(Application no. 33946/03)
21 July 2009
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 Lesjak v. Slovenia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Boštjan M. Zupančič,
Luis López Guerra, judges,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 30 June 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. The main proceedings
B. The proceedings under the 2006 Act
II. RELEVANT DOMESTIC LAW
Section 6 - Decision on supervisory appeal
“(1) If the supervisory appeal is manifestly unfounded having regard to the timetable for resolving the case concerned by the supervisory appeal, the president of the court shall dismiss the appeal by a ruling.
(2) If the supervisory appeal does not contain all the requisite elements referred to in section 5(2) of this Act, the president of the court shall dismiss it by a ruling. No appeal shall lie against that ruling.
(3) If no ruling as provided for in paragraphs 1 or 2 of this section is given, the president of the court shall, as part of his judicial management powers under the Judicature Act, immediately request the .... judge or president of a court panel ('the judge') to whom the case has been assigned for resolution to submit a report indicating the reasons for the duration of the proceedings not later than fifteen days after receiving the request of the president of the court or after obtaining the file, if necessary for drawing up the report. The report shall include a declaration in respect of the criteria referred to in section 4 of this Act and an opinion on the time-limit within which the case may be resolved. The president of the court may also require the judge to submit the case file if he considers that, in the light of the allegations of the party indicated in the supervisory appeal, its examination is necessary.
(4) If the judge notifies the president of the court in writing that all relevant procedural measures will be performed or a decision issued within a time-limit not exceeding four months following the receipt of the supervisory appeal, the president of the court shall inform the party thereof and thus conclude the consideration of the supervisory appeal.
(5) If the president of the court establishes that in view of the criteria referred to in section 4 of this Act the court is not unduly protracting the decision-making in the case, he shall dismiss the supervisory appeal by a ruling.
(6) If the president of the court ... in view of the criteria referred to in section 4 of this Act, establishes that the court is unduly delaying the decision-making in the case, he shall, depending on the status and nature of the case and by a ruling, order a deadline for the performance of certain procedural measures, and may also order that the case be resolved as a priority owing to the circumstances of the case, particularly if the matter is urgent. If he orders that appropriate procedural measures be performed by the judge, he shall also set the time frame for their performance, which shall be no less than fifteen days and no longer than six months, and the appropriate deadline for the judge to report on the measures performed.
(7) If the president of the court establishes that the undue delay in decision-making in the case is attributable to an excessive workload or an extended absence of the judge, he may order that the case be reassigned. He may also propose that an additional judge be assigned to the court or order other measures in accordance with the Judicial Service Act.
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 on the grounds stated in section 5(1) of this Act with the court hearing the case.
(3) The party may lodge an motion for a deadline within fifteen days of receiving the ruling or after expiry of the time-limits provided for in paragraph 1 of this section.”
“(1) If the supervisory appeal lodged by the party has been upheld or a motion for a deadline has been lodged, the party may claim just satisfaction under the present Act.
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 ('the president of the court').
Section 9 - Competence for decision-making
(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.
(4) Other judges may be assigned by the annual schedule of allocation to act in place of or together with the presidents of courts referred to in previous paragraphs for decision-making on motions for a deadline.”
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 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 ...”
1. The parties' arguments
2. The Court's assessment
(a) Assessment of the remedies in respect of the length of proceedings before the Supreme Court
46. Notwithstanding the above conclusion, the Court notes that the present application does not concern merely the Supreme Court proceedings, but a situation which has developed over a long period involving three levels of jurisdiction. Regardless of the effect the above acceleratory remedies would have on the proceedings before the Supreme Court, had the applicant used them, the Court does not consider that they could have had any significant effect on the length of the proceedings as a whole (see Holzinger v. Austria (no. 1), no. 23459/94, § 22, ECHR 2001 I, and Bako v. Slovakia (dec.), no. 60227/00, 15 March 2005).
(b) Assessment of the remaining remedies available to the applicant
“50. .... because of this condition, those who believe that they have suffered a violation of their right to a trial within a reasonable time may be obliged to wait even further before being able to seek relief. Therefore, ..., the Court finds it indispensable that the proceedings, which have already been long, are finally resolved particularly promptly following the exhaustion of the accelerative remedies. Indeed, it cannot be ruled out that the question of a reasonably prompt access to a just satisfaction claim will affect whether this remedy, alone or in combination with the accelerative remedies, is effective in respect of the delays which had already occurred (see Mifsud, cited above, and, mutatis mutandis, Scordino, cited above, § 195).”
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
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.”
III. 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.”
B. Costs and expenses
C. 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, the following amounts:
(i) EUR 4,800 (four thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 600 (six hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(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 21 July 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall