by Ian WRAIGHT
The European Court of Human Rights (Third Section), sitting on 7 July 2009 as a Chamber composed of:
Boštjan M. Zupančič,
Luis López Guerra,
Ann Power, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 20 April 2005,
Having regard to the Government’s settlement proposals made to the applicant,
Having regard to the applicant’s response to the Government’s submissions,
Having deliberated, decides as follows:
1. The applicant, Mr Ian Wraight, is a British national who was born in 1964 and lives in Podgorci. The Slovenian Government (“the Government”) were represented by their Agent, Mr Lucijan Bembič, State Attorney-General.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 4 December 1997 the applicant instituted civil proceedings against a company in Ljubljana District Court seeking payment of approximately 700 euros.
4. After several hearings, the court delivered judgment on 23 May 2002, upholding the applicant’s claim in part.
5. In the meantime, in December 2001, the applicant had complained to the Constitutional Court but had received a reply that available remedies had to be exhausted before a constitutional appeal could be lodged.
6. On 17 June 2002 the applicant lodged an appeal, which was rejected by a judgment of the Ljubljana Higher Court on 11 December 2002.
7. On 7 February 2003 the applicant lodged an appeal on points of law, which was rejected by the Supreme Court on 21 October 2004. This judgment was served on the applicant on 29 November 2004.
B. Relevant domestic law
8. The following provisions of the Constitution of the Republic of Slovenia (Ustava Republike Slovenije, Official Gazette nos. 33/91 and 69/04) are relevant to the present case:
“Article 14 (Equality before the Law)
In Slovenia everyone shall be guaranteed equal human rights and fundamental freedoms irrespective of national origin, race, sex, language, religion, political or other conviction, material standing, birth, education, social status, disability or any other personal circumstance.
All are equal before the law.
Article 22 (Equal Protection of Rights)
Everyone shall be guaranteed equal protection of rights in any proceeding before a court and before other state authorities, local community authorities and bearers of public authority that decide on his rights, duties or legal interests.
Article 23 (Right to Judicial Protection)
Everyone has the right to have any decision regarding his rights, duties and any charges brought against him made without undue delay by an independent, impartial court constituted by law.
Only a judge duly appointed pursuant to rules previously established by law and by judicial regulations may judge such an individual.
Article 160 (Powers of the Constitutional Court)
The Constitutional Court decides:
- constitutional appeals concerning a violation of human rights and fundamental freedoms by individual acts;
9. As regards the protection of the right to a trial within a reasonable time, 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.
10. 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 an infringement of the right to a trial without undue delay has already ceased and the party concerned has 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 made by the State Attorney’s Office. The State Attorney’s Office shall consider the [party’s] proposal as soon as possible and within 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 concerned fail to negotiate an agreement within four months of the date on which the party filed his or her proposal, he or she may bring an action before the competent court under this Act. The party may bring an action within six months of receiving a reply 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 [the proposed] 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.”
11. The applicant complained under Article 6 of the Convention that the proceedings had been unfair and unreasonably long. His complaint of unfairness mainly concerned the manner in which the first-instance proceedings were conducted. In particular, he submitted that insufficient time had been given for his interpreter to translate the oral submissions, that the records of the hearings were inaccurate and that his submissions at the court had been ignored.
12. Under Article 14 the applicant complained that he had been discriminated against in the proceedings on the grounds of his language, ethnicity and status, which he described as the fact that he was not a Slovenian lawyer.
13. Lastly, the applicant complained under Article 13 that the remedies he had used had not been effective in protecting his Convention rights. He explained that he had not availed himself of a constitutional appeal after receiving the Supreme Court’s judgment because, even if such an appeal had been successful, the constitutional court would not have been able to offer any redress for his complaints while he would have incurred further expenses. He also complained of the statutory time-limit for lodging a constitutional appeal, which was 60 days from the date of service of the decision concerned, and submitted that he would, in any event, have lodged an application with the Court.
