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TOMAZIC v. SLOVENIA - 38350/02 [2007] ECHR 1090 (13 December 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/1090.html
Cite as:
[2007] ECHR 1090
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THIRD
SECTION
CASE OF TOMAZIČ v. SLOVENIA
(Application
no. 38350/02)
JUDGMENT
STRASBOURG
13
December 2007
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 TomaZič v.
Slovenia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr C. Bîrsan,
President,
Mr B.M. Zupančič,
Mrs E.
Fura-Sandström,
Mrs A. Gyulumyan,
Mr E. Myjer,
Mr David
Thór Björgvinsson,
Mrs I. Ziemele, judges,
and
Mr S. Naismith, Deputy Section Registrar,
Having
deliberated in private on 22 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 38350/02) 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, Mr Bogomir TomaZič
(“the applicant”), on 14 October 2002.
The
Slovenian Government (“the Government”) were represented
by their Agent, Mr L. Bembič, the State Attorney-General.
The
applicant alleged, inter alia, that the length of the
proceedings he had instituted before the domestic courts was in
breach of Article 6 § 1 of the Convention. In substance, he 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
28 September 2006 the Court decided to give notice of the application
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.
On
2 May 2007 the Court decided to invite the Government to submit
further written observations on the admissibility of the application.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1946 and lives in Maribor.
On
10 May 1993 the applicant instituted civil proceedings against a
company, SCT, and the Ministry of Transport and Communications (“the
MTC”) in the Maribor Basic Court (Temeljno sodišče
v Mariboru) seeking compensation and restitutio in integrum
in respect of damage caused by the construction of a motorway near
real estate he owned.
On
28 June 1994 the Convention entered into force in respect of
Slovenia. Thereafter, the (renamed) Maribor District Court (OkroZno
sodišče v Mariboru) held four hearings in the
case. The hearing held on 18 September 1995 was adjourned sine
die in order for the applicant to submit further submissions. The
next hearing scheduled for 27 January 1997 was called off at the
applicant's request due to a change in his legal representation.
Subsequently, the hearing held on 9 April 1997 was adjourned sine
die since the parties were given sixty days to reach an
out-of-court settlement. On 20 October 1997 the applicant informed
the court that the settlement had not been reached. The next hearing,
held on 23 September 1998, was adjourned until 11 November 1998
(see paragraph 11 below) in order for the applicant to reply to the
MTC's late submissions. However, due to another change in his legal
representation, the applicant failed to submit his reply.
During the proceedings, the court appointed three
experts in construction science. The first expert, appointed on 10
August 1994, withdrew on 23 August 1994. The following day, the court
appointed the second expert, who submitted a report on 22 December
1994. The third expert was appointed on 22 January 1998 and submitted
a report on 23 May 1998.
Between
22 January 1997 and 29 September 1998 the applicant submitted four
preliminary written submissions.
At the hearing held on 11 November 1998 the court
decided to deliver a written judgment. The judgment, upholding the
applicant's claim in part, was served on the applicant on 7 January
1999.
On
20 January 1999 the applicant appealed to the Maribor Higher Court
(Višje sodišče v Mariboru).
In his appeal, the applicant referred, inter alia, to the
building permits obtained by the MTC in 1990 and 1991, which
allegedly obliged the MTC to compensate the damage caused as a result
of the construction work on the motorway.
On 5
June 2001 the court allowed the applicant's appeal in part and
remitted the respective part of the case to the first-instance court
for re-examination.
On
24 August 2001 the applicant lodged a constitutional appeal against
the second-instance judgment. The appeal was dismissed by the
Constitutional Court on 25 April 2002 due to non-exhaustion.
Meanwhile,
in the remitted part of the proceedings, the applicant lodged,
between 2 October 2001 and 11 May 2004, six preliminary written
submissions and adduced evidence.
