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MADZAREVIC v. SLOVENIA - 38975/05 [2012] ECHR 835 (15 May 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/835.html
Cite as:
[2012] ECHR 835
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FIFTH
SECTION
CASE OF MADZAREVIĆ v. SLOVENIA
(Application
no. 38975/05)
JUDGMENT
STRASBOURG
15
May 2012
This
judgment is final but it may be subject to editorial revision.
In the case of MadZarević v.
Slovenia,
ITMarkIntroduction
The European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Ann Power-Forde,
President,
Boštjan M. Zupančič,
Angelika
Nußberger, judges,
and Stephen Phillips,
Deputy Section Registrar,
Having
deliberated in private on 17 April 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 38975/05) 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 Borut MadZarević (“the applicant”),
on 10 October 2005.
The
Slovenian Government (“the Government”) were represented
by their Agent, Mr L. Bembič, State Attorney.
On
12 February 2009 the application was communicated to the Government.
In accordance with Protocol No. 14 to the Convention, the application
was assigned to a committee of three Judges.
THE FACTSITMarkFactsComplaintsStart
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1949 and lives in Ljubljana.
A. Enforcement proceedings (In 2000/00047)
On
25 November 1998 the Ljubljana Labour and Social Court found that the
applicant’s employment had been unlawfully terminated by
company K. and ordered the latter to reinstate the applicant in his
previous position and pay his salary for the period of his wrongful
dismissal. On 28 June 2000 this judgment became final.
On
22 September 2000 the applicant lodged a request for enforcement of
the judgment.
On 3 October 2000 the Vrhnika Local Court allowed the
enforcement claim. Company K., however, objected, claiming that it
had already fulfilled the obligations arising from the
above-mentioned judgment. On 8 November 2000 the Vrhnika Local
Court stayed the enforcement and advised company K. to institute
contentious proceedings.
After
the termination of the contentious proceedings (see paragraphs 11-18
below), and further to a request by the applicant on 13 March 2007,
the enforcement proceedings continued. On 13 June 2007 the court
ordered enforcement of the part of the judgment awarding the sum of
EUR 46,950 which represented the unpaid salary with default interest
(see paragraph 16 below). The applicant lodged
an appeal, which was rejected on 10 October 2007.
9. On 29 November 2007 the Vrhnika Local Court discontinued the
enforcement on the basis of information received from company K. to
the effect that the payment had been made. However, this decision was
quashed on appeal and subsequently, further to the notification that
the applicant had received the full amount of the outstanding claim,
the Vrhnika Local Court discontinued the enforcement on 24 September
2008. The applicant’s appeal against that decision was rejected
by the Ljubljana Higher Court on 25 February 2009. The latter’s
decision was served on the applicant on an unspecified date in March
2009.
In
the course of those proceedings, the applicant lodged supervisory
appeals under the Protection of the Right to Trial without Undue
Delay Act (hereinafter referred to as “the 2006 Act”) on
18 July 2007 and 17 March 2008 respectively. On 4 April 2008 he
lodged a motion for a deadline, which was rejected as unfounded by
the vice-president of the Ljubljana Higher Court on 25 April 2008.
B. Contentious proceedings concerning the validity of
the enforcement (P 1454/2005)
On 24 November 2000 company K. lodged a claim with the
Ljubljana Labour and Social Court, contesting the validity of the
above-mentioned enforcement order of 3 October 2000 (see paragraph 7
above).
A
hearing was held on 28 August 2001. On that date the court delivered
a judgment, which was served on the applicant on 7 January 2002. On
14 January 2002 the applicant appealed.
On
29 August 2003 the Higher Labour and Social Court allowed the appeal
and remitted the case for re-examination.
On
1 December 2003 the Ljubljana Labour and Social Court decided that it
did not have jurisdiction in the case and referred it to the Vrhnika
Local Court for adjudication. Following an objection by the
applicant, the Vrhnika Local Court also declared that it lacked
jurisdiction to decide on the matter and referred the case to the
Ljubljana District Court on 16 July 2004. On 21 January 2005 the
latter instituted a dispute on jurisdiction. Following a decision of
the Ljubljana Higher Court of 2 February 2005 the case was again
transferred to the Vrhnika Local Court on 7 March 2005.
On
10 March 2005 the Vrhnika Local Court ordered company K. to specify
the monetary value of the claim and, on 7 April 2005, declared lack
of jurisdiction to adjudicate the case and referred it to the
Ljubljana District Court. On 23 June and 6 December 2005 the latter
held hearings.
On 6 December 2005 the court delivered a judgment in
which it upheld company K.’s claim in so far as it concerned
the re-employment of the applicant and payment of contributions and
taxes. On the other hand, it rejected the company’s claim with
respect to unreimbursed salary with default interest and found that
the claim for enforcement of this part of the judgment was
admissible.
