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MAKSIMOVIC v. SLOVENIA - 28662/05 [2010] ECHR 969 (22 June 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/969.html
Cite as:
[2010] ECHR 969
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THIRD
SECTION
CASE OF MAKSIMOVIČ v. SLOVENIA
(Application
no. 28662/05)
JUDGMENT
STRASBOURG
22
June 2010
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 Maksimovič v. Slovenia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Elisabet
Fura,
Corneliu
Bîrsan,
Boštjan
M. Zupančič,
Alvina
Gyulumyan,
Egbert
Myjer,
Luis
López Guerra,
judges,
and Stanley Naismith, Deputy Section
Registrar,
Having
deliberated in private on 1 June 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 28662/05) 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 Slovenian national, Mr Stojan
Maksimovič
(“the applicant”), on 28 July 2005.
The
applicant was represented by Mr Z. Lipej, a lawyer practising in
Medvode. 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 to which he had
been a party had been excessive. In substance, he also complained of
the lack of an effective domestic remedy in respect of the excessive
length of the proceedings (Article 13 of the Convention).
On
20 February 2009 the
Court decided to communicate the complaints concerning the length of
the proceedings and the lack of remedies in that respect to the
Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1969 and lives in Kranj.
On
7 July 2001 the applicant was injured in a car accident. The motorist
responsible for the accident had taken out insurance with the
insurance company Zavarovalnica Maribor d.d.
On
17 October 2001 the applicant instituted civil proceedings against
the insurance company in the Kranj District Court (OkroZno sodišče
v Kranju) seeking damages in the amount of 1,187,433.00 Slovenian
tolars (approximately 4,966 euros) for the injuries sustained.
Between
7 May 2002 and 20 September 2006 the applicant lodged four sets of
preliminary written submissions.
Between
4 September 2002 and 8 October 2004 he made three requests that a
date be set for a hearing.
Between
24 January and 21 September 2006 three hearings were held.
On
23 February 2007 the applicant informed the first-instance court that
he wished to withdraw the claim.
On
30 March 2007 the Kranj District Court issued a decision that the
proceedings be discontinued, following an out-of-court settlement
between the parties.
II. RELEVANT DOMESTIC LAW
For
the relevant domestic law see Nezirović v. Slovenia
((dec.) no. 16400/06, 25 November 2008).
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE
CONVENTION
The
applicant complained that the length of the proceedings had been
excessive. He relied on Article 6 § 1 of the Convention, which
reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
In
substance, the applicant further complained that the remedies
available for 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. They referred
to the Act on the Protection of the
Right to a Trial without Undue Delay (“the 2006 Act”) and
to the Court's decision in Nezirović
v. Slovenia
(cited above).
The
applicant contested those arguments.
Firstly,
the Court observes that the 2006 Act became operational on 1 January
2007. Since that date it has provided acceleratory remedies which can
be used during the first- and second-instance proceedings. A claimant
may lodge a supervisory appeal if he or she considers that the court
is unduly protracting the decision-making. If the president of the
court dismisses the supervisory appeal or, inter alia, fails
to respond to the appellant within two months, he or she, relying on
the same grounds, can lodge a motion for a deadline with the court
hearing the case. The motion for a deadline is to be dealt with by
the president of the higher court. He or she is to decide on the
motion for a deadline within fifteen days of receiving it.
In
addition to these acceleratory remedies, the 2006 Act also provides
for the possibility of obtaining redress through a compensatory
remedy, that is by bringing a “claim for just satisfaction”
after the acceleratory remedies have been exhausted, namely, a
successful supervisory appeal or a motion for a deadline, regardless
of its outcome. The “claim for just satisfaction” can be
lodged when the proceedings have been resolved.
Secondly,
the Court notes that it has found in previous cases against Slovenia
that the applicants were required to make use of acceleratory
remedies if the proceedings were pending before the first or
second-instance court (see Korenjak v. Slovenia, (dec.) no.
463/03, §§ 63-61, 15 May 2007), and that they
were also required to use the compensatory remedy, provided that,
after exhausting the acceleratory remedies, they had reasonably
prompt access to it (see Zunič v. Slovenia,
(dec.) no. 24342/04, §§ 43-55, 18 October 2007).
