(Application no. 66824/01)
30 November 2006
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 Lesar v. Slovenia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Mr J. Hedigan, President,
Mr B.M. Zupančič,
Mr C. Bîrsan,
Mrs A. Gyulumyan,
Mr E. Myjer,
Mr David Thór Björgvinsson,
Mrs I. Berro-Lefevre, judges,
and Mr V. Berger, Section Registrar,
Having deliberated in private on 9 November 2006,
Delivers the following judgment, which was adopted on that date:
On 17 June 1991 the court delivered a judgment, partly upholding I.Š.'s claim.
On 13 November 1991 the Ljubljana Higher Court (Višje sodišče v Ljubljani) quashed the first-instance court's judgment and remitted the case to the first-instance court for re-examination.
After the Ljubljana Basic Court had issued a new judgment in the case, the Ljubljana Higher Court, on 4 November 1992, quashed it again.
On 25 November 1993, after the re-examination of the case, the Ljubljana Basic Court ruled in favour of I.Š. The applicant again appealed.
On 2 February 1994 the Ljubljana Higher Court rejected his appeal.
On 28 June 1994 the Convention entered into force in respect of Slovenia.
On 8 December 1994 the Supreme Court rejected the applicant's appeal.
The judgment was served on the applicant on 1 February 1995.
On 16 January 1997 the Constitutional Court (Ustavno sodišče) annulled the lower courts' judgements due to a violation of equal protection of rights guaranteed in Article 22 of the Slovenian Constitution. It found that the courts had, in determining the existence of the applicant's civil liability for damages, relied on final judgments issued in separate proceedings which had deprived the applicant of his right to defend his interests effectively. It ordered a re-examination of the case.
On 13 September 1996 the Ljubljana Higher Court partly upheld I.Š.'s appeal but approved the decision concerning the re-opening. The decision was served on the applicant on 8 October 1996.
11. On an unspecified date, but apparently prior to April 1998, the applicant lodged criminal charges for the abuse of public office with the Novo Mesto District Court (OkroZno sodišče v Novem mestu) against the judge B.I., who was responsible for the first-instance proceedings prior to their re-opening.
In addition, the applicant lodged a civil claim with the Celje District Court (OkroZno sodišče v Celju) against the State seeking compensation for damage resulting from the allegedly unlawful proceedings.
On 21 April 1998 the Ljubljana Local Court sent the case-file to Novo Mesto District Court to enable it to decide on the criminal charges against the judge.
It received the case-file back on 15 March 1999.
On 11 October 1999 the case-file was sent to the State Attorney's Office which had requested it in respect of the civil proceedings instituted against the State. On 17 January 2000, the Celje District Court decided to discontinue the civil proceedings against the State until the main proceedings and the criminal proceedings would be concluded.
At the hearing held on 1 December 1999, the Ljubljana Local Court noticed that the case-file was still at the State Attorney's Office. However, on 28 December 1999 the case-file was returned and the proceedings continued.
Between 22 November 1999 and 20 November 2002, the applicant lodged eleven preliminary written submissions and adduced evidence.
On 28 November 2001 the court appointed a medical expert.
During the proceedings, the court made also inquires with I.Š.'s employer and the Slovenian Institute for Statistics (Zavod Republike Slovenije za statistiko) concerning the question of loss of I.Š.'s potential income.
Of the nine hearings held between 1 December 1999 and 20 November 2002, one was adjourned due to the applicant's late submissions. Two hearings fixed for 5 June 2000 and 13 September 2000 were called off due to an unavailability of a witness.
On 20 November 2002 the court issued an interim judgment finding that the applicant was liable for damages up to forty per cents. The judgment was served on the applicant on 13 January 2003.
On 11 June 2003 the Ljubljana Higher Court partly upheld the applicant's appeal and reduced his liability to twenty per cent. The judgment was served on the applicant on 7 July 2003.
