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ACIKGOZ v. SLOVENIA - 28936/02 [2008] ECHR 114 (7 February 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/114.html
Cite as:
[2008] ECHR 114
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THIRD
SECTION
CASE OF ACIKGÖZ v. SLOVENIA
(Application
no. 28936/02)
JUDGMENT
STRASBOURG
7 February
2008
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 Acikgöz v. Slovenia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Corneliu
Bîrsan,
President,
Boštjan
M. Zupančič,
Elisabet
Fura-Sandström,
Alvina
Gyulumyan,
Egbert
Myjer,
David
Thór Björgvinsson,
Ineta
Ziemele, judges,
and
Santiago Quesada, Section
Registrar,
Having deliberated in private on 17
January 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 28936/02) 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 Turkish national, Ali Acikgöz
(“the applicant”), on 8 January 2001.
The
applicant was represented by the Verstovšek
lawyers. 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 had been
excessive. 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
18 October 2006 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.
In
accordance with Article 36 § 1 of the Convention and Rule 44 of
the Rules of Court, the Registrar informed the Government of Turkey
of their right to submit written comments. They did not indicate that
they wished to exercise this right.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Criminal proceedings
The
applicant, Mr Ali Acikgöz, is a citizen of Turkey who was born
in 1945 and lives in Austria.
On
5 April 1987 the applicant was involved in a serious car accident in
which one person died.
Consequently,
criminal proceedings were instituted against the applicant and, on 7
April 1987, the Kranj Basic Court (Temeljno sodišče v
Kranju) ordered him to pay a bail of 5,000 DEM.
During
the investigation, the investigating judge acquired forensic expert
reports and examined a witness.
On
13 April 1988 the Public Prosecutor filed an indictment against
the applicant for causing the accident by negligent driving. On
14 November 1991 the Kranj Basic Court dismissed the
applicant's objection against the indictment.
On
30 December 1991 the applicant assigned a new lawyer to represent him
in the proceedings and informed the court about his address in
Austria.
On
30 June 1992, a hearing was cancelled due to the applicant's absence.
Subsequently, the court examined several witnesses in the presence of
the applicant's representative.
On
20 October 1992 the applicant's lawyer proposed that the next hearing
be held in the absence of the applicant.
On
28 March 1994, further to the court's request, the applicant's lawyer
informed the court that he had lost contact with the applicant. On
30 March 1994 the court asked the local police to inquire about
the applicant's address. The police did not reply.
On
28 June 1994 the Convention entered into force in respect of
Slovenia.
On
1 February 1995 the Kranj District Court (OkroZno sodišče
v Kranju) gained jurisdiction in the case due to the reform of
the Slovenian judicial system. The case was assigned to a judge, who
did not deal with it.
On
26 August 1996 the case was assigned to a new judge.
On
14 November 1996 the Kranj District Court inquired about the
applicant's address. The lawyer knew that the applicant had moved to
Turkey but was not aware of his new address. It appears that the
applicant notified his lawyer about his address on 30 December 1996.
On
14 May 1998 the applicant was summoned for a hearing through an
assistance of the Ministry of Justice. On 27 October 1998 a
hearing was held in the absence of the duly
summoned applicant. The only witness examined at the hearing
referred to his testimony given in the earlier stages of the
proceedings and was not asked any further questions. No other
evidence was taken at the hearing. The court subsequently convicted
the applicant. A written judgment was served on him on 17 November
1998.
On
19 November 1998 the applicant appealed to the Ljubljana Higher Court
(Višje sodišče v Ljubljani).
On
19 October 1999 the Ljubljana Higher Court acquitted the
applicant. The judgment was served on the applicant on 30
December 1999.
On
31 December 1999 the applicant asked the Kranj District Court to
reimburse him the bail (see paragraph 8 above) together with the
default interest and sought reimbursement of the costs and expenses
he had incurred in the proceedings.
On
23 February 2000 the Kranj District Court ordered the reimbursement
of the costs and expenses.
On
10 March 2000 the Kranj District Court, relying on section 198 of the
Criminal Procedure Act (see paragraph 30 below), ordered the
reimbursement of the bail, but refused to reimburse the interests.
On
15 March 2000 the applicant appealed against that decision.
On
11 May 2000 the Ljubljana Higher Court rejected the appeal. The
decision was served on the applicant on 29 August 2000.
B. Civil proceedings concerning the reimbursement of the interests
On
19 March 2001 the applicant instituted civil proceedings in the
Ljubljana Local Court (Okrajno sodišče v Ljubljani)
seeking reimbursement of the interests incurred in respect of the
bail paid in 1987. The proceedings are currently pending on appeal.
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 Journal, No. 49/2006) became operational on 1 January
2007. Under its sections 1 and 2, the right to a trial within a
reasonable time is guaranteed for a party to court proceedings, a
participant under the Act governing non-contentious proceedings and
an injured party in criminal proceedings.
Section
25 lays down the following transitional rules in relation to
applications already pending before the Court:
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 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 after 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 after 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 after receiving the
State Attorney's Office reply 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.”
Section
198 of the Criminal Procedure Act (Zakon o kazenskem postopku,
Official Gazette no. 63/94) provides that the bail should be
reimbursed once the criminal proceedings terminate with a final
decision or a final judgment.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE
CONVENTION
The
applicant complained about the excessive length of the criminal
proceedings. He relied on Article 6 § 1 of the Convention, which
reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
In
substance, the applicant further complained that the remedies
available for the excessive length of 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, in particular
after the implementation of the Act on the Protection of the Right to
a Trial without undue Delay (the “2006 Act”) from 1
January 2007.
The
applicant contested that argument, claiming that the remedies
available were not effective.
The
Court notes that section 25 of the 2006 Act explicitly refers to
proceedings before international courts and provides for certain
remedies in cases of domestic proceedings which had terminated before
1 January 2007. However, the Court found in the Grzinčič
judgment that the conditions laid down in that section were not
fulfilled as regards applications concerning terminated proceedings
which had been notified to the Slovenian Government before 1 January
2007, such as the present one (see Grzinčič v. Slovenia,
no. 26867/02, § 67, 3 May 2007).
The
Court therefore notes that the present application is similar to that
examined in the relevant part of the Grzinčič
judgment (cited above, § 68), in which 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 finds that the Government have not submitted any convincing
arguments which would require the Court to depart from its
established case-law.
The
Court further notes that the complaints are not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. Nor are they inadmissible on any other grounds. They must
therefore be declared admissible.
B. Merits
1. Article 6 § 1
a) Period to be taken into consideration
The
period to be taken into consideration began on 28 June 1994, the day
when the Convention entered into force with respect to Slovenia.
However, in order to assess the reasonableness of the length of time
in question, the Court will have regard to the stage reached in the
proceedings on 28 June 1994 (see, among other authorities, Humen
v. Poland [GC], no. 26614/95, § 59, 15 October 1999).
As
regards the end of the period concerned, the Government maintained
that it had ended on 29 August 2000, when the applicant had received
the Ljubljana Higher Court's decision concerning the reimbursement of
the bail and related interest in the criminal proceedings.
The
Court, having regard to its findings in Mamič v. Slovenia
(no. 2) (no. 75778/01, §§ 25-30, 27
July 2006), sees no reason to disagree. It will limit itself to
observing that the issue of the bail was determined in the context of
criminal proceedings under section 198 of the Criminal Procedure Act,
under which the bail must be reimbursed when the criminal proceedings
are terminated (see paragraph 30 above). Thus, the proceedings
culminated on 29 August 2000 when the Ljubljana Higher Court's
decision was served on the applicant (see paragraph 26 above).
As
regards the civil proceedings concerning the reimbursement of the
interest, the Court notes that neither the applicant nor the
Government argued that they should have been taken into account when
calculating the relevant period. The Court further notes that these
proceedings were instituted separately, before a different court and
on the basis of the legislation governing civil disputes. Hence, the
Court will only examine the length of the criminal proceedings which,
as noted above, ended on 29 August 2000.
The
period to be taken into consideration therefore lasted six years and
two months. In that period the merits of the case and, subsequently,
the issue of the bail were considered at two instances each.
b) The reasonableness of the length of proceedings
The
Government argued that the applicant's lack of cooperation in the
proceedings contributed to the delays and that the applicant was not
available to his lawyer in the period between 17 February 1994 and
30 December 1996, which matched the period of the reorganization
of the judicial system.
The
applicant contested the Government's arguments.
The
Court recalls that 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 other authorities,
Klamecki v. Poland, no. 25415/94, § 87, 28 March
2002).
The
Court reiterates that Article 6 does not require the applicant
actively to co-operate with the judicial authorities in the criminal
proceedings. Nonetheless, the applicant's conduct may constitute an
objective fact, not capable of being attributed to the respondent
State, which 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, mutatis mutandis, Eckle v.
Germany, judgment of 15 July 1982, Series A no. 51, §
82, and Šubinski v. Slovenia, no. 19611/04, § 83,
18 January 2007).
In
the present case, the Court considers that the issue at stake did not
present special difficulties with regard to facts or law. In
addition, the Court notes that only one hearing was held in the
period under the Court's temporal jurisdiction (paragraph 19 above)
and that no important steps to obtain evidence appears to have been
taken in that period. While it is true that the applicant failed to
appear at the mentioned hearing and was unavailable for certain
period of time, the Government failed to show the impact this fact
had on the first-instance proceedings, which had lasted over four
years and four months in the relevant period. In this connection, the
Court observes that further to the ratification date (28 June 1994)
the first attempt to reach the applicant was made only on 14 November
1996 (paragraph 18 above). Moreover, although the applicant's address
was known since 30 December 1996, the hearing in the case was
scheduled only in May 1998 (see paragraphs 18 and 19 above).
In these circumstances, the Court considers that the length of the
proceedings, in particular before the first-instance court, 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 Grzinčič,
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 his right to have his 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. Damage
The
applicant claimed 50,000 euros (EUR) in respect of non-pecuniary
damage. The applicant also claimed that he had suffered a financial
loss because he had been unable to use the funds paid as a bail
through the long period of time.
The
Government contested the claim.
As
far as the applicant's claim may relate to pecuniary damage, the
Court notes that the applicant did not specify it. The Court further
observes that, in any event, the proceedings instituted with a view
to determining the applicant's entitlement to the interest are
currently pending before the second-instance court (see above
paragraph 27). The Court therefore rejects the claim for pecuniary
damage, but considers that the applicant must have sustained
non-pecuniary damage as a result of the length of the criminal
proceedings. Ruling on an equitable basis, it awards him 1,200 EUR
under this head.
B. Costs and expenses
The
applicant also claimed approximately 1,005 euros (EUR) for the costs
and expenses incurred before the Court, in particular for the
lawyer's fees which were specified in the documents submitted to the
Court by his lawyer.
The
Government argued that the claim was too high.
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 full sum claimed.
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 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 1,200 (one thousand two hundred euros) in respect of
non-pecuniary damage and EUR 1,005 (one thousand and five 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 7 February 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Corneliu Bîrsan
Registrar President