Thirdly,
in the decision Nezirović v. Slovenia (cited above, §§
37-40) the Court observed that even in cases where the delays had
occurred before the 2006 Act became operational, the compensation
claim could in principle be considered to be an effective remedy if
the applicant had a real possibility of satisfying the requirements
for its admissibility, including the use of acceleratory remedies as
required by section 15. In that case, the Court found that the
applicant had had a real possibility of satisfying the requirements
for the use of acceleratory remedies, having regard to the fact that
the 2006 Act had been published in the Official Gazette on
12 May 2006 and that the impugned domestic proceedings were
finally resolved on 9 May 2007. The Court therefore
considered that four months (the period after the 2006 Act became
operational) was a sufficiently long period to allow the party to the
proceedings to exhaust the said remedies.
In
the present case the Court must determine whether, in view of the
principles set out in Nezirović v. Slovenia (see
paragraph 20 above), the applicant had enough time and a reasonable
chance to exhaust the acceleratory remedies for the purpose of
securing his access to a just satisfaction claim.
In
this connection the Court observes that when the 2006 Act became
operational on 1 January 2007, the impugned proceedings were pending
before the first-instance court. The last hearing in the case was
held on 21 September 2006 and the applicant subsequently
withdrew his claim on 23 February 2007, following an out-of-court
settlement between the parties. A decision was given on 30 March
2007 terminating the proceedings. The applicant therefore had less
than three months to avail himself of the acceleratory remedies.
In order to use these remedies in a way that would have enabled
him to subsequently lodge a just satisfaction claim, he would have
had to lodge a supervisory appeal in the days immediately after the
2006 Act became operational. Moreover, if the supervisory appeal had
been rejected, which would have been highly likely given that there
had been no delays after 1 January 2007, or if the president of the
first-instance court had failed to decide on it within two months,
the applicant would have had to lodge a motion for a deadline with
the president of the second-instance court (see paragraph 17 above).
Only then would he have satisfied the admissibility requirements for
a just satisfaction claim.
Taking
into account that an out-of-court settlement was reached on 23
February 2007, which is less than three months after the 2006 Act
became operational, and having regard to the statutory deadlines for
the lodging of acceleratory remedies and the time needed for their
adjudication (see paragraph 17 above), the Court considers that the
applicant could not realistically have been expected to exhaust the
acceleratory remedies for the purpose of satisfying the conditions
for lodging a compensation claim in the present case (see, by
contrast, Nezirović v. Slovenia, §§ 36–41).
The Government's objection concerning non-exhaustion of domestic
remedies should therefore be dismissed.
The
Court further notes that the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention; nor is it inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Article 6 § 1
The
applicant argued that the length of the proceedings was unreasonable
in his case. The Government did not submit any arguments in respect
of the merits of the complaint under Article 6, despite being invited
to do so.
The
Court observes that the period to be taken into consideration began
on 17 October 2001, when the applicant instituted proceedings with
the Kranj District Court, and ended on 30 March 2007, when the
decision terminating the proceedings was issued. The relevant period
therefore lasted five years and five months for one level of
jurisdiction.
The
Court reiterates that the 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 many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
Having
examined all the material submitted to it, and having regard to its
case-law on the subject, the Court considers that in the instant case
the length of the proceedings 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). In the present case the Court is not persuaded that the
applicant could have had access to the compensation claim and finds
the remedies of the 2006 Act ineffective (see paragraphs
15-25
above). As regards the remedies available prior to the implementation
of the 2006 Act, the Court sees no reason to take a different
approach to that taken in earlier cases in which those remedies were
considered ineffective (see Lukenda v. Slovenia, no. 23032/02,
6 October 2005).
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 9,500 euros (EUR) in respect of non-pecuniary
damage.
The
Government contested the claim.
The
Court considers that the applicant must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards him EUR 4,000 under
that head.
B. Costs and expenses
The
applicant also claimed EUR 275 for the costs and expenses incurred in
the proceedings before the Court.
The
Government did not comment on the applicant's claim.
According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. 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 applicant the sum of EUR 275 for
the proceedings before the Court.
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, within three months from the date on
which the judgment becomes final in accordance with Article 44 § 2
of the Convention:
(i)
EUR 4,000 (four thousand euros), plus any tax that may be chargeable,
in respect of non-pecuniary damage;
(ii)
EUR 275 (two hundred and seventy-five 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;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 22 June 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley
Naismith Josep Casadevall
Deputy Registrar President
