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OBERWALDER v. SLOVENIA - 75567/01 [2007] ECHR 65 (18 January 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/65.html
Cite as:
[2007] ECHR 65
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THIRD
SECTION
CASE OF OBERWALDER v. SLOVENIA
(Application
no. 75567/01)
JUDGMENT
STRASBOURG
18 January
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 Oberwalder 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,
Mr V.
Zagrebelsky,
Mrs A. Gyulumyan,
Mr David Thór
Björgvinsson,
Mrs I. Ziemele, judges,
and Mr V.
Berger, Section Registrar,
Having deliberated
in private on 12 December 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 75567/01) 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 three Slovenian nationals, Mr JoZe Oberwalder, Mr JoZe
Oberwalder junior (“jr.”) and Mr Andrej Oberwalder (“the
applicants”), on 10 February 2000.
The
Slovenian Government (“the Government”) were represented
by their Agent, Mr L. Bembič, State Attorney-General.
The
applicants alleged inter alia under Article 6 § 1 of the
Convention that the length of the civil proceedings before the
domestic courts to which they were a party was excessive.
On
24 March 2005 the Court
decided to communicate the complaint concerning the length of the
second set of proceedings to the Government and to declare the
remainder of the application inadmissible. Under Article 29 §
3 of the Convention, it decided to examine the merits of the
remaining complaint at the same time as its admissibility.
THE FACTS
The
applicants were born in 1931, 1959 and 1967 respectively and live in
DomZale.
The
facts of the case, as submitted by the parties, may be summarised as
follows.
On
8 July 1970 and 11 March 1971 respectively, four plots of land were
sold to the Municipality by H.O., the late wife of the first
applicant J.O. and the mother of the second and third applicants,
J.O. jr. and A.O.
On
5 July 1973 and 4 June 1974, respectively, three plots of land were
sold to the Municipality by the second applicant (J.O. jr.) and his
brother (A.O.), the third applicant.
On
23 November 1973 and 10 September 1976 two plots of land were sold to
the Municipality by J.O.
On
6 May 1992 the applicants lodged a request for the return of nine
plots of land with the DomZale Administrative Unit on the basis of
the 1991 Denationalisation Act, claiming that they had signed
the contracts of sale under duress which was tantamount to
expropriation.
On
7 June 1993 the Administrative Unit transferred their request to the
DomZale Local Court (Okrajno sodišče v
DomZalah) as the competent authority.
On
13 July 1994 a hearing was held. The court requested the applicants
to complete their request and submit further documents.
On
28 September and 29 November 1994, 16 February 1995, 23 March,
23 May and 17 July 1995 the court sent a letter to the applicants'
lawyer, reiterating its request. The court also informed the new
lawyer representing the applicants that it had received no reply.
On
18 September 1997 the court summoned the applicants to complete their
request within 30 days, or else it would reject it or consider it
withdrawn.
On
3 November 1997 the applicants filed the requested document through
their representative and enlarged their claim, directing it also
against the Slovenian Compensation Corporation (the “SCC”).
On 20 January 1998 the latter replied to the applicants.
Further
to their reply, on 10 December 1998, 11 February and 26 April
1999 the court requested the lawyer to submit further documents.
On
14 May 1999 the applicants through their representative filed the
requested documents which were forwarded to the SCC. The latter
replied on 5 July 1999.
On
7 February 2001 the applicants specified the amount of compensation
claimed.
On 14
February 2001 a hearing was held. Since some of the requested
documents were still missing, the applicants' representative obliged
himself to reply to the SCC's statements.
On
20 February 2001 the Municipality of DomZale filed a reply.
On 14
September 2001, further to the court's additional request, the
applicants' representative filed submissions.
On
13 December 2001, after a hearing, the Local Court rejected the
claim.
On
28 January 2001 the applicants lodged an appeal with the Ljubljana
Higher Court (Višje sodišče).
On
15 January 2003 the Ljubljana Higher Court rejected their appeal. On
6 February 2003 the decision was served on the applicants. That
decision became final.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicants complained about the excessive length of the civil
proceedings. They 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...”
A. Admissibility
The
Government pleaded non-exhaustion of domestic remedies.
The
applicants 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 applicants' 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
period to be taken into consideration began on 28 June 1994, the day
when the Convention entered into force with respect to Slovenia, and
ended on 6 February 2003, the day the Ljubljana Higher Court's
decision was served on the applicants. It therefore lasted about 8
years and 7 months for 2 levels of jurisdiction.
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 applicants and the relevant authorities and what
was at stake for the applicants in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
In
the Government's view, the proceedings at stake were rather complex,
since denationalisation claims are professionally demanding for a
judge. The applicants themselves also contributed to their
complexity, course and duration because they belatedly replied to the
court's requests to submit the documents. In addition, in 1998 they
enlarged their claim. The domestic courts could not be reproached
negligence in dealing with the proceedings in question. Moreover, the
second-instance judge treated the case with priority. Delays in
examining the case occurred primarily for the reasons for which the
applicants were responsible. The Government contend that a decision
on the restitution of ownership rights is undoubtedly of great
importance to the applicants. However, they should have exercised
their procedural rights with greater care
The
applicants contested those arguments.
33.
The Court notes that the period after 28 June 1994, when the
Convention entered into force for Slovenia, until 3 November 1997
when the applicants finally replied to the court's repeated requests
is entirely incumbent on the applicants. Similarly, the periods
between 10 December 1998 and 14 May 1999 and between 14
February and 14 September 2001 are also attributable to the
applicants. Therefore, the period which could be attributed to the
domestic courts amounts to approximately 4 years and 2 months.
Nevertheless,
having examined all the material submitted to it, and having regard
to its case-law on the subject, the Court considers that in 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.
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. Damage
The
applicants claimed non-pecuniary damage for the suffering sustained
in the course of the proceedings, but left the matter to the Court's
discretion.
In
addition, they claimed compensation for the material loss amounting
to 57,200 DEM, which would be the value of the bonds of the Slovenian
Compensation Corporation for the expropriated land,
plus the interest, in respect of non-pecuniary damage.
The
Government contested these claims.
40. 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, the Court considers that the applicants must
have sustained non-pecuniary damage. Ruling on an equitable basis, it
awards them EUR 2,000 under that head.
B. Costs and expenses
The
applicants also claimed reimbursement of the costs of their attorney,
without specifying the amount.
The
Government contested their claim.
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. 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 applicants the sum of EUR 200
for the proceedings before the Court.
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 remainder of the application
admissible;
Holds that there has been a violation of Article
6 § 1 of the Convention;
Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,000 (two
thousand euros) in respect of non-pecuniary damage and EUR 200 (two
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;
4. Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 18 January 2007 pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Vincent
Berger John Hedigan
Registrar President