On
15 October 2001 the court held the first hearing in the remitted
proceedings, which was then adjourned sine die. Although the
reasons for the adjournment were not stated in the records of the
hearing, it appears that the applicant asked the court to allow him a
sixty-day time-limit to prepare his answer to the MTC's preliminary
written submissions of 11 October 2001 which he had
received only at the hearing. He further asked the court to adjourn
the hearing until the Constitutional Court had decided on his
constitutional appeal (paragraph 13 above). At the same time he also
made a request for the withdrawal of the sitting judge. That request
was rejected on 7 December 2001.
On
27 May 2003 the court forwarded a document concerning an assessment
of certain plots of the relevant real estate to the parties. They
submitted their pleadings in reply by 9 July 2003.
On
21 October 2003 the court appointed another expert in construction
science and an agricultural expert. The experts submitted their
reports on 24 February and 25 March 2004 respectively.
The
court held hearings on 1 June and 20 September 2004.
At
the hearing held on 20 September 2004 the court decided to
deliver a written judgment. The judgment, upholding the applicant's
claim in part, was served on him on 21 October 2004.
On
3 November 2004 the applicant appealed to the Maribor Higher Court.
On 14
June 2005 the court dismissed the applicant's appeal.
On
5 September 2005 the applicant lodged an appeal on points of law with
the Supreme Court (Vrhovno sodišče).
On 13
July 2006 the latter dismissed the appeal as unfounded in so far as
the compensation was concerned and as inadmissible in respect of the
remainder.
On
7 November 2006 the applicant lodged a constitutional appeal. The
proceedings are currently pending before the Constitutional Court.
II. RELEVANT DOMESTIC LAW
The
Act on the protection of the right to a trial without undue delay
(Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja,
Official Gazette, no. 49/2006 – “the 2006 Act”)
became operational on 1 January 2007. It provides for two
remedies to expedite pending proceedings – a supervisory appeal
(nadzorstvena pritoZba) and a motion for a deadline (rokovni
predlog) – and, under certain conditions, for a claim for
just satisfaction in respect of damage sustained because of the undue
delay (zahteva za pravično zadoščenje). The
relevant provisions read as follows:
Section 5 - Supervisory appeal
“(1) If a party considers that the court is unduly
protracting the decision-making, he or she may lodge a supervisory
appeal in writing before the court hearing the case; the decision
thereon is taken by the ... president of the court
...”
Section 8 - Motion for a deadline
“(1) If, under section 6(1) or (5) of this Act,
the president of the court dismisses the supervisory appeal or fails
to respond to the party within two months or fails to send the
notification referred to in section 6(4) of this Act within the said
time-limit or if appropriate procedural acts have not been performed
within the time-limit set in the notification or ruling of the
president of the court, the party may lodge a motion for a deadline
under section 5(1) of this Act with the court hearing the case.
...”
Section 9 - Competence for decision-making
“(1) The president of the higher court in the
judicial area covering the local court, district court or other court
of first instance, shall be competent to decide on the motion for a
deadline concerning cases heard by the local court, district court or
other court of first instance.
(2) The president of the Supreme Court of the Republic
of Slovenia shall have the competence to decide on the motion for a
deadline concerning cases heard by a higher court or a court having
the status of higher court.
(3) The president of the Supreme Court of the Republic
of Slovenia shall have the competence to decide on the motion for a
deadline concerning cases heard by the Supreme Court of the Republic
of Slovenia.
...”
Section 10 - Decision on the motion for a deadline
“The president of the court hearing the case shall
forthwith refer the motion for a deadline together with the case file
and the supervisory appeal file to the president of the court
competent to decide on the motion for a deadline.”
Section 15 - Just satisfaction
“(1) If the supervisory appeal lodged by the party
was granted or if a motion for a deadline has been lodged, the party
may claim just satisfaction under the present Act.
...”
Section 19 - Proceedings before the State Attorney's
Office
“(1) Proceedings to enforce a claim for just
satisfaction, provided that the condition referred to in section
15(1) of this Act is met, shall be instituted by a party by means of
a motion for settlement lodged with the State Attorney's Office with
a view to reaching an agreement on the type or amount of just
satisfaction. The party may lodge such motion within nine months of
the final resolution of the case. The State Attorney's Office shall
rule on the motion of the party within a period of three months if it
establishes that the just satisfaction claim is substantiated. Until
the expiry of the above-mentioned period, the party may not assert
any claim for monetary compensation by way of just satisfaction by
bringing an action before the competent court.
