European Court of Human Rights

 

 

 

FIFTH SECTION

 

 

 

 

 

 

CASE OF STIBILJ v. SLOVENIA

 

(Applications nos. 1446/07 and 5667/07)

 

 

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

 

6 October 2015

 

 

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 Stibilj v. Slovenia,

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

          Josep Casadevall, President,
          Angelika Nußberger,
          Boštjan M. Zupančič,
          Ganna Yudkivska,
          Helena Jäderblom,
          Aleš Pejchal,
          Síofra O’Leary, judges,

and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 8 September 2015,

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

PROCEDURE

1.  The case originated in two applications (nos. 1446/07 and 5667/07) 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 two Slovenian nationals, Mrs Anamarija Stibilj (“the first applicant”) and Mrs Ivanka Stibilj (“the second applicant”), on 29 December 2006.

2.  The applicants were represented by Mrs M. Končan Verstovšek, a lawyer practising in Trzin. The Slovenian Government (“the Government”) were represented by their Agent, Mr Lucijan Bembič, State Attorney.

3.  The applicants alleged, in particular, under Article 6 of the Convention, that the length of the proceedings to which they had been party had been excessive. They also complained of the lack of an effective domestic remedy in respect of the excessive length of the proceedings (Article 13 of the Convention).

4.  On 23 June 2014 the applications were communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

A.  The background

5.  The applicants, daughter and mother, were born in 1949 and 1921, respectively, and live in Ajdovščina.

6.  On 2 February 1989 the Ajdovščina Municipality Land Consolidation Commission (hereinafter “the Commission”) adopted a land consolidation programme concerning, inter alia, land owned by the first applicant’s legal predecessor and a separate piece of land owned by the second applicant.

B.  Administrative and judicial review proceedings

7.  On 4 March 1989 the first applicant’s legal predecessor and the second applicant appealed against the Commission’s decision before the Slovenian Surveying and Mapping Authority (“the Authority”), arguing that they had not been duly compensated for the plots which they had owned and which had been transferred to the land consolidation programme.

8.  On 6 November 1990 the Commission amended the land consolidation programme by assigning the second applicant a different plot of land. The second applicant appealed against the decision.

9.  On 21 December 1990 the first applicant’s predecessor lodged an appeal for the failure of the Authority to adopt a decision within the prescribed time-limit.

10.  On 1 February 1991 the Authority granted the first applicant’s legal predecessor’s appeal, remitting the case to the Commission for further consideration. The Authority found that the operative part of the decision lacked clarity and that the Commission had misapplied the law.

11.  On 28 June 1994 the Convention became operational in respect of Slovenia.

12.  On 16 November 1994 the Authority granted the second applicant’s appeal against the decision of 6 November 1990, finding that the operative part of the decision was inconsistent with its reasoning. The case was remitted to the Commission for further consideration.

13.  On 15 December 1994, 15 March 1996, 24 April 1996 and 20 February 1997 the first applicant’s predecessor and the second applicant lodged informal motions before the Commission, asking that the proceedings be expedited.

14.  On 10 April 1997 - the Commission having failed to undertake further examination of their cases - the first applicant’s legal predecessor and the second applicant each lodged a separate appeal with the Ministry of Agriculture, Forestry and Food (“the Ministry”) alleging that the Commission had failed to adopt a decision within the prescribed time-limit. Moreover, on 30 June 1997 they both appealed to the Ministry to expedite the resolution of their respective land consolidation decisions.

15.  On 25 September 1997 - the Ministry not having responded to their appeal - the first applicant’s legal predecessor and the second applicant brought an action before the Administrative Court for the failure of the Ministry to adopt a decision within the prescribed time-limit.

16.  On 24 September 1999 the Administrative Court allowed those actions and ordered the Ministry to decide on the matter at issue within thirty days from the date on which its judgment became final.

17.  Meanwhile, on 16 August 1999 the Ajdovščina Administrative Unit (previously the Commission, hereinafter “the Administrative Unit”), which had acquired competence to decide on matters of land consolidation, adopted new decisions on the land at issue.

18.  On 23 September 1999 the first applicant’s legal predecessor and the second applicant appealed before the Ministry against those decisions.

19.  On 25 August 2000 their appeals were allowed by the Ministry, which again assigned them different plots of land to compensate them for the loss of their original plots.

