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JAZBEC v. SLOVENIA - 31489/02 [2006] ECHR 1075 (14 December 2006)
URL: http://www.bailii.org/eu/cases/ECHR/2006/1075.html
Cite as:
[2006] ECHR 1075
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THIRD
SECTION
CASE OF JAZBEC v. SLOVENIA
(Application
no. 31489/02)
JUDGMENT
STRASBOURG
14 December 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 Jazbec 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 V. Zagrebelsky,
Mrs A.
Gyulumyan,
Mr E. Myjer,
Mrs I. Ziemele,
Mrs I.
Berro-Lefevre, judges,
and Mr V. Berger, Section
Registrar,
Having
deliberated in private on 23 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 31489/02) 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, Mrs Nada Jazbec (“the applicant”),
on 14 August 2002.
Since
18 October 2005, the applicant was
represented by Mr M. Štrtak, a lawyer
practising in Trbovlje. The
Slovenian Government (“the Government”) were represented
by their Agent, Mr L. Bembič, State Attorney-General.
The
applicant alleged under Article 6 § 1 of the Convention that the
length of the proceedings before the domestic courts to which she was
a party was excessive. In substance, she also complained about the
lack of an effective domestic remedy in respect of the excessive
length of the proceedings (Article 13 of the Convention).
On
13 September 2005 the
Court decided to communicate the complaints concerning the length of
the proceedings and the lack of remedies in that respect to the
Government. Applying Article 29 § 3 of the Convention, it
decided to examine the merits of the application at the same time as
its admissibility.
THE FACTS
The
applicant was born in 1951 and lives in Trbovlje.
On
20 July 1993 the applicant was discharged from the company ABCT as a
result of disciplinary proceedings.
Her
appeal of 3 August 1993 was rejected by the board of executives of
the ABCT on 17 August 1993. The decision was served on the applicant
on 27 August 1993. Her employment with ABCT was thus ended.
On
30 August 1993 she lodged a request for protection of rights with the
then Ljubljana Labour Court (Sodišče
zdruZenega dela v Ljubljani). In substance, she was
contesting the decision concerning termination of her employment with
ABCT.
On
28 June 1994 the Convention took effect with respect to Slovenia.
Following a reform of the judicial system, the court
before which the case was pending was renamed to Ljubljana Labour and
Social Court (Delovno in socialno sodišče v
Ljubljani).
The
hearing scheduled for 14 September 1995 was cancelled at the
respondent's request.
On
18 October 1995 the applicant lodged a request for an interim
measure.
On
19 October 1995 the court held the first hearing and the second
hearing was held on 16 November 1995.
On
27 November 1995 the applicant submitted new evidence.
On
30 November and 7 December 1995 the court held hearings. The last
hearing was adjourned for an indefinite period of time and the case
was transferred to the criminal court.
On
11 December 1995 the court dismissed the applicant's request for an
interim measure. The applicant's appeal against this decision was
dismissed by the Higher Labour and Social Court (Višje
delovno in socialno sodišče v Ljubljani) on 3
January 1996.
On
13 February 1996 the Ljubljana Labour and Social Court decided to
stay the proceedings because criminal proceedings were instituted
against the applicant.
The
applicant appealed to the Higher Labour and Social Court which
allowed the appeal on 8 May 1997 and remitted the case to the
first-instance court for further examination.
The
Ljubljana Labour and Social Court scheduled a hearing for 12 June
1997. This hearing was adjourned at the applicant's request, because
she was living abroad at the time.
On
18 September 1997 the court held a hearing which was adjourned in
order to summon witnesses.
The
hearing scheduled for 18 November 1997 was cancelled at the request
of the applicant, because her lawyer was defending a minor in a
different set of proceedings.
On
13 and 18 November 1997 the applicant lodged preliminary written
submissions and increased her claim.
As
the hearing held on 27 November 1997 the applicant lodged preliminary
written submissions and alleged new violations. As a result, the
court adjourned the hearing to acquire evidence related to the newly
raised allegations.
