THIRD SECTION
DECISION
Applications nos. 12349/05, 25623/05, 28255/05, 28754/06 and 50422/06
against Slovenia
The European Court of Human Rights (Third Section), sitting on 23 June 2009 as a Chamber composed of:
Josep Casadevall, President,
Elisabet Fura-Sandström,
Boštjan M. Zupančič,
Alvina Gyulumyan,
Ineta Ziemele,
Luis López Guerra,
Ann Power, judges,
and Santiago Quesada, 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:
THE FACTS
The applicants are all nationals of Slovenia (see the attached appendix). Mr Aleš Ajdarovič, Ms Darja Škrinjar, Mr Gregor Žibert and Ms Sabina Sopko were represented before the Court by Mr Zlatko Lipej, a lawyer practicing in Medvode. Mr Jože Irt was represented before the Court by Ms Manja Krainer, a lawyer practicing in Radovljica. Ms Darja Drama was represented before the Court by Mr Boštjan Verstovšek, a lawyer practising in Celje. Ms Vikica Rotovnik was represented before the Court by Ms Barica Zidar, a lawyer practicing in Celje.
The Slovenian Government (“the Government”) were represented by their Agent, Mr Lucijan Bembič, State Attorney-General.
A. The circumstances of the case
The civil proceedings to which the applicants Mr Ajdarovič, Ms Škrinjar and Mr Žibert were parties and with respect to which they lodged the application no. 12349/05 before the Court, were eventually separated. While the proceedings which continued with respect to Mr Ajdarovič terminated before 1 January 2007, the proceedings which continued with respect to Ms Škrinjar and Mr Žibert are still pending before the first-instance court. They have not exhausted any of the new remedies available under the Act on the Protection of the Right to a Trial without Undue Delay (see “Relevant domestic law” below).
All the other applicants were parties to civil proceedings which terminated before 1 January 2007.
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 Gazette, No. 49/2006 – “the 2006 Act”) became operational on 1 January 2007.
Section 25 lays down the following transitional rules in relation to the 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 had filed 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 after 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 after the date on which the party filed its proposal, the party may bring an action before the competent court under this Act. The party may bring an action within six months after 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 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 applicants complained under Article 6 § 1 of the Convention that the civil proceedings had been excessively long. They also complained that they did not have an effective domestic remedy in this regard (Article 13 of the Convention).
THE LAW
With regard to the part of the application no. 12349/05 that concerns the proceedings to which Ms Škrinjar and Mr Žibert are the parties, the Court recalls its previous findings in Grzinčič v. Slovenia (no. 26867/02, 3 May 2007), in which it considered that the aggregate of remedies provided by the 2006 Act in cases of excessively long proceedings pending at first and second instance is effective also as regards the applications submitted before 1 January 2007 and that the applicants are required to use the new remedies. The Court notes that the applicants Ms Škrinjar and Mr Žibert have not availed themselves of any of the remedies provided by the 2006 Act and considers that they are required by Article 35 § 1 of the Convention to use those remedies. It follows that this part of the application no. 1234/05 must be rejected under Article 35 § 1 of the Convention for non-exhaustion of domestic remedies. This part of the application must therefore be declared inadmissible in accordance with Article 35 § 4 of the Convention.
With regard to the part of the application no. 12349/05 concerning the applicant Mr Ajdarovič, as well as all the other applications, the Court notes that, after the Government had been informed of the applications in 2008 (Article 54 § 2(a) of the Rules of Court), all the applicants except Ms Škrinjar and Mr Žibert (see the previous paragraph) 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 (see the appendix). It further notes that the applicants have since then 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 (dec.), no. 28457/03, §§ 40-43, 3 June 2008).
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 and that they 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 a case to its list of cases if it considers that the circumstances justify such a course.
For these reasons, the Court unanimously
Decides to join the applications;
Declares the part of the application no. 12349/05 concerning the applicants Ms Škrinjar and Mr Žibert inadmissible;
Decides to strike the part of the application no. 12349/05 concerning Mr Ajdarovič and all the other applications out of its list of cases.
Santiago QuesadaJosep Casadevall
RegistrarPresident
Appendix
No.
Applicant’s Name
Year of Birth
Address
Application No.
Date of Introduction
Date of settlement proposal or agreement signed by the State Attorney
1.
Aleš AJDAROVIČ, Darja ŠKRINJAR & Gregor ŽIBERT
1976, 1968, 1975
Medvode, Maribor, Medvode
12349/05
26/03/2005
03/03/2009 (settlement proposed only with respect to the proceedings to which Mr Ajdarovič was a party)
2.
Jože IRT
1963
Čatež ob Savi
25623/05
06/07/2005
18/08/2008
3.
Sabina SOPKO
1972
Hrastnik
28255/05
20/07/2005
10/02/2009
4.
Darja DRAMA
1984
Petrovče
28754/06
08/06/2006
03/04/2009
5.
Vikica ROTOVNIK
1947
Stranice
50422/06
04/12/2006
27/03/2009
Full & Egal Universal Law Academy