(2) If, in accordance with paragraph 1 of this section,
the agreement has been reached with the party, the State Attorney's
Office shall enter into an out-of-court settlement with the party.”
Section 20 - Proceedings in a court
“(1) If no agreement under section 19 of this Act
is reached upon the motion for settlement, or the State Attorney's
Office and the party fail to negotiate an agreement within three
months of the date of the motion being lodged, the party may bring an
action for damages.
(2) An action for damages against the Republic of
Slovenia shall be brought not later than eighteen months after the
final resolution of the party's case.
...”
Section 25 - Just satisfaction for damage sustained
prior to implementation of this Act
“(1) In cases where a violation of the right to a
trial without undue delay has already ceased to exist and the party
had filed a claim for just satisfaction with the international court
before the date of implementation of this Act, the State Attorney's
Office shall offer the party a settlement on the amount of just
satisfaction within four months of the date of receipt of the case
referred by the international court for the settlement procedure. The
party shall submit a settlement proposal to the State Attorney's
Office within two months of the date of receipt of the proposal of
the State Attorney's Office. The State Attorney's Office shall decide
on the proposal as soon as possible and within a period of four
months at the latest. ...
(2) If the proposal for settlement referred to in
paragraph 1 of this section is not acceded to or the State Attorney's
Office and the party fail to negotiate an agreement within four
months of the date on which the party filed its proposal, the party
may bring an action before the competent court under this Act. The
party may bring an action within six months of receiving notification
from the State Attorney's Office that the party's proposal referred
to in the previous paragraph was not acceded to, or after the expiry
of the period fixed in the previous paragraph for the State
Attorney's Office to decide to proceed with settlement. Irrespective
of the type or amount of the claim, the provisions of the Civil
Procedure Act concerning small claims shall apply in proceedings
before a court.”
The
relevant provisions of the Civil Procedure Act (Zakon o pravdnem
postopku, Official Gazette, no. 83/2001) provide:
Section 319
“A judgment, against which an appeal can no
longer be lodged, shall become final (pravnomočen), in so
far as the party's claim or counter-claim has been decided therein.
...”
Section 333
“The parties may lodge an appeal against a
judgment delivered at first instance within thirty days from the
service of its written grounds...
An appeal, lodged on time, precludes the judgment from
becoming final in the part which has been challenged in the appeal.”
Section 367
“The parties may lodge an appeal on points of law
against a final judgment, delivered at second instance, within thirty
days from the service of its written grounds.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 (length) AND
13 OF THE CONVENTION
The
applicant complained about the excessive length of the proceedings.
He 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 excessively long 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
1. The parties' submissions
In
their observations, the Government argued that the applicant had
failed to exhaust domestic remedies in that he had not availed
himself of the remedies available prior to the implementation of the
2006 Act, in particular, a motion for the preliminary settlement of a
dispute under section 14 of the Public Attorney Act and a
compensation claim under section 26 of the Slovenian Constitution.
They also informed the Court that, further to its judgment in Lukenda
v. Slovenia (no. 23032/02, 6 October 2005) binding the
Slovenian State to adopt appropriate legal measures and
administrative practices in order to secure the right to a trial
within reasonable time, the 2006 Act had been enacted and had become
operational on 1 January 2007. The 2006 Act had established
effective remedies in respect of length-of-proceedings complaints.
Following
the implementation of the 2006 Act, the Court invited the Government
to explain the relevance of the new legislation to the issue of
exhaustion of domestic remedies in the present case, particularly in
the light of the fact that the respective proceedings had been
“finally resolved” before 1 January 2007 and
subsequently continued before the Constitutional Court.
The
Government submitted in reply that, according to section 19 of the
2006 Act, a just satisfaction claim can only be awarded in respect of
excessive delays which occurred in first or second-instance
proceedings.
