedings appear to be of some complexity.
46. Examining the applicant’s behaviour, the Court observes that she lodged repeated requests for exclusion of the presiding judge. It recalls in this respect that while an applicant is entitled to make use of his or her procedural rights, he or she must bear the consequences when his or her exercise leads to delays (see, inter alia, Malicka-Wąsowsa v. Poland (dec.), no. 41413/98, 5 April 2001, and Peryt v. Poland, no. 42042/98, 2 December 2003). It however notes that the applicant once succeeded with her request and that the Ljubljana Higher Court annulled the decision on fining the applicant for delaying the proceedings by her requests. The Higher Court held that it had not been proven that the applicant had been abusing her procedural rights. Moreover, the decisions on the applicant’s requests were always issued within a couple of weeks. In the circumstances of this case the Court therefore finds that while the applicant’s conduct might have slightly delayed the proceedings it did not have a decisively adverse effect on the overall length of the proceedings.
47. On the other hand, the Court observes in respect of the conduct of the domestic courts that in the initial set of the proceedings, alone the proceedings before the first instance court lasted almost eight years and that following a remittal of the case back to the first instance court after the Supreme Court had upheld in part the applicant’s appeal on points of law, the proceedings have been pending before the first instance court for more than two years.
48. In this context, the Court reiterates that it is for the State to organise its legal system in such a way to enable its courts to comply with the requirement of Article 6 § 1 of the Convention (see, mutatis mutandis, Tusa v. Italy, 27 February 1992, § 17, Series A no. 231-D and Jama v. Slovenia, no. 48163/08, § 36, 19 July 2012).
49. Finally, the Court cannot agree with the Government’s suggestion that what has been at stake for the applicant is not of particular importance since the case concerns the applicant’s claim for non-pecuniary damages allegedly sustained due to her involuntary confinement in a psychiatric hospital and hence also an alleged violation of the applicant’s rights under the Convention.
50. Having examined all the material submitted to it and having regard to its case-law on the subject (see Žolger v. Slovenia, no. 75688/01, §§ 17-19, 30 March 2006; Puž v. Slovenia, no. 76199/01, §§ 20-22, 30 March 2006; Cekuta v. Slovenia, no. 77796/01, §§ 19-21, 6 April 2006; and Bitenc v. Slovenia, no. 3474/06, §§ 38-42, 30 January 2014), the Court, for the reasons set out above, considers that in the instant case the overall length of the proceedings has been excessive and has failed to meet the “reasonable time” requirement.
51. There has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
52. The applicant also complained of the absence of effective domestic remedies in respect of the excessive length of the proceedings. This complaint falls to be examined under Article 13, which 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.”
53. The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.
54. The applicant argued that there has not been any remedy available for her in order to accelerate the proceedings or to obtain compensation for their undue length.
55. The Government argued that the applicant has had the remedies provided for by the 2006 Act, in particular that the applicant will have the opportunity to claim just satisfaction after the final resolution of the case, as provided for in the 2006 Act.
56. 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).
57. The Court further 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” (ibid., § 158). 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 an “effective” remedy within the meaning of Article 35 § 1 (see Mifsud v. France (dec.) [GC], no. 57220/00, ECHR 2002-VIII).
58. In the case of Grzinčič v. Slovenia (no. 26867/02, 3 May 2007), followed by the decision in Korenjak v. Slovenia (no. 463/03, 15 May 2007), the Court, basing itself on an assessment of the legislative provisions of the 2006 Act, found 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).
59. In the subsequent case of Žunič (cited above), the Court specified that it was indispensable that the proceedings, which had already lasted a long time, should be finally resolved particularly promptly following the exhaustion of the acceleratory remedies (ibid., § 50). Moreover, it emphasised that the national authorities should have ensured that the aggrieved party had prompt access to the compensatory remedy once he or she had made use of the acceleratory remedies (ibid., § 53).
60. In the case of Jama v. Slovenia (no. 48163/08, 19 July 2012) the Court found that in the circumstances of that case both the acceleratory remedies and the compensatory remedy had proven to be ineffective, since no significant progress had been made after the applicant had availed himself of the acceleratory remedies, and he also had not been afforded prompt access to the compensation claim with respect to damages sustained owing to the unreasonable length of the proceedings (ibid., §§ 47-49; see also Beltram and Beltram Cerovšek v. Slovenia, no. 10017/10, §§ 51-51, 10 October 2013).
61. The Court observes that even after the applicant had lodged the acceleratory remedies, no swift progress had been made in the case. After she had lodged her first supervisory appeal in September 2009, when the case had already been pending before the first instance for more than six years, it took the court further eighteen months to issue a judgment. Moreover, even though the Ljubljana Higher Court in March 2014 upheld the applicant’s motion for a deadline in respect of the remitted proceedings and ordered the Kranj District Court to deal with the case with priority, more than a year later the proceedings are still pending before that court.
62. The Court further notes that as a consequence of the system provided for by the 2006 Act, whereby access to a compensation claim is dependent on the termination of the proceedings, the applicant also has not been afforded prompt access to just satisfaction claim for the undue delay after having exhausted the acceleratory remedies.
63. In view of the above, the Court finds that under the circumstances of the present case the two avenues available have not shown to have been effective.
64. Accordingly, the Court concludes that there has been a violation of Article 13 of the Convention on account of the lack of an effective remedy. In view of this conclusion, it also rejects the Government’s objection concerning the exhaustion of domestic remedies as to Article 6 § 1 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
65. 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.”
66. The applicant claimed EUR 35,000 in respect of non-pecuniary damage.
67. The Government argued that the claim was exaggerated.
68. The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards her EUR 9,600 under that head.
B. Costs and expenses
69. The applicant also claimed EUR 2,328.45 for the costs and expenses incurred before the domestic courts and EUR 300 for those incurred before the Court.
70. The Government left the matter to the Court’s discretion.
71. 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 necessarily incurred and are reasonable to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,000 covering costs under all heads.
C. Default interest
72. 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. Joins to the merits the Government’s preliminary objection concerning the non-exhaustion of domestic remedies and dismisses it;
2. Declares the application admissible;
3. Holds that there has been a violation of Articles 6 § 1 and 13 of the Convention;
(a) that the respondent State is to pay the applicant, within three months, the following amounts:
(i) EUR 9,600 (nine thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,000 (one 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;
5. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 23 July 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Milan Blaško Angelika Nußberger
Deputy Registrar President