A. Complaint under Article 6 § 1 concerning length of proceedings
14. The Court notes that the Government were informed of the application on 9 July 2008 (Article 54 § 2(a) of the Rules of Court) and in view of the 2006 Act were requested to provide information on the settlement procedure concerning the length-of-proceedings complaint. Subsequently, the applicant received the State Attorney’s Office’s settlement proposal of 15 October 2008 under section 25 of the 2006 Act. This proposal included an acknowledgment of a violation of the right to a trial within a reasonable time, but did not offer monetary compensation as the applicant had made no request to that effect. The applicant was invited to make a counter proposal, which he did on 5 December 2008. He also requested monetary compensation. On 10 December 2008, the State Attorney’s Office replied to the applicant offering an acknowledgment of a violation and monetary compensation for non-pecuniary damage.
15. The Court notes that, after receiving the settlement proposals under section 25 of the 2006 Act, the applicant was in a position either to negotiate a settlement with the State Attorney’s Office or, if that proved unsuccessful, to lodge a “claim for just satisfaction” in accordance with the relevant provisions of the 2006 Act (see paragraph 10 above). The latter has been considered by the Court to constitute an appropriate means of redressing a breach of the reasonable-time requirement of Article 6 that has already occurred (see Pohlen v Slovenia (dec.), no. 28457/03, §§ 40-43, 3 June 2008).
16. The Court refers to Article 37 of the Convention, the relevant part of which reads:
“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”
17. Having regard to the foregoing, the Court considers that it is no longer justified to continue with the examination of the application with regard to the length-of-proceedings complaint and that this part of the application should be struck out of the list of cases in accordance with Article 37 § 1 (c). In reaching this conclusion, the Court has taken into account its competence under Article 37 § 2 of the Convention to restore a case to its list of cases if it considers that the circumstances justify such a course.
B. Complaints concerning Article 6 § 1 (fairness) and 14 of the Convention
18. The Court reiterates that under Article 35 § 1 of the Convention it may only deal with the matter after all domestic remedies have been exhausted (see NA. v. the United Kingdom, no. 25904/07, § 88, 17 July 2008). It further notes that the applicant could have invoked the complaints of procedural unfairness and discrimination in proceedings before the Constitutional Court. However, he declined to lodge a constitutional appeal after receiving the Supreme Court’s judgment, considering that it would serve no purpose.
19. The Court points out that in cases against Slovenia applicants are normally required to avail themselves of a constitutional appeal before lodging an application with the Court (see, mutatis mutandis, Šubinski v. Slovenia, no. 19611/04, § 89, 18 January 2007, and TomaZič v. Slovenia, no. 38350/02, § 68, 13 December 2007). It notes that the applicant has not presented any convincing arguments which would require the Court to distinguish this case from its established jurisprudence. It would add that the existence of mere doubts as to the prospects of success of a particular domestic remedy, which is not obviously futile, is not a valid reason for failing to exhaust it (see, among many other authorities, MPP Golub v. Ukraine (dec.), no. 6778/05, 18 October 2005).
20. It follows that domestic remedies have not been exhausted as required by Article 35 § 1 of the Convention, since the applicant has failed to raise – either in form or in substance – in a constitutional appeal, lodged in accordance with the applicable procedural requirements, the above complaints made to the Court. This part of the application should therefore be declared inadmissible in accordance with Article 35 § 4 of the Convention.
C. Complaint under Article 13 of the Convention
21. As regards the applicant’s complaint under Article 13, the Court considers in the light of all the material in its possession, and in so far as the matters complained of are within its competence, that this part of the application does not disclose any appearance of a violation of the Convention. It follows that it is inadmissible under Article 35 § 3 as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
Decides to strike the part of the application concerning length of the proceedings out of its list of cases;
Declares inadmissible the remainder of the application.
Santiago Quesada Josep Casadevall Registrar President