On
15 March 2006 the applicant appealed and so did K. On 24 January
2007 the Ljubljana Higher Court rejected both appeals. The judgment
was served on the applicant on 12 February 2007.
In the course of the proceedings, the applicant lodged
two supervisory appeals, one on 9 March 2005 and one on 3 January
2007.
C. Proceedings concerning the applicant’s claim
for compensation for non-pecuniary damage on account of the alleged
delay in the above-mentioned proceedings
On 19 May 2008 the applicant, relying on section 20 of
the 2006 Act, lodged a claim with the Kranj Local Court seeking
compensation in the amount of EUR 5,000 for non-pecuniary damage
incurred as a result of the length of the contentious proceedings. In
the course of the proceedings, the applicant reduced his claim to EUR
4,000.
In
reply to the claim, the State Attorney agreed to pay EUR 1,440 with
respect to non-pecuniary damage.
Further
to the termination of the enforcement proceedings (see paragraph 9
above), the applicant, on 8 June 2009, sent a settlement proposal to
the State Attorney requesting to be paid compensation for
non-pecuniary damage relating also to the length of the enforcement.
On 7 June 2010, the applicant, having received no
reply from the State Attorney, requested that his compensation claim
be extended to cover the damage resulting from the alleged excessive
length of the enforcement proceedings. On 5 July 2010 the State
Attorney declined to settle the case as far as the enforcement
proceedings were concerned.
On
9 July 2010 the applicant lodged a supervisory appeal.
On 14 July 2010 the court issued a judgment. The court
found that the contentious proceedings had lasted six years and two
months at two levels of jurisdiction, had not concerned an issue of
any complexity, and that the delay could not be attributed to the
applicant. It also found that the applicant had lodged two
well-founded supervisory appeals in the course of the proceedings.
The court concluded that the applicant’s right to a trial
within a reasonable time had been violated and that the State was to
pay EUR 1,440 to him. In addition, it ordered the State to pay the
applicant default interest on the amount of EUR 1,440 backdated to 19
May 2008. The court rejected the remainder of the claim. Lastly, the
court rejected the applicant’s request of 7 June 2010 for the
modification of the claim, finding that in accordance with the
applicable procedural rules no modification could be made at that
late stage of the proceedings.
On 6 September 2010 the applicant lodged an appeal. On
6 May 2011 the Ljubljana Higher Court rejected the appeal and
the Kranj Local Court’s judgment consequently became final.
D. Proceedings concerning the applicant’s claim
for damages on account of the alleged delay in the proceedings
On
22 July 2008 the applicant, relying on section 21 of the 2006 Act,
lodged a claim with the Ljubljana District Court for compensation for
pecuniary damage in the amount of EUR 24,851, which he had allegedly
sustained on account of the length of the contentious proceedings.
On
22 October 2009 the applicant modified his claim so as to include the
damage incurred on account of the length of the enforcement
proceedings (no. In 2000/20047).
On
1 June 2010 the Ljubljana District Court referred the case to the
Kranj Local Court, which had jurisdiction to decide on the matter.
On
6 July 2010 the applicant lodged a supervisory appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The 2006 Act entered into force on 17 May 2006.
On 1 January 2007 it became operational and has been implemented
since that date. The Act provides that a claimant may use a
supervisory appeal and an application for a deadline in order to
expedite the proceedings. In addition to these acceleratory remedies,
the 2006 Act also provides for the opportunity to obtain redress by
means of a compensatory remedy, namely, by bringing a claim for
compensation. With regard to the compensatory remedy, the 2006 Act
provides that two cumulative conditions must be satisfied in order
for a party to be able to lodge a claim for compensation. Firstly,
during the proceedings the applicant must have successfully availed
himself of a supervisory appeal or have lodged an application for a
deadline, regardless of the outcome. Secondly, the proceedings must
have been terminated. Before a compensation claim can be lodged with
a court, the claimant is required to attempt to settle the case with
the State Attorney’s Office. For a detailed presentation of the
2006 Act, see Zunič v. Slovenia (dec.), no. 24342/04,
§§ 17-26, 18 October 2007.
ITMarkFactsComplaintsEndTHE
LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AS REGARDS THE LENGTH OF PROCEEDINGS
The
applicant complained that the length of the domestic proceedings
concerning the enforcement of the judgment of 25 November 1998,
in particular with respect to the delays in the contentious
proceedings, had been incompatible with the “reasonable time”
requirement, laid down in 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 ...”
A. Admissibility
The
Government argued that the applicant had failed to exhaust the
domestic remedies provided under the 2006 Act. In particular, the
proceedings for compensation for pecuniary and non–pecuniary
damage which the applicant instituted under the 2006 Act were still
pending.
