European Court of Human Rights

FIFTH SECTION

DECISION

Application no. 25112/06
JoZef KOSTANJEVEC against Slovenia
and 2 other applications
(see list appended)

The European Court of Human Rights (Fifth Section), sitting on 11 October 2011 as a Committee composed of:

Ganna Yudkivska, President,
Boštjan M. Zupančič,
Angelika Nußberger, judges,
and Stephen Phillips, Deputy Section Registrar,

Having regard to the above applications,

Having regard to the Government’s settlement proposals made to the applicants,

Having deliberated, decides as follows:

PROCEDURE

All the applicants are Slovenian nationals. The applicant JoZef Kostanjevec was born in 1945 and lives in Ptuj. He was represented before the Court by Mr T. Alič, a lawyer practicing in Ptuj. The applicant Mr Marko Vovk was born in 1961 and lives in Brezje. He was represented before the Court by Mr Z. Lipej, a lawyer practicing in Medvode. The applicant Mr Peter Cunder was born in 1943 and lives in Ljubljana. He was represented before the Court by Ms A. Sočan Zitnik, a lawyer practicing in Ljubljana.

The Slovenian Government (“the Government”) were represented by their Agent.

A. The circumstances of the case

The applicants were parties to domestic proceedings which terminated before 1 January 2007, when 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, providing new remedies with respect to unreasonably long proceedings.

Moreover, the applicant Mr Peter Cunder was also a party to another set of civil proceedings, which were terminated by the judgment of the Ljubljana Higher Court on 14 November 2007.

B.  Relevant domestic law

For the relevant domestic law see Grzinčič v. Slovenia (no. 26867/02, § 110, 3 May 2007) and Pohlen v. Slovenia ((dec.), no. 28457/03, §§ 40-43, 3 June 2008).

COMPLAINTS

The applicants complained under Article 6 § 1 of the Convention that the civil proceedings had been excessively long. They also complained under Article 13 of the Convention that they did not have an effective domestic remedy in this regard.

THE LAW

Pursuant to Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given their common factual and legal background.

The Court notes that, after the Government had been given notice of the applications under Rule 54 § 2 (a) of the Rules of the Court, all the applicants received the State Attorney’s Office’s settlement proposals under section 25 of the 2006 Act acknowledging a violation of the right to a trial within a reasonable time and offering redress for non-pecuniary damage. It further notes that the applicants have since been in a position either to negotiate a settlement with the State Attorney’s Office or, if that should be unsuccessful, to lodge a “claim for just satisfaction” in accordance with the relevant provisions of the 2006 Act (see “Relevant domestic law” above). The latter has been considered by the Court to constitute appropriate means of redressing a breach of the reasonable time requirement of Article 6 that has already occurred (see Pohlen v. Slovenia, cited above).

The Court reiterates Article 37 of the Convention, which in the relevant part reads as follows:

“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.

Having regard to the foregoing, the Court considers that it is no longer justified to continue with the examination of the applications, including the part of the application of Mr Peter Cunder which concerns the proceedings that terminated before the 2006 Act entered into force on 1 January 2007, and that they should be struck out of the list of cases in accordance with Article 37 § 1 (c).

As far as the complaints of Mr Peter Cunder concern the second set of proceedings, which were terminated by the judgment of the Ljubljana Higher Court on 14 November 2007, the Court observes that these proceedings were still pending when the 2006 Act became operational. It further recalls that in Grzinčič v. Slovenia (cited above) the Court was satisfied that the aggregate of remedies provided by the 2006 Act in cases of excessively long proceedings pending at first and second instance was effective and that the applicants were required to use these remedies. The Court further observes that the applicant has not availed himself of these remedies.

It follows that the applicant’s complains under Article 6 § 1 of the Convention concerning the second set of proceedings must be declared inadmissible under Article 35 § 1 of the Convention due to non-exhaustion of domestic remedies and rejected in accordance with Article 35 § 4 of the Convention.

With respect to the applicant’s complaints under Article 13 of the Convention concerning the second set of proceedings, the Court has already found that the 2006 Act did afford the applicant effective remedies in respect of his complaint about the length of the second set of proceedings. That finding is also valid in the context of the applicant’s complaint under Article 13 of the Convention. It follows that this complaint is manifestly ill-founded and must therefore be rejected in accordance with Article 35 § 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to join the applications;

Decides to strike the applications out of its list of cases, including the part of the application of Mr Peter Cunder concerning his complaints about the proceedings that terminated before the 2006 Act entered into force on 1 January 2007,

Declares inadmissible the remainder of the application of Mr Peter Cunder.

Stephen Phillips Ganna Yudkivska
Deputy Registrar President

ANNEX