On
1 December 1997 the applicant lodged preliminary written submissions.
On
22 January 1998 the court held a hearing, decided to hear additional
witnesses and that it would issue a judgment on the merits.
On
28 June 1999 the court held a hearing. It decided on its own motion
that the case needed further examination and heard some witnesses.
On
7 July 1999 the respondent informed the court that composition
proceedings had been terminated against it and that the applicant did
not raise her claims in those proceedings.
On
23 September 1999 the court held a hearing and dismissed the
applicant's complaints. The written judgment was delivered on 9 June
2000.
On 19
June 2000 the applicant appealed to the Higher Labour and Social
Court.
On
14 June 2001 the court allowed the appeal in part, set aside a part
of the impugned judgment and remitted the case to the first-instance
court for fresh examination.
On
31 August 2001 the applicant lodged preliminary written observations
with the Ljubljana Labour and Social Court.
The
hearing scheduled for 19 November 2001 was cancelled because the
applicant challenged the president of the senate. The challenge was
dismissed on 3 November 2001 by the Higher Labour and Social Court.
The
hearing scheduled for 11 February 2002 in the Ljubljana Labour and
Social Court was re-scheduled at the respondent's request.
On
11 March and 22 April 2002 the court held hearings.
On
27 May 2002 the applicant again requested the court to issue an
interim measure. The request was dismissed as ill-founded on 30 May
2002. The Higher Labour and Social Court dismissed the applicant's
appeal against this decision on 20 June 2002.
The
hearing scheduled for 10 June 2002 was cancelled at the respondent's
request.
On
12 July 2002 the applicant lodged preliminary written submissions.
The
hearing scheduled for 8 July 2002 was re-scheduled for 30 September
2002, because the president of the senate was absent.
The
hearing scheduled for 30 September 2002 was cancelled at the request
of the respondent, because her lawyer was hospitalised.
The
hearing scheduled for 18 November 2002 was cancelled at the request
of the applicant, because her lawyer was representing another client
at the time in a different set of proceedings.
Between
3 December 2002 and 5 September 2003 the court held six hearings,
heard several witnesses and examined the documents related to the
case. At the last hearing the court delivered the judgment upholding
the applicant's claims in part.
On
20 October 2003 the applicant appealed to the Higher Labour and
Social Court. On 5 December 2003 the respondent cross-appealed.
The
respondent's appeal was rejected by the Ljubljana Labour and Social
Court for being too late on 20 October 2004.
On
2 November 2004 the respondent appealed against the decision
concerning the rejection and sought leave for restitutio in
integrum.
On
10 March 2005, the Higher Labour and Social Court dismissed the
respondent's appeal against the decision of 20 October 2004.
On
21 April 2005 the respondent lodged an appeal on points of law with
the Supreme Court (Višje sodišče) against
this decision.
In
the meanwhile, on 21 March 2005 the Ljubljana Labour and Social Court
dismissed the leave for restitutio in integrum.
On
6 April 2005 the respondent appealed against this decision to the
Higher Labour and Social Court.
The
court dismissed the appeal on 12 May 2005. At the same time it also
upheld the applicant's appeal of 20 October 2003 in part and
increased the damages awarded to the applicant. It further decided
that a part of the appeal should be considered as a request for
issuing an additional decision to the judgment of 5 September 2003.
In this respect it remitted the case to the first-instance court.
On
18 July 2005 the respondent lodged an appeal on points of law with
the Supreme Court.
On
21 July 2005 bankruptcy proceedings were instituted against the
respondent in the Ljubljana District Court (OkroZno sodišče
v Ljubljani).
The
Ljubljana Labour and Social Court scheduled a hearing for
6 September 2005 in order to continue proceedings following
the instructions of the second-instance court. The hearing was
cancelled at the request of the applicant who sought that the
bankruptcy administrator be invited to intervene in the proceedings.
