by Helena KOZINA
The European Court of Human Rights (Third Section), sitting on 10 March 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 23 November 2004,
Having regard to the Government's submissions and the friendly settlement reached in respect of the length of the proceedings,
Having regard to the applicant's response to the Governments submissions,
Having deliberated, decides as follows:
1. The applicant, Ms Helena Kozina, is a Slovenian national who was born in 1944 and lives in Radeče. 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 12 June 1998 Ms Kozina instituted civil proceedings in the Nova Gorica District Court concerning separation of common property following her divorce from her partner. She claimed that 55 per cent of their common property belonged to her, including the apartment they had lived in before she moved out.
4. On 26 April 2002 the Nova Gorica District Court issued a judgment, in which it established the applicant's share of the common property.
5. On 3 June 2002 the applicant appealed to the Koper Higher Court, claiming that the first-instance court had not accurately assessed what part and which items of the common property belonged to her.
6. On 25 March 2003 the Koper Higher Court upheld the judgment of the first-instance court.
7. On 3 June 2004 the Supreme Court dismissed the appeal on points of law lodged by the applicant. On 15 July 2004 the judgment was served on the applicant.
B. Relevant domestic law
8. 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.
9. Section 25 lays down the following transitional rules in relation to the 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 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 of the State Attorney's Office. The State Attorney's Office shall decide on the 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 fail to negotiate an agreement within four months of 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 of 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.”
10. The relevant provisions concerning just satisfaction provide as follows:
Section 15 - Just satisfaction
(2) Just satisfaction shall be provided by:
i. payment of monetary compensation for damage caused by an infringement of the right to a trial without undue delay;
ii. a written statement from the State Attorney's Office that the party's right to a trial without undue delay has been infringed;
iii. the publication of a judgment that the party's right to a trial without undue delay has been infringed.”
Section 16 - Monetary compensation
“(1) Monetary compensation shall be payable for non-pecuniary damage caused by an infringement of the right to a trial without undue delay. Strict liability for any damage caused shall lie with the Republic of Slovenia.
(2) Monetary compensation for individual finally decided cases shall be granted in amounts from 300 to 5,000 euros.”
Section 17 – Written statement
“(1) Given the circumstances of the case, the State Attorney's Office may, by agreement with the party under Article 19 of this Act and taking account of criteria referred to in Article 18, paragraph 1 of this Act, make a written statement without monetary compensation to the party as a compensation for non-pecuniary damage caused by the violation of the right to a trial without undue delay. If the right to a trial without undue delay has been seriously violated and at the request of the party, the State Attorney's Office may in addition to the monetary compensation also make a written statement.
(2) The written statement shall include data referred to in the Article 5, paragraph 2, subparagraphs 1, 2, 3 and 4 of this Act, an indication that a violation of the right to a trial without undue delay has occurred and the length of the undue delay.
(3) A written statement shall be made by the State Attorney's Office within the concluded settlement referred to in Article 19 of the present Act. At the party's request, the written statement shall be published on the website of the State Attorney's Office which shall cover the costs thereof. The written statement shall be made public for two months and thereupon archived within the website or deleted within fifteen days of receipt of a request from the party or the majority of parties concerning the written statement.”
11. The applicant complained under Article 6 § 1 of the Convention about the excessive length of civil proceedings.
12. In substance, the applicant also complained under Article 13 of the Convention that she did not have an effective domestic remedy in this regard.
13. Finally, the applicant claimed that the domestic courts did not accurately assess what part and which items of the common property belonged to her, which resulted in a breach of her right to property under Article 1 of Protocol No. 1 and her right to equality of spouses under Article 5 of Protocol No. 7 to the Convention.
1. Complaint about the length of the proceedings under Articles 6 and 13 of the Convention
14. On 18 September 2007 the respondent Government were given notice of the application. In addition they were requested, under Rule 54 § 2 (a) of the Rules of Court, to confirm whether section 25 of the 2006 Act would be applied in this case. In the event of an affirmative answer they were requested to submit a copy of the settlement proposal made to the applicant under the above-mentioned provision.
15. In reply, the Government informed the Court that section 25 of the 2006 Act had been applied to the present application and sent a copy of the settlement proposal made to the applicant. The Government noted that the applicant was complaining, inter alia, of a violation of Articles 6 and 13 of the Convention in respect of the length of the proceedings. Since the applicant was not seeking compensation for non-pecuniary damages, the Government offered the applicant on 18 January 2008 a written statement in which they would acknowledge that the applicant's right to a trial within a reasonable time had been breached. The applicant rejected that offer of a friendly settlement.
16. On 7 March 2008 the Government made a new friendly settlement proposal, in which they offered the applicant 540 Euros for non-pecuniary damage. On 24 August 2008 the applicant informed the Court that she had accepted the respondent Government's proposal in respect of the violation of Article 6 (length) and Article 13 of the Convention, and withdrew her application concerning those Articles.
17. As to the partial withdrawal of the application, the Court refers to Article 37 of the Convention, the relevant part of which provides:
“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
(b) the matter has been resolved;
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.”
18. The Court takes note that, following the settlement reached between the parties, the matter has been resolved at the domestic level with regard to the violation of Articles 6 and 13 of the Convention (Article 37 § 1 (b) of the Convention).
19. The Court is satisfied that respect for human rights as defined in the Convention or its Protocols does not require the examination of that part of the application to be continued (Article 37 § 1 in fine of the Convention) (see Potočnik and others v. Slovenia (dec.), no. 3045/03 et al., 14 October 2008).
2. Remaining complaints
20. The applicant further complained about the alleged violation of her right to property under Article 1 of Protocol No. 1 to the Convention and her right to equality of spouses under Article 5 of Protocol No. 7 to the Convention.
21. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers 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 application out of its list of cases in accordance with Article 37 § 1 (b) of the Convention in so far as it concerns the complaints about the length of proceedings under Article 6 and lack of efficient remedies in this regard under Article 13 of the Convention.
Declares inadmissible the remainder of the application.
Quesada Josep Casadevall