As
to the acceleratory remedies, the Government submitted that, under
sections 9 and 10 of the 2006 Act, an aggrieved party can also use
the acceleratory remedies in proceedings before the Supreme Court. In
this connection it is irrelevant whether the case had been “finally
resolved” before or after 1 January 2007. Moreover, referring
to the Court's judgments in Kudła v. Poland ([GC],
no. 30210/96, ECHR 2000 XI) and Scordino v. Italy
(no. 1) ([GC], no. 36813/97, ECHR 2006 ...),
the Government argued that the State should enjoy a certain margin of
appreciation as to the manner of providing a domestic remedy in
respect of the “reasonable time” requirement. The
Government also referred to the Court's opinion that by choosing to
introduce only a compensatory remedy for length-of-proceedings
complaints the State would still comply with the requirements of
Article 13. In the Government's view, there was no reason why the
same conclusion should not apply to the reverse situation where the
domestic law provided only for remedies designed to expedite
proceedings, especially when this possibility was open in respect of
proceedings before the Supreme Court.
In
addition, while acknowledging that the 2006 Act did not cover the
proceedings before the Constitutional Court, the Government submitted
that amendments to the Constitutional Court Act (Official Gazette,
no. 51/07) were introduced in July 2007 with the aim of
simplifying and shortening the procedure before that court. These
changes were expected to have an effect in practice at the end of
2008.
Finally,
the Government submitted that section 25 of the 2006 Act
concerned only proceedings where the violation has fully ceased to
exist.
The
applicant argued that the 2006 Act became operational only on
1 January 2007.
2. The Court's assessment
(a) Relevant principles deriving from the Court's
case-law
The
Court reiterates, firstly, that by virtue of Article 1 of the
Convention, the primary responsibility for implementing and enforcing
the guaranteed rights and freedoms is laid on the national
authorities. The machinery of complaint to the Court is thus
subsidiary to national systems safeguarding human rights. This
subsidiary character is reflected in Articles 13 and 35 § 1 of
the Convention.
The
purpose of Article 35 § 1, which sets out the rule on exhaustion
of domestic remedies, is to afford the Contracting States the
opportunity of preventing or putting right the violations alleged
against them before those allegations are submitted to the Court (see
Selmouni v. France [GC], no. 25803/94, § 74,
ECHR 1999-V, and Kudła, cited above, § 152). The
rule in Article 35 § 1 is based on the assumption, reflected in
Article 13 (with which it has a close affinity), that there is an
effective domestic remedy available in respect of the alleged breach
of an individual's Convention rights (ibid.).
Under
Article 35, normal recourse should be had by an applicant to remedies
that are available and sufficient to afford redress in respect of the
breaches alleged. The existence of such remedies must be sufficiently
certain, failing which they will lack the requisite accessibility and
effectiveness; it falls to the respondent State to establish that
these various conditions are satisfied (see, among many other
authorities, Vernillo v. France, judgment of 20
February 1991, Series A no. 198, p. 11, § 27).
The
Court 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” (see Kudła, cited above, §
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
“effective” remedy within the meaning of Article 35 §
1 (see Mifsud v. France (dec.) [GC], no. 57220/00, ECHR
2002-VIII). However, for countries where length-of-proceedings
violations already exist, a remedy designed to expedite the
proceedings – although desirable for the future – may not
be adequate to redress a situation in which the proceedings have
clearly already been excessively long (Scordino (no. 1), cited
above, § 185).
Finally,
the Court has already had occasion to reiterate that, subject to
compliance with the requirements of the Convention, the Contracting
States are afforded some discretion as to the manner in which they
provide individuals with the relief required by Article 13 and
conform to their Convention obligation under that provision (Scordino
(no. 1), cited above, §188).
(b) The Court's findings in the Grzinčič
judgment and Korenjak decision
On
3 May 2007 the Court delivered a judgment in the case of Grzinčič v.
Slovenia (no. 26867/02, 3 May 2007) followed by the decision in
Korenjak v. Slovenia ((dec.) no. 463/03, § 62,
15 May 2007) in which the applicants complained, inter
alia, about the length of proceedings which were pending at
second instance. Further to its assessement of the
2006 Act, the Court was satisfied that the aggregate of remedies
provided by the new legislation in cases of excessively long
proceedings pending at first and second instance were 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 had already occurred (see
Grzinčič,
cited above, § 98). The Court therefore concluded that
the applicants should have exhausted the new remedies in order to
comply with Article 35 § 1 of the Convention. The Court further
found that this conclusion was valid not only for those applications
lodged after the date on which the 2006 Act became operational, but
also for those concerning domestic proceedings pending at first and
second instance which were already on the Court's list of cases by
that date (see Grzinčič, cited above, § 102).