The
applicant contested that argument on the grounds that the remedies
referred to by the Government were ineffective.
The
Court reiterates that it may only deal with a matter after all
domestic remedies have been exhausted. It further notes that after
the parties had submitted their observations to the Court, the
domestic proceedings for compensation for non-pecuniary damage were
terminated on 6 May 2011. As a result of these proceedings, the
applicant was awarded compensation in the amount of EUR 1,440 by a
judgment in which the court found that his right to a trial within a
reasonable time had been violated. In view of this development, the
Court must determine whether the applicant can still claim to be a
victim of the alleged violation within the meaning of Article 34 of
the Convention.
Having regard to the case-law on the subject-matter,
the Court notes that the applicant’s victim status will depend
on whether the redress afforded to him at the domestic level was
adequate and sufficient having regard to Article 41 of the Convention
(see, among others, Jakupović v. Croatia, no.
12419/04, § 16, 31 July 2007; Scordino v. Italy (no. 1)
[GC], no. 36813/97, §§ 178-213, ECHR 2006-...;
and Cocchiarella v. Italy [GC], no. 64886/01,
§§ 69-98, ECHR 2006-...).
The
Court notes that the amount awarded to the applicant, EUR 1,440
concerned only the contentious proceedings, which ended on
12 February 2007. Having regard to the length and importance of
these proceedings for the applicant (labour dispute), the
aforementioned sum represented less than 30% of what the Court would
be likely to award in the circumstances of the case in accordance
with its practice. This factor in itself leads to a result that is
manifestly unreasonable, having regard to the Court’s case-law.
The redress obtained by the applicant at the domestic level was thus
insufficient (see Cocchiarella, cited above, §§
106-107). The applicant can accordingly still claim to be a “victim”
of a breach of his right to a hearing within a reasonable time.
The
Court further notes that the applicant requested the enforcement of
the judgment of 25 November 1998 on 22 September 2000. The
enforcement proceedings were stayed shortly afterwards, when
contentious proceedings were instituted two months later. After the
termination of the contentious proceedings, the enforcement
proceedings continued for a further two years. In this connection,
the Court notes that the applicant lodged acceleratory remedies under
the 2006 Act with respect to the length of the enforcement
proceedings and therefore became entitled under the aforementioned
act to claim compensation. However, his claim for modification of the
claim for non-pecuniary damage so as to include those further periods
of duration of the enforcement proceedings was rejected (see
paragraphs 22 and 24
above). In light of its conclusion concerning the applicant’s
victim status, the Court shall therefore take the overall period,
including the periods not considered by the domestic court, into
account when determining the merits of the case and, if appropriate,
the applicant’s claim for just satisfaction under Article 41 of
the Convention (see Vidas v. Croatia, no. 40383/04,
§ 23, 3 July 2008).
Lastly,
the Court notes that the proceedings lodged by the applicant for
compensation for pecuniary damage with respect to his
length-of-proceedings complaint are still pending before the domestic
court. However, in view of the above findings, the Court finds it
appropriate to take up this issue in the context of Article 41 of the
Convention alone.
The
Court therefore concludes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other
grounds and must thus be declared admissible.
B. Merits
The
period to be taken into consideration began on 22 September 2000,
when the applicant lodged his enforcement request, and ended no
earlier than on 25 February 2009, when the Ljubljana Higher Court’s
judgment was issued. The proceedings therefore lasted eight years and
five months, and two levels of jurisdiction were involved. Within
that period, the contentious proceedings lasted about six years and
three months.
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). The Court reiterates that special diligence is
necessary in employment disputes (see Ruotolo v. Italy, 27
February 1992, § 17, Series A no. 230-D ).
The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Frydlender, cited above).
Having
examined all the material submitted to it, the Court concurs with the
domestic court that in the instant case the length of the contentious
proceedings was excessive and failed to meet the “reasonable
time” requirement.
As
regards the length of the enforcement proceedings, not counting the
time they were stayed pending the outcome of the contentious
proceedings, the Court notes that they lasted about two years and two
months at two levels of jurisdiction. Although no unjustified delays
occurred in that period, having regard to the overall length of the
enforcement proceedings and the delays that occurred in the
contentious proceedings, the Court considers that the applicant was
not afforded a trial within a reasonable time (see Vidas,
cited above, § 37).
There
has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicant further complained that he had no effective remedies at his
disposal as regards his complaint about the length of the
proceedings. This complaint falls to be examined under Article 13 of
the Convention, which 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.”
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). The “effectiveness” of a “remedy”
within the meaning of Article 13, however, does not depend on the
certainty of a favourable outcome for the applicant (see Kudła,
cited above, § 157).
The Court notes that it is true that at the time when
the applicant first brought his complaint to it, there were no
effective remedies available in Slovenian law in respect of the
length of the proceedings in issue (see Belinger v.
Slovenia, (dec.), no. 42320/98, 2 October 2001, and
Lukenda v. Slovenia, no. 23032/02, §§
66-71, ECHR 2005 X). However, on 1 January 2007, after the
introduction of the 2006 Act, he had at his disposal remedies which
were aimed at redressing breaches of the “reasonable time”
requirement at domestic level. The Court found in its decision in
Korenjak v. Slovenia ((dec.), no. 463/03, §§
63-71 and 78, 15 May 2007) that the remedies introduced by the 2006
Act should be used by applicants even in cases that were already on
the Court’s list by the date of the introduction of that act.
In that case the Court, not having yet any court practice at its
disposal and therefore basing its conclusions on an
assessement of the provisions of the 2006 Act, found that a claim for
non-pecauniary damage under that Act represented an
appropriate means of redressing a violation that had already occurred
(Korenjak, cited above, §§ 60-62). Having
regard to the way the provisions of the 2006 Act were applied in the
proceedings instituted by the applicant (see paragraph 19-25
above), the court sees no reason to depart from the above finding. It
notes that the local court accepted the applicant’s claim,
found a violation of his right to trial within a reasonable time and
awarded him compensation. The mere fact that the compensation awarded
to the applicant at the domestic level does not correspond to the
amounts awarded by the Court in comparable cases does not render the
remedy on the whole ineffective (see for example, Jakupović,
cited above, § 28).
It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 (a) and 4 of
the Convention.
III. OTHER ALLEGED
VIOLATIONS
The
applicant further complained that the length of the proceedings
complained of had infringed his right to access to court under
Article 6 § 1 of the Convention and to the peaceful enjoyment of
his possessions, as guaranteed by Article 1 of Protocol No. 1 to the
Convention.
The
Government contested that argument.
The
Court notes that these complaints are linked to the one examined
above under Article 6 § 1 and must therefore likewise
be declared admissible.
Having
regard to its finding under Article 6 § 1 as regards the
complaint about the length of the proceedings, the Court considers
that it is not necessary to examine whether, in this case, there has
been a violation of Article 6 § 1 with respect to the right to
access to court or Article 1 of Protocol No. 1 to the Convention
(see, mutatis mutandis, Zanghì v. Italy,
19 February 1991, § 23, Series A no. 194-C).
IV. 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 EUR 24,851 in respect of pecuniary damage and EUR
5,000 in respect of non-pecuniary damage.
The Government contested these claims.
As
regards the applicant’s claim in respect of pecuniary damage,
the Court, noting that the domestic proceedings concerning the same
issue are still pending, rejects it.
As regards non-pecuniary damage, the Court reiterates
that where an applicant has resorted to an available domestic remedy
and thereby obtained a finding of a violation and has been awarded
compensation, but can nevertheless still claim to be a “victim”,
the amount to be awarded under Article 41 may be less than the
amounts the Court has awarded in similar cases. In that case an
applicant, with regard to the period considered by the domestic
authority, must be awarded the difference between the amount obtained
in the domestic proceedings and an amount that would not have been
regarded as manifestly unreasonable if it had been awarded by the
competent domestic authority. An applicant should also be awarded an
amount in respect of stages of the proceedings that may not have been
taken into account by the domestic authority (see Jakupović,
cited above, §§ 33-35, and Solárová
and Others v. Slovakia, no. 77690/01, § 62, 5 December
2006).
The
Court notes that the applicant was awarded EUR 1,440 by the
domestic authorities. Having regard to the circumstances of the
present case and to the fact that not the entire duration of the
proceedings was covered by the judgment of 14 July 2009, the Court,
ruling on an equitable basis, awards the applicant EUR 3,000 in
respect of non-pecuniary damage.
B. Costs and expenses
The
applicant also claimed EUR 340 for the costs and expenses incurred
before the domestic courts. He also claimed reimbursement of costs
with respect to the proceedings before the Court, but did not specify
this claim.
The Government contested the above claims.
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 documents in its possession and the above criteria, the Court
rejects the claim for costs and expenses.
C. Default interest
The
Court considers it appropriate that the default interest rate 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 complaint concerning Article 13
inadmissible and the remainder of the application admissible;
Holds that there has been a violation of Article
6 § 1 of the Convention on account of the length of the
proceedings;
Holds that it is not necessary to examine the
applicant’s complaints concerning his right to access to court
under Article 6 § 1 and the right guaranteed by Article 1 of
Protocol No. 1 to the Convention;
Holds
(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 3,000
(three thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 15 May 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Ann Power-Forde
Deputy Registrar President
