European Court of Human Rights

FIFTH SECTION

DECISION

Application no 14609/04
JoZe KOZELJ
against Slovenia

The European Court of Human Rights (Fifth Section), sitting on 14 February 2012 as a Committee composed of:

Ann Power-Forde, President,
Boštjan M. Zupančič,
Angelika Nußberger, judges,
and Stephen Phillips, Deputy Section Registrar,

Having regard to the above application lodged on 30 March 2004,

Having regard to the Government’s settlement proposal made to Ms Marija Kozelj,

Having deliberated, decides as follows:

FACTS

The applicant, Mr JoZe Kozelj, was a Slovenian national who was born in 1922 and lived in Zgornje Gorje. He died on 17 February 2005, in the course of the proceedings before the Court. On 6 December 2005 the Radovljica Local Court declared Ms Marija Kozelj, the applicant’s wife, as one of his heirs. On 7 July 2008 Ms Marija Kozelj declared that she wished to pursue the application before the Court.

Ms Marija Kozelj, who lives in Zgornje Gorje, was represented before the Court Mr M. Kuhar, a lawyer practising in Radovljica. The Slovenian Government (“the Government”) were represented by their Agent.

A.  The circumstances of the case

On 24 April 1991 the applicant lodged a criminal complaint against J.A., alleging that the latter demolished his wooden hut and chicken coop, which caused him pecuniary damage.

A.J. was acquitted on 22 January 1997.

Subsequently, on 12 April 1994 the applicant lodged a civil claim against J.A. with Radovljica Local Court. He sought the reimbursement of 678.356,00 SIT (approximately 2.800 EUR) on account of damages he had suffered owing to the J.A.’s alleged wrongdoing.

On 9 January 2001 the court dismissed the applicant’s claim. The court observed that the wooden hut and the chicken coop were placed on J.A.’s plot of land and that the applicant had been asked on several occasions to remove the hut and the chicken coop, but failed to do so. The court further found that the applicant’s wooden hut and chicken coop were not unlawfully removed from J.A.’s property. The court concluded that as the conditions of the tort liability were not met, the applicant was not entitled to damages.

The applicant appealed.

The Ljubljana Higher Court dismissed the applicant’s appeal on 9 May 2001.

Subsequently, the applicant lodged a constitutional appeal with the Constitutional Court, which was dismissed on 17 February 2004.

B.  Relevant domestic law

The Act on the Protection of the Right to a Trial without Undue Delay (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Journal, No. 49/2006 – “the 2006 Act”) became operational on 1 January 2007.

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 a violation of the right to a trial without undue delay has already ceased and the party has made 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 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 of the date on which the party made its proposal, the party may lodge a claim [for just satisfaction] with the competent court under this Act. The party may lodge a claim 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 whether 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.”

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention that the civil proceedings had been excessively long and under Article 13 that he did not have an effective domestic remedy in this regard. The applicant further complained under Article 6 about the unfairness of the domestic proceedings, claiming in particular that the domestic courts had not sufficiently reasoned the decisions taken in the civil proceedings.

THE LAW

The Court first notes that Ms Marija Kozelj, as the heir of the applicant wished to continue the present proceedings on behalf of her late husband and finds that there are no obstacles for her to do so (see, for example, Kovačić and Others v. Slovenia [GC], nos. 44574/98, 45133/98 and 48316/99, §§ 189-192, 3 October 2008).

Furthermore, as regards the applicant’s complaint about the length of the civil proceedings and the lack of effective remedy in this respect, the Court notes that, on 16 August 2011, Ms Marija Kozelj 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 as regards the proceedings to which the applicant was a party. It further notes that Ms Marija Kozelj has since then been in a position to either negotiate a settlement with the State Attorney’s Office or, if that were to be unsuccessful, 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 (dec.), no. 28457/03, §§ 40-43, 3 June 2008, and Kešelj and 6 others v. Slovenia (dec.), nos. 20674/05, 20680/05, 28380/05, 28441/05, 38861/05, 39198/05 and 44915/05, 19 May 2009).

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 this part of the application and that it 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 the cases to its list of cases if it considers that the circumstances justify such a course.

As to the applicant’s complaint under Article 6 about the unfairness of the impugned proceedings, having regard to all material in its possession, 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 (a) 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 with regard to the complaint about the length of the proceedings under Article 6 of the Convention and about the lack of an effective domestic remedy in this regard under Article 13;

Declares inadmissible the remainder of the application.

Stephen Phillips Ann Power-Forde
Deputy Registrar President