(c) Application to the present case
It
should first be observed that the Maribor Higher Court dismissed the
applicant's appeal against the first-instance judgment on 14 June
2005 (see paragraph 20 above). At that point the proceedings became
“finally resolved” (see paragraph 24 above), that is, no
further ordinary appeal lay against the judgment. Subsequently, the
applicant availed himself of an appeal on points of law. The Supreme
Court decided on his appeal on points of law on 13 July 2006. On 7
November 2006 the applicant lodged a constitutional appeal and the
proceedings have since then been pending before the Constitutional
Court (paragraphs 21 and 22 above). Having regard to these
circumstances, the Court notes that the present case is significantly
different from the Grzinčič (cited above, §§
77-111) and Korenjak (cited above) cases, which concerned
proceedings that were pending at second instance on the date the 2006
Act became operational (paragraph 39 above).
The
Court takes note of the Government's statement that under the 2006
Act just satisfaction can be claimed in respect of first and
second-instance proceedings (paragraph 29 above). The Court however
observes that, pursuant to section 15 of the 2006 Act, for the claim
to be admitted, a party must successfully avail himself of a
supervisory appeal or lodge a motion for a deadline as provided by
the 2006 Act. Moreover, the request for just satisfaction in respect
of non-pecuniary damage – initially in the form of a motion for
a settlement – must be lodged within nine months of the final
resolution of the proceedings (see section 19 – paragraph 23
above), which in the present case was the Maribor Higher Court's
decision of 14 June 2005. The Court therefore finds that the
applicant could not have used the just satisfaction claim under
section 15 taken in conjunction with sections 19 and 20 of the 2006
Act, which became operational only on 1 January 2007, that is to
say about a year and a half after the final resolution of the case.
Moreover, there is nothing in the 2006 Act to warrant an assumption
of retroactive application.
With
regard to the Government's argument that the 2006 Act established
acceleratory remedies which can also be used in proceedings before
the Supreme Court (paragraph 30 above), the Court notes that in the
present case the proceedings before the Supreme Court ended on
13 July 2006 (paragraph 21 above) which was before the date
on which the new legislation became operational.
The
Court also notes that, as the Government acknowledged, the 2006 Act
does not provide any remedies in respect of proceedings before the
Constitutional Court. The new amendments to the Constitutional Court
Act, which should bear fruit in practice only at the end of 2008
(paragraph 31 above), cannot, in the Court's view, be regarded as
redressing the situation in the present case.
The
Court observes that the 2006 Act includes a special provision under
section 25 addressing cases lodged with the Court before
1 January 2007 in which the violation of the “reasonable
time” requirement had already ceased to exist. Pursuant to that
provision the State Attorney's Office shall offer the applicant a
settlement in respect of just satisfaction within four months of
communication of the application to the Government. Once this
condition has been satisfied and if no settlement has been reached,
it is open to the applicant to lodge a just satisfaction claim with
the domestic courts. The Court further observes that the notion of “a
violation of the right to a trial without undue delay has already
ceased” refers to terminated proceedings (see Grzinčič,
cited above, § 66).
In
the instant case, the Court finds that the applicant had no
possibility of obtaining relief under section 25 of the 2006 Act. The
Court notes in this connection that the impugned proceedings have
continued after 28 September 2006, the day the application
was communicated to the Slovenian Government, and that the State
Attorney's Office has made no proposal to the applicant for a
settlement under section 25 of the 2006 Act (mutatis mutandis,
Grzinčič, § 66).