20.  On 10 November 2000 the first applicant’s legal predecessor and the second applicant brought actions for judicial review (administrative action) before the Administrative Court against the Ministry’s decisions of 25 August 2000 on the grounds that the Ministry had failed to properly consider the criteria applicable to the land consolidation programme and had thereby violated their right to equality before the law.

21.  On 23 January 2001 the first applicant’s legal predecessor died and the first applicant inherited a part of his land including plots subject to land consolidation proceedings. She then intervened in the proceedings as the heir.

22.  On 11 April 2003 and 9 May 2003, respectively, the Administrative Court allowed the applicants’ actions for judicial review and annulled the Ministry’s decisions of 25 August 2000 on the grounds that the applicants had not been acquainted with the expert opinion on which the Ministry had based its decisions and that no reasons had been provided for the dismissal of the objections to the distribution of land. The Administrative Court remitted the cases to the Ministry for further consideration.

23.  On 15 May 2007 the Ministry adopted new decisions concerning the distribution of land in respect of the first and second applicant.

24.  On 17 June 2007 the applicants each brought another action for judicial review (administrative action) against those new decisions before the Administrative Court.

25.  On 11 February 2008 and 3 March 2009 the applicants each lodged an informal motion before the Administrative Court to expedite the resolution of their action.

26.  On 19 June 2009 and 23 October 2009, respectively, the Administrative Court allowed the first and second applicants’ actions for judicial review, annulling the Ministry’s decisions of 15 May 2007, and again remitted the cases to the Ministry for further consideration.

27.  On 23 November 2009 and 10 May 2010 the first and second applicants lodged informal motions before the Ministry, asking that the proceedings be expedited. Moreover, three other similar motions were lodged before the Ministry by the first applicant on 27 August 2012, 4 December 2012 and 27 January 2013.

28.  On 5 April 2013 the Ministry issued a decision annulling the Administrative Unit’s decision of 16 August 1999 (see paragraph 17 above) and remitted the cases to it.

29.   On 20 May 2014 and 2 June 2014 the Administrative Unit scheduled oral hearings for 12 June 2014 and 19 June 2014, respectively. Prior to the hearings, the first applicant informed the Administrative Unit that she was unable to participate in the hearing due to medical treatment and that the second applicant could not participate as she was seriously ill and bedridden.

30.  On 28 August 2014 the Administrative Unit held an oral hearing regarding the applicants’ cases. Land survey and agriculture experts were appointed to consider the first applicant’s requests regarding the land and an agriculture expert was appointed in connection with the second applicant’s requests.

31.  The land consolidation proceedings were still pending on the date of the Government’s last communication with the Court.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

A.  The General Administrative Procedure Act

32.  Section 222 § 1 of the 1999 General Administrative Procedure Act (in force from 1 April 2000, hereinafter “the GAP Act”) provides that in simple matters, where there is no need to undertake separate examination proceedings, an administrative authority is obliged to give a decision within one month from the submission of an application. In all other cases the administrative authority is obliged to give a decision within two months.

33.  Section 222 § 4 of the GAP Act entitles a party whose application has not been decided upon within the time limits set out in paragraph one to lodge an appeal for failure to adopt a decision within the prescribed time-limit, as if the application had been dismissed. In such a case, pursuant to Section 255 of the GAP Act, the appellate authority requires the first-instance authority to report on the reasons for which the decision has not yet been taken. In so far as those reasons are considered justified, the time-limit for issuing the decision may be extended up to a month. Otherwise, the first-instance authority is required to transmit the case file to the appellate authority for examination. If the case at issue can be resolved on the basis of the case file, the appellate authority proceeds to decide on the matter itself; however, if it considers that the first-instance authority may conduct the proceedings in a speedier and more economical manner, the case file is returned to the latter authority and a time-limit is set in which a decision must be adopted.

B.  The Administrative Disputes Act

34.  Section 26 of the 1997 Administrative Disputes Act (in force from 2 September 1997 to 31 December 2006) entitled a party that had lodged an application with an administrative authority to institute an action for a failure to adopt a decision within the prescribed time-limit before the Administrative Court (administrative action) in the following cases:

“2. If the appellate authority does not rule on the appeal against the first-instance decision within two months, or within a shorter period, if such is provided by law, and if, following a repeated request, it does not issue such a decision within seven days, the applicant may then bring an administrative action as if his request had been dismissed.

3. The applicant may also bring the kind of action mentioned in the preceding paragraph when the first-instance administrative authority fails to make a decision against which no appeal lies.

4. If, in matters where a right to an appeal exists, the first-instance authority fails to make a decision on an individual’s application within two months, or within a shorter period, if such is provided by law, the individual may then submit an application to the appellate administrative authority. The individual may bring an administrative action against the decision of the appellate authority. The individual may also bring an administrative action under the conditions set out in paragraph 2.”

35.  A similar provision may be found in Section 28 of the new Administrative Dispute Act (in force from 1 January 2007):

“2. If the appellate authority does not rule on an appeal against the first-instance decision within two months, or within a shorter period, if such is provided by law, and if, following a repeated request, it does not issue such a decision within seven days, the applicant may then bring an administrative action as if his request had been dismissed.

3. The applicant may also bring the kind of action noted in the preceding paragraph when the first-instance administrative authority fails to make a decision against which no appeal lies, and in the case that the authority has not issued a final administrative act within three years of the beginning of the procedure, irrespective of whether or not ordinary and extraordinary remedies have already been applied in the procedure, except if the procedure has been suspended.

4. If, in matters where a right to an appeal exists, the first-instance authority fails to make a decision upon an individual’s application within two months, or within a shorter period, if such is provided by law, the individual may then submit his application to the appellate administrative authority, which is required to decide on the matter. The individual may bring an administrative action against the decision of the appellate authority. The individual may also bring an administrative action under the conditions set out in paragraph 2.”

C.  Case-law of the Administrative Court

36.  The Government submitted to the Court copies of nine domestic decisions - dated 26 October 2010 (Dec. no. I U 56/2010), 8 March 2011 (Dec. no. I U 1933/2010), 22 September 2010 (Dec. no. I U 454/2010), 13 December 2011 (Dec. no. I U 1131/2011), 4 December 2013 (Dec. no. I U 171/2013), 4 March 2014 (Dec. no. I U 1781/2013), 10 January 2012 (Dec. no. I U 392/2011), 8 January 2013 (Dec. no. I U 352/2012) and 16 October 2013 (Dec. no. I U 299/2013) - concerning actions lodged by parties to different administrative proceedings for a failure to adopt a decision within the prescribed time-limit. The Administrative Court had allowed all nine actions and ordered the administrative authorities to decide on the plaintiffs’ claims within a certain time. Three of those proceedings before the Administrative Court lasted for about three months and the rest for about six to ten months.

LAW

I.  JOINDER OF THE APPLICATIONS

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

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

38.  The applicants complained that the length of the administrative proceedings and the proceedings for judicial review 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

1.  The parties’ submissions

(a)  The Government

39.  The Government raised an objection of non-exhaustion of the domestic remedies at the applicants’ disposal for the purpose of expediting the administrative proceedings and the judicial review proceedings.

40.  As regards, firstly, the administrative proceedings, they argued that an appeal for failure to adopt a decision within the prescribed time-limit had been available in the proceedings before the administrative authorities at the first instance and an action for failure to adopt a decision within the prescribed time-limit had been available in the proceedings before the administrative authorities at the second instance.

41.  The Government argued - relying on the Court’s decisions in the cases of Sirc v. Slovenia (no. 44580/98, 16 May 2002), and Blekić v. Slovenia (no. 14610/02, 7 July 2009) and having regard to the case-law sent to the Court (see Relevant domestic law and practice, paragraph 36 above) - that those two remedies would have been effective, as their use would have helped to accelerate the administrative proceedings.

42.  The Government acknowledged that the applicants had used both remedies at one point in the administrative proceedings; however, they argued that the applicants had failed to avail themselves of the remedies again later on in order to accelerate the administrative proceedings, which remained pending, and are still pending to this day.

43.  Lastly, they pointed out that the two remedies had complied with the “reasonable time” requirement. The proceedings before the Administrative Court regarding the applicants’ action for the failure to adopt a decision within the prescribed time-limit had lasted for two years, which in the Government’s opinion was not unreasonable.

