European Court of Human Rights

 

 

 

FIFTH SECTION

 

 

 

 

 

 

CASE OF JOVIČIĆ v. SLOVENIA

 

(Application no. 52045/13)

 

 

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

 

16 July 2015

 

 

This judgment is final but it may be subject to editorial revision.




In the case of Jovičić v. Slovenia,

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

          Helena Jäderblom, President,
          Boštjan M. Zupančič,
          Aleš Pejchal, judges,

and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 23 June 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 52045/13) 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 Croatian national, Mr Željko Jovičić (“the applicant”), on 5 August 2013.

2.  The applicant was represented by Mr N. Kljajić, a lawyer practising in Izola. The Slovenian Government (“the Government”) were represented by their Agent, Mrs T. Mihelič Žitko, State Attorney.

3.  On 2 October 2014 the application was communicated to the Government.

4.  The Government of Croatia, having been informed of their right to intervene (Article 36 § 1 of the Convention and Rule 44 § 1 (a) of the Rules of Court), did not avail themselves of this right.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1953 and lives in Split.

A.  Civil proceedings

6.  On 5 June 1992 the Customs Office Sežana in customs offence proceedings seized a large amount of gold belonging to the applicant and his car.

7.  On 5 July 1996 the customs offence proceedings were discontinued and the seized property was returned to the applicant on 12 September 1997.

8.  On 17 November 1997 the applicant instituted civil proceedings against the State claiming pecuniary losses sustained due to the seizure with the Koper District Court.

9.  On 19 March 1999 the applicant requested the court to expedite the proceedings.

10.  On 1 April 1999 the Koper District Court issued its decision dismissing the applicant’s claim. The applicant appealed.

11.  On 7 March 2000 the Koper Higher Court dismissed the appeal. The applicant lodged an appeal on points of law.

12.  On 30 August 2001 the Supreme Court dismissed the applicant’s appeal on points of law. The applicant lodged a constitutional complaint.

13.  On 8 April 2004 the Constitutional Court quashed the decisions of the lower instances in the part concerning pecuniary damages in respect of the car and remitted that part of the case back to the first instance court.

14.  On 1 September 2004 the Koper District Court held the first main hearing after the remittal. At the hearing the applicant’s representative informed the court of his intention to lodge an application with the European Court of Human Rights and requested the district court to postpone the hearing until the Court would decide on his application. The district court followed the applicant’s representative’s motion and adjourned the proceedings.

15.  In August 2006 the Koper District Court scheduled a hearing for 27 September 2006. After the applicant’s representative had received the summons to the hearing, he requested the hearing to be postponed since the Court had not yet decided on his application. The district court dismissed the applicant’s motion.

16.  At the hearing held on 27 September 2006 the applicant again requested that the hearing be postponed pending the outcome of his application with the Court. The district court dismissed the request. Since the applicant modified his claim at the hearing and submitted further evidence the court adjourned the hearing in order to enable the defendant to respond to the modification and the new evidence.

17.  On 3 November 2006 the court held a further hearing and issued its decision. Both parties appealed.

18.  On 18 September 2007 the Koper Higher Court granted the appeals and remitted the case back to the first instance.

19.  On 12 February 2008 the applicant lodged a supervisory appeal with the Koper District Court due to the length of the proceedings.

20.  On the same day, 12 February 2008, the Koper District Court held a hearing and issued its decision. The applicant appealed.

21.  On 26 February 2008 the Koper District Court dismissed the applicant’s supervisory appeal as unfounded, since in the meantime the court had issued its decision in the case and therefore no acceleratory measures could be taken by the court.

22.  On 18 June 2008 the Koper Higher Court dismissed the appeal. After several unsuccessful attempts of service the decision was served on the applicant’s representative on 10 December 2008. The applicant lodged an appeal on points of law.

23.  On 17 September 2009 the Supreme Court dismissed the applicant’s appeal on points of law.

B.  Proceedings concerning the claim for non-pecuniary damage on account of the alleged delays in the above proceedings

24.  On 14 December 2009 the applicant lodged an application for settlement with a view to reaching an agreement on just satisfaction on account of the delays in the civil proceedings with the State Attorney’s Office.

25.  On 6 January 2009 the State Attorney’s Office dismissed the applicant’s claim due to the fact that his supervisory appeal had been dismissed and the applicant should have therefore also lodged a motion for a deadline.

26.  On 29 April 2010 the applicant, relying on the Act on the Protection of the Right to a Trial without Undue Delay (“the 2006 Act”), lodged a claim with the Koper Local Court seeking compensation in the amount of 5,800 euros (EUR) for non-pecuniary damage incurred as a result of the length of the civil proceedings.

27.  On 13 February 2012 the Koper Local Court dismissed the applicant’s claim. It held that the applicant should have lodged a motion for a deadline after his supervisory appeal had been rejected.

28.  On an unknown date the applicant appealed. In his appeal he stressed that he had no reason to lodge a motion for a deadline since the court had in the meantime issued its decision and his motion for a deadline would in any case be rejected for lack of legal interest.

29.  On 17 January 2013 the Koper Higher Court dismissed the applicant’s appeal. It held that it was irrelevant whether the applicant had any prospects of succeeding with the motion for a deadline, as the 2006 Act did not require that a party would succeed with the legal remedy but solely that he or she had lodged it. The decision was served on the applicant’s representative on 12 February 2013.

II.  RELEVANT DOMESTIC LAW

30.  For relevant domestic law see Grzinčič v. Slovenia, no. 26867/02, 3 May 2007.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION

31.  The applicant complained that the length of the 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 ...”

32.  The applicant further complained that the remedies available for excessive legal proceedings in Slovenia were ineffective. He relied on Article 13 of the Convention which reads as follows:

“Everyone whose rights and freedoms as set forth in [this] 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

33.  The Government argued non-exhaustion, referring to the remedies provided for by 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”).

34.  They maintained that the applicant could have lodged the acceleratory remedies earlier than in February 2008 since the 2006 Act became operative already on 1 January 2007. They further argued that he could have also lodged a further supervisory appeal in the proceedings before the higher court.

35.  The Court observes that Section 3 of the 2006 Act provides for two remedies to expedite pending proceedings - a supervisory appeal and a motion for a deadline - and, ultimately, for a claim for just satisfaction in respect of damage sustained because of the undue delay.

36.  It further observes that under Section 15 of the aforementioned act a claim for just satisfaction can be lodged if a supervisory appeal lodged by the party to the proceedings has been granted or if a motion for a deadline has been lodged following a dismissal of the supervisory appeal.

37.  The Court notes that in the present case the applicant’s supervisory appeal was dismissed as unfounded for the reason that the court had, on the day when he had lodged the appeal, already issued a decision in the case. It further notes that the applicant’s claim for just satisfaction was then dismissed on the grounds that following a dismissal of the supervisory appeal the applicant should have lodged a motion for a deadline.

38.  The Court considers that it is not possible to follow the reasoning of the domestic courts that the applicant should have pro forma lodged a motion for a deadline as foreseen under the 2006 Act, even though knowing that the remedy was irrelevant due to the fact that the first instance court had in the meantime decided on his case and that his motion for a deadline would therefore most likely be rejected on procedural grounds for lack of interest.

39.  The Court also considers that it could not have reasonably been expected of the applicant to lodge a further supervisory appeal in respect of the proceedings before the second-instance court since the Koper Higher Court rendered its decision within less than four months and again his supervisory appeal would therefore most likely be dismissed as unfounded.

40.  The Government’s objection concerning the exhaustion of domestic remedies should therefore be dismissed.

41.  The Court further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

1.  Article 6 § 1

42.  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).

43.  It notes that the period to be taken into consideration began on 17 November 1997, when the applicant instituted proceedings before the Koper District Court and ended on 17 September 2009 when the Supreme Court issued its decision. The proceedings thus lasted eleven years and ten months at three levels of jurisdiction.

44.  The Court notes that the case concerned a civil claim and that, in the absence of any arguments to the contrary put forward by the Government, it does not appear that the proceedings were particularly complex.

45.  Examining the applicant’s behavior, the Court finds that due to his repeated requests for postponement of the hearings the applicant’s conduct had an adverse effect on the length of the proceedings.

46.  Notwithstanding the applicant’s contribution to the delays, the Court however cannot ignore the overall duration of the proceedings and in particular the inactivity of the domestic court at the initial stage of the proceedings. Further delays occurred owing to remittals of the case on appeal, for which the applicant also cannot be blamed (see Wierciszewska v. Poland, no. 41431/98, § 46, 25 November 2003, and Deželak v. Slovenia, no. 1438/02, § 25, 6 April 2006).

47.  Having regard to the foregoing and to its case-law on the subject (see Žolger v. Slovenia, no. 75688/01, §§ 17-19, 30 March 2006; Puž v. Slovenia, no. 76199/01, §§ 20-22, 30 March 2006; Cekuta v. Slovenia, no. 77796/01, §§ 19-21, 6 April 2006; and Bitenc v. Slovenia, no. 3474/06, §§ 38-42, 30 January 2014), 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

48.  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).

49.  In view of its findings above (see §§ 33-40) the Court finds 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

50.  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

51.  The applicant claimed EUR 5,800 in respect of non-pecuniary damage.

52.  The Government contested the claim as exaggerated.

53.  The Court considers that the applicant must have sustained non-pecuniary damage. It considers that it should award the full sum claimed.

B.  Costs and expenses

54.  The applicant also claimed an unspecified amount for the costs and expenses incurred before the domestic courts and EUR 220 for those incurred before the Court.

55.   The Government contested these claims.

56.  Regard being had to the documents in its possession and to its case-law, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the full sum claimed for the proceedings before the Court.

C.  Default interest

57.  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,

1.  Declares the application admissible;

 

2.  Holds that there has been a violation of Articles 6 § 1 and 13 of the Convention;

 

3.  Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts:

(i)  EUR 5,800 (five thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 220 (two hundred twenty 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;

 

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 16 July 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

    Milan Blaško                                                                    Helena Jäderblom
Deputy Registrar                                                                       President