In conclusion, the Court finds that the Government
have failed to demonstrate that the applicant could obtain relief –
either preventive or compensatory – by having recourse to the
new remedies available under the 2006 Act. The Court therefore notes
that the only remedies at the applicant's disposal were the remedies
available prior to the implementation of the 2006 Act (paragraph 27
above). These remedies were considered ineffective by the Court in
its earlier judgment in Lukenda (cited above, §§ 66-71).
There is nothing in the present case which would lead the Court to
reach a different conclusion from the one in that judgment (see,
mutatis mutandis, Grzinčič, cited
above, § 68).
The
Government's objection must therefore be dismissed. The
Court further notes that the applicant's complaint relating to the
length of the proceedings 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
(a) The parties' submissions
The
Government argued that the proceedings before the Constitutional
Court should not be taken into account when calculating the length of
the proceedings in the present case. They submitted that the
constitutional appeal of 24 August 2001 had been dismissed due
to non-exhaustion of legal remedies and that the applicant's
constitutional appeal of 7 November 2006 had no prospects of
success.
The
Government further maintained that the case was a complex one. The
courts had dealt with it diligently and as promptly as possible.
Referring to Wiesinger v. Austria (judgment of 30 October
1991, Series A no. 213, § 57), the Government
argued that the applicant had availed himself of numerous procedural
means and remedies, which had prolonged the proceedings. Although the
applicant had a right under the national law to use these avenues,
their use should constitute at least an objective fact not capable of
being attributed to the State. Furthermore, the Government argued
that the domestic courts should not, as in the judgment of DeZelak v.
Slovenia (no. 1438/02, 6 April 2006), be blamed for
remitting the case for re-examination. Relying on Bock v. Germany
(judgment of 29 March 1989, Series A no. 150, §
43-44), the Government averred that the national courts were in the
best position to judge whether the case should be remitted for
re-examination.
In
addition, the Government submitted that the hearings had been
adjourned on many occasions because of the applicant or because of
the attempts to reach a settlement between the parties. In the
Government's view, the applicant had not shown the required diligence
in the proceedings and his contribution to the length of the
proceedings had been very high, if not exclusive.
The
applicant argued that the domestic courts were to be blamed for the
delays in the proceedings. He furthermore stressed that the decision
as to whether a hearing should proceed or should be adjourned is made
by the judges and not by the parties to proceedings.
(b) The Court's assessment
(i) Period to be taken into consideration
The
period to be taken into consideration began on 28 June 1994, the date
the Convention entered into force with respect to Slovenia.
As far as the end of the period is concerned, the
“time” whose reasonableness is to be reviewed covers in
principle the entirety of the litigation, including the appeal
proceedings (Deumeland v. Germany, judgment of 29 May
1986, Series A no. 100, § 77). The proceedings further to the
second constitutional appeal are to be taken into account in this
connection since they are, in principle, able to influence the
outcome of the proceedings before the lower courts (see Tričković
v. Slovenia, no. 39914/98, §§ 27-29 and 36-41, 12
June 2001, Šubinski v. Slovenia, no. 19611/04,
§ 69, 18 January 2007, and Antolič v.
Slovenia, no. 71476/01, § 17, 1 June 2006).
The Court notes in this connection that the Government did not claim
that the applicant's second constitutional appeal was wholly
inadmissible on procedural grounds. As regards the substance of the
applicant's complaints submitted to the Constitutional Court, the
Court is not in a position to speculate about the outcome of those
proceedings.
As
regards the first – premature – constitutional appeal,
the Court notes that the Government have failed to explain why it
should have interrupted the proceedings which were at that time
pending before the first-instance court (see paragraphs 12 to 15
above).
Accordingly,
the period to be considered has not yet ended and has therefore
lasted more than thirteen years for four levels of jurisdiction, and
due to the remittal the case has been considered at six instances.
(ii) Relevant criteria
As
to the reasonableness of the length of the proceedings, the Court
reiterates that it 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).
As
regards the nature of the case, the Court notes that the domestic
courts obtained fresh expert reports four times (see paragraphs 9 and
17 above). It could therefore be accepted that the case was of a
certain, though limited, complexity.