44.  Secondly, the Government raised objection of non-exhaustion also with regard to the judicial review proceedings.

(b)  The applicants

45.  The applicants disputed the Government’s arguments. With regard to the administrative proceedings they claimed that although domestic legislation provided for legal remedies in cases of lengthy administrative proceedings, which they had made use of, the exhaustion of those remedies had not resulted in the acceleration of the proceedings, which were still pending.

46.  They argued that the Ministry had not decided on the first applicant’s predecessor’s and the second applicant’s appeals for failure to adopt a decision within the prescribed time-limit and that it had taken the Administrative Court two years to decide on their subsequent actions for failure to adopt a decision within the prescribed time-limit. The proceedings before the Administrative Court had been unreasonably long, given that it had not had to decide on the merits of the cases but solely on whether or not the lower administrative authorities had failed to issue decisions in due time.

47.  Moreover, the applicants submitted that after the Administrative Court had allowed the first applicant’s predecessor’s and the second applicant’s actions and ordered the Ministry to issue decisions within thirty days, it had taken the Ministry one year to do so. Thus, there had been no means of obtaining within a reasonable time a decision in the administrative proceedings.

48.  According to the applicants, as none of their efforts - namely an appeal, an action and several informal motions to expedite the proceedings - had resulted in accelerated proceedings, the available remedies had not been effective and the requirement to use them again during the pending proceedings had therefore been unreasonable. Moreover, the applicants emphasised that, contrary to judicial proceedings where compensation could be obtained on the basis of the Protection of Right to Trial without Undue Delay Act if the proceedings have already exceeded the reasonable time requirement, the domestic legislation did not provide them any redress.

49.  As regards the examples of domestic case-law submitted by the Government, the applicants pointed out that they did not show how long the proceedings in each case had lasted before the Administrative Court reached its decisions.

2.  The Court’s assessment

(a)  General principles

50.  The purpose of Article 35 § 1, which sets out the rule on the exhaustion of domestic remedies, is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V, and Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000-...). The rule set out in Article 35 § 1 is based on the assumption, reflected in Article 13, with which it has a close affinity, that there is an effective domestic remedy available in respect of an alleged breach of an individual’s Convention rights (ibid.).

51.  Under Article 35 of the Convention, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of alleged breaches. The existence of the remedies in question must be sufficiently certain not only in theory but also in practice (failing which they will lack the requisite accessibility and effectiveness); it falls to the respondent State to establish that these various conditions are satisfied (see, inter alia, Vernillo v. France, 20 February 1991, § 27, Series A no. 198, and Dalia v. France, no. 26102/95, § 38, ECHR 1998-I).

52.  Moreover, what is important with regard to length-of-proceedings complaints is whether a given remedy is capable of speeding up proceedings or preventing them from becoming unreasonably long. In fact, the Court considers the remedies designed to expedite the proceedings the most effective solution since, differently from those affording only compensation, they do not merely repair the breach a posteriori. Nevertheless, where a length-of-proceedings violation has already occurred, such a remedy may not be adequate to redress a situation in which the proceedings have clearly already been excessively long (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 183, ECHR 2006-V).

53.  Admittedly, the issue of the length of proceedings under Article 6 of the Convention does not relate to one specific domestic decision which is then examined by the Court as to its compatibility with the obligations set out under the Convention; rather, it relates to a situation which develops over a certain period of time. Thus, the effectiveness of a remedy which has to be used for the purposes of Article 35 may depend on whether it has a significant effect on the length of the proceedings as a whole (see, mutatis mutandis, Holzinger v. Austria (no. 1), no. 23459/94, § 22, ECHR 2001-I, and Belinger v. Slovenia, (dec.), no. 42320/98, 2 October 2001). In this connection, as the Court has emphasised on many occasions, in case of doubt as to the effectiveness of a remedy, it has to be used (see, for example, Holzinger, cited above, § 22, and the references cited therein).

54.  Furthermore, in the area of the exhaustion of domestic remedies, the burden of proof is distributed. It is incumbent on the Government claiming non-exhaustion to convince the Court that the remedy was an effective one and was available both in theory and in practice at the relevant time - that is to say, that it was accessible, was capable of providing redress in respect of the applicant’s complaints, and offered a reasonable prospect of success. However, once this burden of proof has been met it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective under the particular circumstances of the case in question or that there existed special circumstances absolving him or her of the requirement (see ibid.).

