(Application no. 35463/02)
8 January 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 Umek v. Slovenia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Boštjan M. Zupančič,
Ann Power, judges,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 2 December 2008,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
Several hearings were held in the above proceedings.
Between 9 January 1996 and 27 May 1997 the court held 7 hearings.
On 27 May 1997 the renamed Ljubljana Labour and Social Court (Delovno in socialno sodišče v Ljubljani) delivered an interim judgment in which it found SZ liable for the damage caused by the work-related disease – bronchial asthma.
On 18 December 1997 the court allowed the appeal on the grounds, inter alia, that the interim judgment contained insufficient reasoning, and remitted the case to the first-instance court for re-examination.
On 23 March 1999 the first-instance court delivered an interim judgment in which it found SZ liable for 50% of the damages suffered by the applicant due to the asthma.
On 19 November 1999 the Higher Labour and Social Court delivered a judgment rejecting the applicant's claim for compensation.
On 10 October 2000 the Supreme Court allowed the applicant's appeal on the grounds that the law had been wrongly applied, with the result that the facts had not been established sufficiently. It quashed the lower courts' judgments and remitted the case to the first-instance court for re-examination.
Hearings were held on 20 June, 10 October and 5 December 2001 and 31 January 2002.
On 31 January 2002 the Ljubljana Labour and Social Court delivered an interim judgment in which it found SZ liable for 70% of the damage suffered by the applicant due to the asthma. The judgment was served on the applicant on 25 February 2002.
On 26 September 2002 the Higher Labour and Social Court allowed the appeals on the grounds of, inter alia, insufficient reasoning and again remitted the case to the first-instance court for re-examination.
A request lodged by SZ on 10 February 2004 for the expert to stand down was rejected by the court on 18 March 2004.
On 4 May 2004 the court received a reply from the expert to the defendant's objections to the findings in the report.
On 14 September 2004 the court held a hearing and delivered a judgment rejecting the applicant's claim which was served on the parties on 21 October 2004.
On 27 January 2005 the Higher Labour and Social Court rejected the appeal.
On 17 January 2006 the Supreme Court delivered a judgment rejecting the appeal on points of law. This judgment was served on the applicant on 25 January 2006.
On 3 July 2006 the Constitutional Court rejected her appeal after finding that she should have made a claim for damages under Article 26 of the Slovenian Constitution.
II. RELEVANT DOMESTIC LAW
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.”
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 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...”
“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.”
1. Article 6 § 1
(a) The parties' arguments
(b) The Court's assessment
41. The Court notes that the Convention entered into force with respect to Slovenia on 28 June 1994. On that date the applicant's request for the re-opening of the case was pending before the courts. The decision to grant her request was upheld on 17 October 1995 by the Higher Labour and Social Court and at that point the case was effectively re-opened (see paragraph 11 above). Having regard to its case-law on the subject (see, mutatis mutandis, Sablon v. Belgium, no. 36445/97, §§ 86-89 and 92, 10 April 2001, and Löffler v. Austria, no. 30546/96, § 19, 3 October 2000) the Court considers that the relevant period started to run with the decision of 17 October 1995. The proceedings ended on 25 January 2006, the day the Supreme Court's decision was served on the applicant (see paragraph 22 above). They therefore lasted about ten years and three months. The case was considered at three levels of jurisdiction. However, as a result of the remittals, ten instances were involved in the examination of the case in the period within the Court's temporal jurisdiction.
2. Article 13
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
51. The Court notes that the applicant's complaints concerning the alleged unfairness and lack of impartiality in the proceedings are of a general character and are not supported by concrete evidence. Having regard to the foregoing and the documents in the case-file, it considers that the proceedings before the domestic courts in the instant case disclose no appearance of a failure to observe the requirements of fairness or impartiality under Article 6 of the Convention. It follows that this part of the application must be rejected as being manifestly ill-founded under Article 35 §§ 3 and 4 of the Convention.
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, EUR 6,400 (six thousand four hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage and EUR 2,000 (two thousand 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 8 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep