(Application no. 9303/02)
9 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 Varacha 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 19 October 2006,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
On 19 January 1994 the court held a hearing and decided to request the Klagenfurt Court (Gericht in Klagenfurt), Austria, to hear the applicant who lived in Klagenfurt at the time.
On 28 June 1994 the Convention took effect with respect to Slovenia.
On 12 October 1994 the applicant urged the court to issue the request to the Klagenfurt Court. She also requested the court to process her case more diligently.
On 1 January 1995 the Kranj Local Court (Okrajno sodišče v Kranju) gained jurisdiction in the present case due to the reform of the Slovenian judicial system.
On 10 April and 12 December 1996, and 12 February, 21 August and 21 October 1997 and 9 February 1998 the applicant repeated her request of 12 October 1994.
On 9 September 1997 the court informed the applicant that it would only request the court in Austria to take her testimony, if she produced substantiated reasons why she could not appear before the court in Slovenia.
On 14 September 1998 the applicant informed the court that the reason why she should be heard in Austria was that she did not have sufficient knowledge of Slovene language to appear before the Slovenian court and that retaining an interpreter would be to costly and time consuming. Since the court found those reasons insufficient, it decided not to request a court in Austria to hear the applicant.
On 12 January 1999 the applicant requested that a date be set for a hearing.
On 9 February 1999 the court held a hearing and heard the applicant without an interpreter. The court found that the applicant was able to understand the questions in Slovene and was also able to respond in the same language to the questions asked. The court decided to adjourn the hearing till 23 March 1999.
On 10 March 1999 the applicant requested the court to postpone the hearing scheduled for 23 March 1999 in order to allow her time to summon M.H., one of the witnesses. Her request was granted.
The postponed hearing was held on 29 April 1999, but M.H. did not attend.
On 18 May 1999 the applicant informed the court that M.H. had died and requested the court to appoint a road traffic expert.
On 1 June 1999 the court held a hearing and decided to appoint a road traffic expert.
On 7 July 1999 the court appointed a road traffic expert and awarded him a delay of thirty days to produce an expert opinion.
On 28 September 1999 the expert delivered the opinion holding that Mr F.J. was only party liable for the damage made on the applicant's car. Another person involved in the accident was partly responsible for the remaining damage, but this person was not a party to the proceedings.
On 14 December 1999 the applicant submitted her comments on the expert opinion.
On 4 May 2000 the applicant requested the court to seek an additional opinion from the appointed expert.
On 6 October 2000 the court ordered the expert to produce an additional opinion, which he did on 20 November 2000.
On 16 January 2001 the applicant lodged written submissions.
On 15 May 2001 the court held a hearing, heard the appointed expert and decided to deliver a written judgment.
The judgment, upholding the applicant's claim in part, was served on the applicant on 20 August 2001. The judgment became final on 5 September 2001.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The 1991 Constitution
“Everyone shall have the right to compensation for damage caused by the unlawful acts of a person or body when performing a function or engaged in an activity on behalf of a state or local authority or as a holder of public office. ...”
B. The Code of Obligations 2001
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...”
“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
There has accordingly been a breach of Article 6 § 1.
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.”
A. Pecuniary damage
Accordingly, her claim for pecuniary damage must be declared inadmissible.
B. Non-pecuniary damage
C. Costs and expenses
The Court finds that the applicant must have incurred some costs and expenses in the proceedings. Accordingly, in the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the applicant the sum of EUR 800 for the proceedings before the Court.
D. 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 4,800 (four thousand eight hundred euros) in respect of non-pecuniary damage and EUR 800 (eight 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 9 November 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Berger John Hedigan