(b)  Application of these principles to the present cases

(i)  The administrative proceedings

55.  Turning to the present cases, the Court notes that the Government, pleading the non-exhaustion of domestic remedies, stated that an appeal and an action for the failure to adopt a decision within the prescribed time-limit had been available under the General Administrative Procedure Act and the Administrative Dispute Act, respectively, in the proceedings before the administrative authorities at both the first and second instances. The applicants maintained that those remedies, which the first applicant’s predecessor and the second applicant had used, had not been effective.

56.  The Court has to determine whether those remedies could have been considered effective and whether they would have served at the relevant time to expedite pending proceedings or prevent them from becoming unreasonably long.

57.  The Court notes that because the Commission - that is to say, the first-instance administrative authority - did not issue decisions for six years (from 1991 to 1997) the first applicant’s predecessor and the second applicant each lodged an appeal for failure to adopt a decision within the prescribed time-limit (see paragraph 14 above). Similarly, since the Ministry, as the second-instance administrative authority, also did not deliver a decision (within the two months prescribed by law), the first applicant’s predecessor and the second applicant each lodged an action for failure to adopt a decision within the prescribed time-limit before the Administrative Court (see paragraph 15 above), in order to accelerate the administrative proceedings. The Administrative Court granted their actions. However, the proceedings lasted for two years (from 25 September 1997 to 24 September 1999) and by the time that the orders were made for the Ministry to either adopt decisions on the merits or to set a time-limit for the Administrative Unit to do so, the said actions had become devoid of purpose, the latter authority having already adopted the decisions in question on 16 August 1999.

58.  According to the Court’s settled case-law, a remedy which will not bear fruit in sufficient time does not fall within the category of the “effective remedies” which Article 35 obliges applicants to exhaust (see Belinger (dec.), cited above).

59.  As regards the first applicant’s predecessor’s and the second applicant’s appeals for failure to adopt a decision within the prescribed time-limit, the Court notes that not only did they not obtain decisions within a reasonable time but they never obtained decisions from the Ministry at all in this regard.

60.  As regards the actions for failure to adopt a decision within the prescribed time-limit, the Court finds that the proceedings before the Administrative Court were unreasonably long, given that that remedy was supposed to accelerate the administrative proceedings and that the Administrative Court did not need to decide on the merits of the cases, but merely on the complaint that the lower administrative authorities had not issued any decisions in due time.

61.  Therefore, the Court finds that in the present cases the remedies put forward by the Government did not expedite the administrative proceedings or prevent them from becoming unreasonably long. Neither could or can the applicants seek compensation for the duration of these proceedings, which they claim violated their right to be tried within a reasonable time.

62.  As to the domestic decisions which the Government produced before the Court, these show that in similar situations the Administrative Court had granted in the period from 2010 to 2014 several actions for failure to adopt a decision within the prescribed time-limit and had ordered lower administrative authorities to decide on the merits in due time. Three of those proceedings before the Administrative Court had lasted for about three months and the rest of them for between about six and ten months.

63.  The Court welcomes those developments; indeed, it indicated in the case of Sirc (see above) that the acceleratory remedies provided under the General Administrative Procedure Act and the Administrative Dispute Act should be exhausted. Nevertheless, on the basis of the above considerations, it concludes that under the specific circumstances of the present cases the applicants were not obliged, under Article 35 of the Convention, to seek the said remedies again during the proceedings.

64.  The Court must point out however, that these findings are limited to the particular circumstances of the present cases, in which it took the domestic authorities unreasonably long to adopt the measures designed to accelerate the main proceedings, as a result of which the acceleratory remedies failed to have any positive effect. The Court thus emphasises that in general and in the absence of exceptional circumstances those remedies should be exhausted.

65.  The Court therefore rejects the Government’s argument of the non-exhaustion of domestic remedies in respect of the administrative proceedings.

(ii)  The judicial review proceedings

66.  The Government claimed that also in the proceedings of judicial review (administrative actions) initiated by the first applicant’s predecessor and the second applicant on 10 November 2000 (see paragraph 20 above) and by the applicants on 17 June 2007 (see paragraph 24 above), they had failed to exhaust available domestic remedies. However, the Government did not specify which remedies the applicants had had at their disposal and how they should have been exhausted.