The applicant informed the judge M.J., responsible for the first-instance proceedings (paragraph 12), that he might initiate criminal proceedings also against her. He also lodged a request for opening of disciplinary proceedings against her and against the Ljubljana Higher Court's judges who had decided on his appeal.
On 7 October 2004 the Supreme Court rejected the appeals.
The decision was apparently served on the applicant on 5 November 2004.
On 6 July 2005 the Constitutional Court, taking into account also the Supreme Court's decision of 7 October 2004, dismissed the applicant's appeal as manifestly ill-founded. The decision was served on the applicant on 11 July 2005.
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION
“In the determination of his civil rights and obligations ..., everyone is entitled to a hearing within a reasonable time by [a] ... tribunal...”
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.”
1. Article 6 § 1
The proceedings have not yet ended. The relevant period has therefore lasted over twelve years for four levels of jurisdiction. Due to remittals, the case was considered on several instances.
In addition, the Government submitted that in the first-instance proceedings some delays were caused also due to problems with summoning of one of the witnesses: the court failed to serve summons in respect of four hearings, two of them were called off for that reason.
28. The Court cannot but notice that the applicant did indeed take a series of steps which complicated the proceedings. The applicant succeeded with his numerous appeals, which resulted in the three re-examinations of the case before the Convention entered into force in respect of Slovenia on 28 June 1994 and in one re-examination in the period under the consideration – after he had successfully pursued the request for re-opening of the case (Sablon v. Belgium, no. 36445/97, § 87, 10 April 2001) and the constitutional appeal.
29. After the case had been partially decided by the interim judgement of 20 November 2002, the applicant again used all ordinary remedies available against it (paragraphs 13, 15 and 16 above). In addition, he instituted proceedings against the State and the relevant judges which also caused delays in the proceedings at issue since the competent courts needed to study the case-file (paragraphs 11 and 12).
30. As to the argument based on the applicant's use of several remedies (paragraphs 28 and 29 above), the Court notes that, while the applicant cannot be blamed for making full use of the remedies available to him under the domestic law, his behaviour, however, is an objective fact which must be taken into account for the purpose of determining whether or not the "reasonable time" has been exceeded (see, mutatis mutandis, Eckle v. Germany, judgment of 15 July 1982, Series A no. 51, p. 36, § 82). On the other hand, the Court reiterates that Article 6 § 1 imposes on the Contracting States the duty to organise their judicial systems in such a way that their courts can meet each of its requirements.
31. As to the difficulties with the summoning of a witness, the Court observes that they contributed to the length of the proceedings only to a limited extent. It moreover notes that the decision to have recourse to the testimony of a witness was taken in the context of judicial proceedings supervised by a judge (see, mutatis mutandis, Jelen v. Slovenia, no. 5044/02, § 18, 1 June 2006, and Capuano v. Italy, 25 June 1987 Series A no. 119, p. 13, § 30), who remained responsible for the preparation and the speedy conduct of the trial.
32. That being said, the Court notes that after twelve years, within the period under the Court's jurisdiction, the case against the applicant is pending before the first-instance court. In addition, over six years had elapsed between the re-opening of the proceedings and the delivery of the interim judgment. The court considers that the absence of the case-file and the applicant's use of several remedies, which indeed delayed the proceedings, do not, however, justify such length. The Court notes, above all, that the length of the proceedings was in a large part a result of a re-examination of the case. The Court, though not being in a position to analyse the juridical quality of the case-law of the domestic courts, considers that, since the remittal of cases for re-examination is usually ordered as a result of errors committed by lower courts, the repetition of such orders within one set of proceedings discloses a deficiency in the judicial system (e.g. DeZelak v. Slovenia, no. 1438/02, § 25, 6 April 2006).
2. Article 13
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(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, EUR 4,000 (four thousand euros) in respect of non-pecuniary damage and EUR 1,500 (one thousand five hundred euros) in respect of costs and expenses, plus any tax that may be chargeable;
(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;
Done in English, and notified in writing on 30 November 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Berger John Hedigan