On
3 October 2005 the bankruptcy administrator informed the court that
the applicant sought payment of her claims in the bankruptcy
proceedings. On 10 October 2005 the bankruptcy court upheld the
applicant's claim on the merits.
On
18 October 2005 the Ljubljana Labour and Social Court held a hearing
and decided to deliver a written judgment. This judgment became final
on 20 December 2005.
The
case is pending before the Supreme Court due to the respondent's
appeals on points of law of 21 April 2005 and 18 July 2005.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE
CONVENTION
The
applicant complained about the excessive length of the proceedings.
She relied on 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...”
In
substance, 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 [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
The
Government pleaded non-exhaustion of domestic remedies.
The
applicant contested that argument, claiming that the remedies
available were not effective.
The
Court notes that the present application is similar to the cases of
Belinger and Lukenda (see Belinger v. Slovenia
(dec.), no. 42320/98, 2 October 2001 and Lukenda v. Slovenia,
no. 23032/02, 6 October 2005). In those cases the Court dismissed the
Government's objection of non-exhaustion of domestic remedies because
it found that the legal remedies at the applicant's disposal were
ineffective. The Court recalls its findings in the
Lukenda judgment that the violation of the right to a trial
within a reasonable time is a systemic problem resulting from
inadequate legislation and inefficiency in the administration of
justice.
As
regards the instant case, the Court finds that the Government have
not submitted any convincing arguments which would require the Court
to distinguish it from its established case-law.
The
Court further notes that the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. Nor is it inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Article 6 § 1
The
Government acknowledged that the proceedings at issue were of
considerable importance for the applicant. They argued that the
proceedings were factually and procedurally complex because they
required hearing of many witnesses and an examination of large number
of documents. The courts involved in the proceedings examined the
case promptly. The first instance court, for example, held twenty
hearings and the adjournment of only one of the scheduled hearings
was attributable to the court. Besides, the courts also issued fines
to two witnesses because they failed to appear promptly before the
court. However, the applicant and her adversary in the domestic
proceedings failed to exercise their procedural rights with all due
diligence. Many of the scheduled hearings were re-scheduled at their
request. In addition, they lodged many requests for interlocutory
decisions, which were manifestly ill-founded and they appealed
against the decisions which were not in their favour even though they
had no ground for appeal. Besides, the submissions the applicant
lodged at the hearings resulted in adjournments in order to give time
to the respondent to prepare a reply. Moreover, the applicant could
have raised all the claims and adduced all the relevant evidence at
the onset of the proceedings. Since she failed to do so, she
substantially contributed to the overall length of the proceedings.
The
applicant contested these arguments. She asserted that she did all
she could to accelerate the proceedings and alleged that the reasons
for the entire length of the proceedings lay with the domestic
courts.
The
period to be taken into consideration began on 28 June 1994, the day
when the Convention entered into force with respect to Slovenia, and
has not yet ended. The relevant period has therefore lasted nearly
twelve years and five months for three levels of jurisdiction. In
total sixteen decisions have been rendered.
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 employment disputes (Ruotolo v. Italy,
judgment of 27 February 1992, Series A no. 230-D, p. 39, § 17).
First,
the Court notes that three scheduled hearings were either cancelled
or rescheduled at the applicant's request (see paragraphs 19, 21 and
39 above). The applicant also challenged the president of the senate
(see paragraph 31 above), sought two interim decisions and lodged two
interlocutory appeals (see paragraphs 16 and 34 above). In this
respect the Court recalls that while the applicant is entitled to
make use of her procedural rights, she must bear the consequences
when 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). In the circumstances of this case the Court agrees with the
Government that the applicant's conduct had an adverse affect on the
length of the proceedings.