67.  In the absence of any submissions as to the existence and effectiveness of domestic remedies available at the material time, the Court also rejects the Government’s objection of non-exhaustion of domestic remedies in respect of the judicial review proceedings before the Administrative Court.

3.  Conclusion

68.   The Court notes that the applicants’ complaints under Article 6 § 1 concerning the excessive length of the administrative and judicial review proceedings are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B.  Merits

69.  The Government submitted, as reasons for the delays in the proceedings, that the applicants had not agreed to accept the land assigned to them and that they had refused to be paid the difference between the value of the transferred land and the assigned land; instead, they had insisted in the appeals, actions and hearings on (i) the return of part of their original land and (ii) that they be reimbursed the cost (plus default interest) of the lease of a substitute plot of land that they had been using.

70.  The applicants reiterated their view that the proceedings at issue had been exceedingly long.

71.  The period which the Court can examine by reason of its jurisdiction ratione temporis began on 28 June 1994, when Slovenia ratified the Convention and recognised the right of individual petition. However, in assessing the reasonableness of the time that elapsed after this date, account must be taken of the then state of proceedings (see Foti and Others v. Italy, 10 December 1982, § 53, Series A no. 56).

72.  The administrative proceedings before the lower administrative authorities which commenced on 4 March 1989 initially lasted until 25 August 2000 (see paragraph 19 above) and continued before the Administrative Court until 11 April and 9 May 2003, respectively, when the first applicant’s predecessor’s and the second applicant’s actions for judicial review (administrative actions) were granted (see paragraph 22 above). The administrative proceedings concerning both applicants resumed on 12 April 2003 and 10 May 2003, respectively, running until 15 May 2007. Again, the proceedings continued before the Administrative Court until 19 June and 23 October 2009, respectively, when the Administrative Court granted the applicants’ actions for judicial review and remitted the cases for further consideration before the Ministry (see paragraph 26 above). In the third set of administrative proceedings the Ministry annulled the Administrative Unit’s decisions of 16 August 1999 (see paragraph 28 above), and the proceedings are pending to date before that administrative authority (see paragraph 31 above). All these different sets of proceedings essentially constitute different stages of one and the same dispute concerning the allotment of plots of land in the land consolidation process, hence the Court considers that for the purposes of assessing the reasonableness of their duration they must be examined as a whole. Thus, after Slovenia’s ratification of the Convention, the proceedings have altogether been pending before different administrative and judicial authorities for over twenty-one years.

73.  Moreover, the Court reiterates that its case-law on the intervention of third parties in civil proceedings makes the following distinction: where the applicant has intervened in domestic proceedings only on his or her own behalf the period to be taken into consideration begins to run from that date, whereas if the applicant has declared his or her intention to continue the proceedings as heir - as the first applicant in 2001 did in the present case -he or she can complain of the entire length of the proceedings (see, M.Ö. v. Turkey, no. 26136/95, § 25, 19 May 2005, and Cocchiarella v. Italy [GC], no. 64886/01, § 113, ECHR 2006-).

74.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of each 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).

75.  Regarding the first criterion, the Court has held on many occasions that land consolidation is by its nature a complex process, affecting the interests of both individuals and the community as a whole (see, for instance, Erkner and Hofauer v. Austria, 23 April 1987, § 67, Series A no. 117). Indeed the present cases are of some complexity; however, this cannot justify the excessive length of the proceedings, which have been pending since 1989. For example, the administrative proceedings at the first instance came to a standstill for a period of more than eight years between 1991 and 1999. Later, the administrative appeal proceedings before the Ministry came to a standstill for a period of four years between 2003 and 2007 and for a period of almost four years between 2009 and 2013.

76.  As to the applicants’ and the first applicant’s predecessor’s conduct, there is no evidence before the Court to suggest that they contributed in any significant way to prolonging the proceedings. It is true, as argued by the Government, that the applicants - and the first applicant’s predecessor in the earlier stages of the proceedings - made use of a large number of remedies. However, it cannot be overlooked that some of the remedies were used in an attempt to expedite the administrative proceedings, and that the applicant was successful before the national courts and authorities when relying on others.

77.  The foregoing considerations are sufficient to enable the Court to conclude that in the instant cases the length of the proceedings failed to meet the “reasonable-time” requirement.

