FOURTH SECTION
DECISION
Application no. 72066/12
Davorin BUŠAC
against Slovenia
The European Court of Human Rights (Fourth Section), sitting on 17 October 2017 as a Committee composed of:
Vincent A. De Gaetano, President,
Georges Ravarani,
Marko Bošnjak, judges
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above application lodged on 7 November 2012,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Davorin Bušac, is a Slovenian national, who was born in 1956 and lives in Izola. He was represented before the Court by Mr N. Kljajić, a lawyer practising in Izola.
2. The Slovenian Government (“the Government”) were represented by their Agent, Ms N. Pintar Gosenca, State Attorney.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows:
1. Civil proceedings
4. On 24 April 1992 X instituted civil proceedings against the applicant with the Celje District Court, claiming damages allegedly caused by the applicant in a car accident.
5. On 22 November 2006 the Celje District Court dismissed the claim. X appealed.
6. On 14 February 2008 the Celje Higher Court dismissed the appeal. X lodged an appeal on points of law.
7. On 20 November 2008 the Supreme Court dismissed the appeal on points of law.
2. Proceedings concerning a claim for non-pecuniary damage on account of the alleged delays in the above proceedings
8. On 18 June 2008, after having his application for settlement dismissed by the State Attorney’s Office, the applicant, relying on the 2006 Act on the Protection of the Right to a Trial without Undue Delay (“the 2006 Act”), brought a claim with the Koper District Court, seeking 15,000 euros (EUR) for non-pecuniary damage. The claim was referred to the Koper Local Court which had jurisdiction in the matter.
9. On 9 January 2012 the Koper Local Court found that the applicant’s right to a trial within a reasonable time had been breached and awarded him EUR 3,600. It dismissed the remainder of the claim. The applicant appealed.
10. On 22 February 2012 the Koper Local Court awarded the applicant EUR 73.94 in respect of costs and expenses incurred during the proceedings.
11. On 29 May 2012 the Koper Higher Court dismissed the applicant’s appeal.
B. Relevant domestic law and practice
12. For relevant domestic law with respect to length of proceedings see Grzinčič v. Slovenia (no. 26867/02, §§ 35-48, 3 May 2007). In particular, section 20(6) of the 2006 Act states that the provisions of the Civil Procedure Act concerning small claims apply in proceedings concerning compensation for non-pecuniary damage, irrespective of the type or amount of claim.
13. The applicable legal provisions of the Constitutional Court Act (Official Gazette no. 15/94 with further amendments) regarding the so-called small claims and related case-law are detailed in Knežević and Others v. Slovenia ((dec.), no. 51388/13, §§ 16 and 19-21, 19 September 2017).
COMPLAINTS
14. The applicant complained under Articles 6 and 13 of the Convention that the civil proceedings had been excessively long and that he had not received adequate compensation for non-pecuniary damage or full reimbursement of the costs incurred.
THE LAW
A. Complaint under Article 6 § 1 of the Convention
15. The applicant complained that the length of proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which, in so far as relevant, 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 ...”
16. The Government objected that the applicant had failed to exhaust domestic remedies because he had not lodged a constitutional complaint against the Koper Higher Court’s judgment of 29 May 2012 (see paragraph 11 above), which in their view constituted an effective remedy in small claims disputes (see paragraph 12 above). They relied on the relevant provisions of the Constitutional Court’s Act (see paragraph 13 above).
17. The applicant did not contest the Government’s arguments, but stated in his application that he had not lodged a constitutional complaint because, according to the Constitutional Court’s case-law, it would in any event have been inadmissible.
18. The Court reiterates that the purpose of Article 35 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 Convention institutions. That rule is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. Thus the complaint intended to be made subsequently to the Court must first have been made – at least in substance – to the appropriate domestic body, and in compliance with the formal requirements and time-limits laid down in domestic law (see, among other authorities, Sejdovic v. Italy [GC], no. 56581/00, §§ 43-44, ECHR 2006‑II).
19. Turning to the present case, the Court notes that the applicant lodged his application with the Court after his appeal against the judgment concerning compensation for the breach of the reasonable time requirement had been dismissed by the Koper Higher Court (see paragraph 11 above). He has not lodged a constitutional complaint.
20. The present case can therefore be compared to Knežević and Others v. Slovenia ((dec.), no. 51388/13, §§ 31-32, 19 September 2017), where the applicants lodged their application concerning length of proceedings after their appeal had been rejected by the higher court. The Court declared their length-of-proceedings complaint inadmissible, finding that they should have availed themselves of the constitutional complaint in order to exhaust domestic remedies. The Court sees no reason to reach a different conclusion in the present case.
21. It follows that the applicant’s complaint under Article 6 § 1 must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
B. Complaint under Article 13 of the Convention
22. The applicant complained that he had not had an effective remedy as he had not received adequate compensation for non-pecuniary damage. He invoked 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.”
23. The Court reiterates that Article 13 of the Convention guarantees the availability at a national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable claim” under the Convention and to grant appropriate relief (see Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000‑XI). Given that the applicant’s complaint under Article 6 has been rejected for non-exhaustion of domestic remedies, the complaint under Article 13 should be declared manifestly ill-founded and rejected under Article 35 §§ 3 and 4 of the Convention (see Knežević and Others, cited above, § 34, and Fakhretdinov and Others v. Russia (dec.), nos. 26716/09 and 2 others, § 37, 23 September 2010).
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 9 November 2017.
Andrea TamiettiVincent A. De Gaetano
Deputy RegistrarPresident
Full & Egal Universal Law Academy