Concerning
the applicant's behaviour, the Court notes that the applicant took
some steps that slowed the progress of the proceedings, particularly
as regards the first examination of the case before the
first-instance court. Three hearings held within that period were
adjourned at the applicant's request. In addition, the hearing held
on 9 April 1997 was adjourned so as to give the parties sixty days to
negotiate a settlement, but the applicant informed the court that the
settlement had not been reached only in October 1997 (paragraph 8).
Likewise, the applicant requested the adjournment of the hearing held
on 15 October 2001, during the re-examination proceedings (paragraph
15 above). The Court agrees with the Government (paragraph 49 above)
that some of these adjournments and the resulting delays could have
been avoided had the applicant acted more diligently. It must,
however, add that the decision to adjourn the hearing sine die
was taken by a judge whose responsibility it was to schedule a new
hearing (see, mutatis mutandis, Lesar v. Slovenia,
no. 66824/01, § 31, 30 November 2006).
The
Court further notes that while it could be accepted that the
applicant could have avoided lodging his premature constitutional
appeal (see paragraph 13 above), it has, however, not been explained
by the Government why this fact could have affected the progress of
the main proceedings in any significant way (paragraph 47 above).
As
regards the fact that the applicant made use of all available appeals
with a view to challenging the outcome of the proceedings, it is
noted that he succeeded with his first appeal to the Higher Court
and, as a result, the case was remitted for re-examination. His
remaining appeals have, however, so far been unsuccessful. As the
Government agreed, it cannot be said that the applicant abused his
procedural rights in this respect (paragraph 48). However, as the
Court has held on many occasions, the applicant's use of remedies
should be considered as constituting an objective fact not capable of
being attributed to the respondent State, and this is to be
taken into account when determining whether or not the proceedings
lasted longer than the reasonable time referred to in Article 6 § 1
(see, for example, Lesar, cited above, §§ 28-30).
With
respect to the conduct of the domestic courts, the Court considers
that both at first instance and in the appeal proceedings there were
substantial delays. It notes at least four periods of lack of
activity, for which the State was essentially responsible.
Firstly,
there was a period of more than one year and four months between the
hearings scheduled for 18 September 1995 and 27 January 1997.
Secondly,
it took almost a year for the court to schedule a new hearing
following the adjournment of the hearing of 9 April 1997 and the
applicant's letter informing the court that no settlement had been
reached (see paragraph 8 above).
Thirdly,
in the first set of appeal proceedings before the Maribor Higher
Court, it took more than two years and four months for the
second-instance court merely to decide on the applicant's appeal
(paragraph 12 above).
Finally,
further to the remittal of the case for re-examination, the case was
dormant for more than one year and five months (between
7 December 2001 and 27 May 2003 – see paragraphs
15 and 16 above) and, as a result, two years and seven months had
passed between the first and second hearings (paragraphs 15 and 18
above).
In
all, the proceedings at issue have extended over more than thirteen
years. Although the applicant should have been more diligent in
pursuing his case and despite the fact that the rescheduling of
several hearings can, at least in part, be attributed to him, the
Court notes that a number of delays can be attributed to the courts,
particularly as regards the first-instance proceedings and the first
set of appeal proceedings before the Maribor Higher Court.
In
view of the foregoing and having regard to its case-law on the
subject, the Court finds that there has been a breach of Article 6 §
1.
2. Article 13
The
Government submitted that under the Slovenian law an individual has
at his disposal various legal remedies in respect of alleged breaches
of the “reasonable time” requirement (see paragraphs 27
to 32 above).
The
applicant submitted that the new legislation aimed at providing
remedies in respect of excessive delays – the 2006 Act –
became operational only on 1 January 2007 (paragraph 33 above).
The Court reiterates that the standards of Article 13
require a party to the Convention to guarantee a domestic remedy
allowing the competent domestic authority to address the substance of
the relevant Convention complaint and to award appropriate relief,
although Contracting States are afforded some discretion as to the
manner in which they conform to their obligations under this
provision (see Chahal v. the United Kingdom, judgment of
15 November 1996, Reports of Judgments and Decisions 1996 V,
§ 145). The Court also recalls that the rule of exhaustion of
domestic remedies referred to in Article 35 of the Convention is
based on the assumption, reflected in Article 13 of the Convention –
with which it has close affinity – that there is an effective
remedy available in respect of the alleged breach in the domestic
system (see paragraph 35 above).