78.  There has accordingly been a breach of Article 6 § 1.

III.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

79.  The applicants further complained that the remedies available for excessive proceedings had been ineffective. Article 13 of the Convention 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.”

80. As regards, firstly, the administrative proceedings, the Court reiterates that remedies for excessive length of proceedings were in principle provided under Slovene law - specifically, the applicants could, and did, raise their complaints about the length of the proceedings before the national administrative authorities and courts.

81.  The Court reiterates that in the present cases the Ministry never decided on the appeal for failure to adopt a decision within a prescribed time-limit, and the proceedings regarding the subsequent action before the Administrative Court lasted two years. Nevertheless, given the domestic case-law showing that, at least in the recent years, similar actions before the Administrative Court have been resolved in a considerably shorter time (see paragraph 62 above), the Court does not accept that the said remedy can be presumed in principle ineffective. Indeed no other evidence has been provided to show that either an appeal or action for failure to adopt a decision within a prescribed time-limit could be considered generally ineffective (see, mutatis mutandis, Zarb v. Malta, no. 16631/04, §§ 50-51, 4 July 2006); to the contrary, the examples submitted by the Government indicate that the action before the Administrative Court is generally effective. Nor has it been submitted that failure to reply to an appeal is a routine occurrence.

82.  Further, the Court reiterates that while it cannot be ruled out that excessive delays will render a remedy inadequate, it considers that in the present cases, the duration of the proceedings regarding the appeals and actions, even if amounting to a violation of Article 6 § 1 of the Convention, was not of such significance as to call into question the effectiveness of the remedy as such (see, mutatis mutandis, Belperio and Ciarmoli v. Italy, no. 7932/04, § 53, 21 December 2010, and Hajdurinović v. Slovenia, no. 69319/12, § 58, 21 May 2015).

83.  Moreover, it is noted that the applicants’ complaints of a lack of an effective remedy for excessive length were made with regard to the entirety of proceedings, including the judicial review proceedings before the Administrative Court. However, as regards those two sets of judicial proceedings, the applicants specified neither what, if any remedies they had had at their disposal to expedite the proceedings or to obtain appropriate redress, nor whether they had availed themselves of any possible remedy, and with what result. Accordingly the Court finds that the applicants have failed to substantiate their allegations in this regard.

84.  In the light of the foregoing, the Court considers that this part of the application should be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention, as being manifestly ill-founded.

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

85.  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

86.  The applicants each claimed 30,000 euros (EUR) in respect of non-pecuniary damage.

87.  The Government contested those claims.

88.  The Court considers that the applicants must have sustained non-pecuniary damage as a result of the protracted proceedings which are currently pending for the third time before the first-instance administrative authority. However, it considers the amounts claimed by the applicants to be excessive. Ruling on an equitable basis, the Court awards each applicant EUR 10,000 in respect of non-pecuniary damage.

B.  Costs and expenses

89.  The applicants, both represented by the same lawyer, also each claimed EUR 2,380 for costs and expenses incurred before the Court. This sum consisted of EUR 1,974 in lawyer’s fees, which they claimed were calculated on the basis of statutory domestic rates, EUR 9.70 in material expenses, and EUR 397 in respect of value-added tax.

90.  The Government argued that this claim was excessive, as the reasons for lodging the applications were identical.

91.  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 cases, regard being had to the information in its possession, to the fact that the applicants’ submissions were largely identical, and the above criteria, the Court considers it reasonable to award them jointly the sum of EUR 3,000 in respect of the proceedings before the Court.

C.  Default interest

92.  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.  Joins the applications;

 

2.  Declares the complaints under Article 6 § 1 of the Convention concerning the length of the administrative proceedings and the proceedings of judicial review admissible and the remainder of the applications inadmissible;

 

3.  Holds that there has been a violation of Article 6 § 1 of the Convention;

 

4.  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 the following amounts:

(i)  EUR 10,000 (ten thousand euros) to each of the applicants, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 3,000 (three thousand euros) jointly, plus any tax that may be chargeable to the applicants, 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 amount at a rate equal to the marginal lending rate

 of the European Central Bank during the default period, plus three percentage points;

5.  Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 6 October 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek                                                              Josep Casadevall
       Registrar                                                                              President