Next,
the Court observes that there were some delays in the proceedings
which cannot be imputable on the applicant or her adversary. For
example, the period of nearly one year and three months elapsed since
the beginning of the relevant period, before the court scheduled the
first hearing; no court activity occurred for more than one year and
five months, the period between the hearings of 22 January 1998 and
28 June 1999; and it took the court nearly eleven months to reject
the respondent's appeal of 5 December 2003, which was too late.
Lastly,
the Court is of the view that what was at stake in the impugned
proceedings was of pronounced importance for the applicant and that
the proceedings were somewhat complex.
Having
examined all the material submitted to it, and having regard to its
case-law on the subject, the Court considers that in the particular
circumstances of the instant case the length of the proceedings 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). It notes that the objections and arguments put forward by
the Government have been rejected in earlier cases (see Lukenda,
cited above) and sees no reason to reach a different conclusion in
the present case.
Accordingly,
the Court considers 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. 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. Pecuniary damage
The
applicant claimed 174,414.01 euros (EUR) in respect of pecuniary
damage.
The
Government contested the claim.
The
Court recalls that the applicant, claiming to have suffered material
damages due to an excessive delay in proceedings, can institute civil
proceedings against the State seeking compensation for these damages.
The court has already found that this remedy is in principle
effective (see Lukenda, cited above, § 59).
In
the present case, the applicant neither availed herself of the said
remedy, nor alleged that this remedy was ineffective in the
circumstances of her case. The applicant thus failed to exhaust
domestic remedies.
B. Non-pecuniary damage
The
applicant claimed EUR 4,172.92 in respect of non-pecuniary damage she
sustained and EUR 2,086.46 for the damage each of her sons sustained.
The
Government contested the claim. They argued that the applicant's sons
lacked victim status and therefore could not claim any damage.
The
Court considers that the applicant must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards her EUR 2,400 under
that head.
As
for the damage the applicant claimed for her sons, the Court notes
that they were neither a party to the impugned proceedings nor the
applicant's in the proceedings before the Court. The Government's
objection that the applicant's sons lack victim status within the
meaning of Article 34 of the Convention should therefore be upheld
and this part of the claim rejected.
C. Costs and expenses
The applicant claimed EUR 1,176.04 for the costs and
expenses of her legal representative in the proceedings before the
Court, EUR 8,227.80 for the costs and expenses of her representation
in the domestic courts, EUR 1,004 for costs for translation and
EUR 36.30 for postage.
The
Government argued that the claim was too high and that, in any event,
the applicant cannot seek reimbursement of costs she incurred in
domestic courts when the impugned proceedings were not aimed at
remedying the violations of the Convention rights alleged by the
applicant before the Court.
According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum.
The
Court notes that the proceedings before the domestic courts were not
at all aimed at remedying the violations of the Convention rights
alleged by the applicant before the Court (see, a fortiori,
Scordino v. Italy (no. 1) [GC], no. 36813/98, §§
283/286, ECHR 2006-...). It therefore accepts the Government's
argument that the applicant cannot claim the reimbursement of costs
incurred before the domestic courts.
As
for the costs for translation, the Court observes that the applicant
did not establish how these costs were incurred. The documents and
observations submitted by the applicant were in Slovenian and no
translation was provided. Apart from one letter, which the applicant
apparently drafted herself, her written correspondence was also in
Slovenian.
As
to the other costs and expenses, the Court took notice of the
Ljubljana District Court's decision of 18 October 2005. The court
decided awarding the applicant legal assistance (brezplačna
pravna pomoč), in order to cover the costs and expenses of
legal representation in the proceedings before the Court.
Accordingly,
the Court decides not to award the applicant any sum under this head.
D. Default interest
The
Court considers it appropriate that the default interest 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
Declares the application admissible;
Holds that there has been a violation of Article
6 § 1 of the Convention;
Holds that there has been a violation of Article
13 of the Convention;
Holds
(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 2,400 (two
thousand four hundred euros) in respect of non-pecuniary damage, 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;
5. Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 14 December 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Vincent
Berger John Hedigan
Registrar President