In
the present case the Government have failed to show that the
applicant can use any of the new remedies available under the 2006
Act (see paragraphs 40 to 45 above). As regards the remedies
available prior to the implementation of the 2006 Act, the Government
have also failed to submit anything that would lead the Court to a
different conclusion from the one reached in earlier cases in which
these remedies were considered ineffective (see paragraph 45 above
and Lukenda, cited above, §§ 84 to 88)
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 his right to have his case heard within a reasonable time,
as set forth in Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 (fairness) OF
THE CONVENTION
The
applicant complained that the outcome of the proceedings had not been
fair, submitting that the courts had ignored the building permits
obtained by the MTC in 1990 and 1991 (see paragraph 12 above).
The
relevant part of Article 6 § 1 of the Convention reads as
follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
68. The
Court observes that the applicant was able to raise the allegations
concerning the alleged unfairness of the proceedings in his appeals
following the first-instance court's judgments.
However, the proceedings are still pending before the Constitutional
Court (see paragraph 22). It follows that these complaints
are premature and must be rejected under Article 35 §§ 1
and 4 of the Convention for non-exhaustion of domestic remedies.
III. 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. Damage
The applicant claimed 32,259 euros (EUR) in respect of
pecuniary damage sustained as a result of the construction of a
motorway near real estate he owned.
The
applicant further claimed EUR 20,864 in respect of non-pecuniary
damage sustained as a result of the excessive delays and allegedly
unfair proceedings.
The
Government argued that the applicant's claim in respect of pecuniary
damage was totally unfounded. As regards the non-pecuniary damage
claimed in respect of the alleged violation of the “reasonable
time” requirement, the Government averred that this claim was
not substantiated by sufficient evidence. They further submitted that
the finding of a violation should represent sufficient just
satisfaction in respect of the complaint concerning the length of the
proceedings. Alternatively, the Court should determine the
appropriate amount on the basis of its case-law.
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 considers that the applicant must have
sustained non-pecuniary damage in respect of the excessive length of
the proceedings and of the lack of an effective remedy. Ruling on an
equitable basis and taking into account the applicant's contribution
to the length of the proceedings (paragraphs 54 to 60 above), it
awards him EUR 3,500 under that head.
B. Costs and expenses
The
applicant also claimed EUR 8,013 for costs and expenses incurred
before the domestic courts. In addition, he claimed the reimbursement
of the costs and expenses incurred before the Court, but did not
specify an amount.
The
Government submitted that the expenses incurred before the domestic
courts were not related to the applicant's complaints before the
Court. As to the claim for expenses incurred before the Court, the
Government submitted that an amount had not been specified. It asked
the Court to decide on this claim on the basis of its case-law.
Under
the Court's case-law, an applicant is entitled to the reimbursement
of his costs and expenses only in so far as it has been shown that
these have been actually and necessarily incurred and are reasonable
as to quantum. In the present case, regard being had to the
information in its possession and the above criteria, the Court
rejects the claim for costs and expenses in the domestic proceedings
and considers that the applicant, who was not represented by a
lawyer, must have had to bear expenses in connection with the
proceedings before the Court. The Court considers it reasonable to
award him the sum of EUR 150 in that connection (see, for example,
Bauer v. Slovenia, no. 75402/01, § 26, 9
March 2006, and Vidic v. Slovenia, no. 54836/00,
§ 31, 3 August 2006).
C. 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 complaints concerning the length of
the proceedings and the effectiveness of the remedies available in
that respect admissible and the remainder of the application
inadmissible;
Holds that there has been a violation of Article
6 § 1 of the Convention in respect of the length of the
proceedings;
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 3,500
(three thousand five hundred euros) in respect of non-pecuniary
damage and EUR 150 (one hundred and fifty 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;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 13 December 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Corneliu Bîrsan
Deputy
Registrar President
