THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 17314/03
by Miodrag CAREVIĆ
against Slovenia
The European Court of Human Rights (Third Section), sitting on 3 June 2008 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, Setion Registrar,
Having regard to the above application lodged on 15 May 2003,
Having regard to the Government’s submissions and their request to strike the case out of its list of cases and the text of unilateral declaration made with a view to resolving the issues raised by the application,
Having regard to the applicant’s response to the Government’s unilateral declaration and his further comments,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Miodrag Carević, is a Slovenian national who was born in 1953 and lives in Celje. He was represented before the Court by Mr B. Verstovšek, a lawyer practising in Celje. The respondent Government (“the Government”) were represented by their Agent, Mr Lucijan Bembič, State Attorney-General.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Main proceedings
3. On 23 January 1997 the applicant instituted proceedings against the insurance company ZT and his employer in the Celje Local Court (Okrajno sodišče v Celju) seeking compensation in the amount of 1,431963 SIT (approximately 60.000 euros) for injuries he had sustained in an accident at work.
4. Between 25 August 1998 and 12 January 2001 the applicant lodged four requests that a date be set for a hearing.
5. Between 28 October 1998 and 26 October 1999 the applicant lodged three written submissions.
6. Hearings were held on 30 November 1998, 11 January 1999 and 8 October 2001.
7. During the proceedings the court appointed a medical expert to prepare a forensic report.
8. On 8 October 2001 the court partly upheld the applicant’s claim. The written judgment was served on the applicant on 3 December 2001.
9. All parties appealed.
10. On 5 March 2003 the Celje Higher Court (Višje sodišče v Celju) delivered a judgment partly upholding the appeals.
The judgment was served on the applicant on 10 April 2003.
11. Subsequently, ZT lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče).
12. On 26 August 2004 the Supreme Court partly upheld the appeal and changed the first- and second-instance court’s judgments accordingly.
The Supreme Court’s judgment was served on the applicant on 10 December 2004.
2. The proceedings under the 2006 Act
13. On 20 February 2007 the respondent Government were given notice of the present application.
14. On 4 June 2007 the State Attorney’s Office sent a settlement proposal to the applicant under section 25 of the Act on the Protection of the Right to a Trial without undue Delay (“the 2006 Act”). In its proposal, the State Attorney’s Office acknowledged the violation of the right to a trial within a reasonable time and offered to pay monetary compensation in the amount of 1,040 euros (EUR) in respect of non-pecuniary damage and EUR 292 for reimbursement of the costs and expenses connected with the case.
15. Subsequently, the applicant informed the State Attorney’s Office that he was not willing to accept the proposal as the sum offered was too low. At the same time, he proposed to settle the case for EUR 1,500 in respect of non-pecuniary damage and approximately EUR 990 in costs and expenses, in particular lawyer’s fees.
16. As no settlement had been reached, the applicant, relying on section 25, paragraph 2 of the 2006 Act, lodged a claim for just satisfaction with Celje Local Court on 6 November 2007. He claimed EUR 3,000 in respect of non-pecuniary damage sustained due to alleged excessive length of the proceedings and EUR 500 in respect of the alleged violation of the right to effective remedy.
These proceedings are still pending.
B. Relevant domestic law
17. The Slovenian Government adopted on 12 December 2005 a Joint State Project on the Elimination of Court Backlogs, the “Lukenda Project”. Its goal is the elimination of backlogs in Slovenian courts and prosecutor’s offices by the end of 2010, by providing for structural and managerial reform of the judiciary. As a part of the Lukenda Project the Parliament adopted the 2006 Act (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Journal, No. 49/2006) which was enacted on 1 January 2007.
18. Section 25 of the 2006 Act 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 an infringement of the right to a trial without undue delay has already ceased and the party has 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 of 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 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 of 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 of 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.”
19. The following parts of the 2006 Act are relevant as regards the claim for just satisfaction:
Section 4 - Criteria for decision-making
“When deciding on the legal remedies under this Act, the circumstances of the particular case shall be taken into account, namely: its complexity in terms of facts and law; actions of the parties to the proceedings, in particular as regards the use of procedural rights and fulfilment of obligations in the proceedings; compliance with rules on the set order for resolving cases, or with statutory deadlines for fixing preliminary hearings or for giving court decisions; the manner in which the case was heard before a supervisory appeal or a motion for a deadline was lodged; the nature and type of case and its importance for a party.”
Section 15 - Just satisfaction
“....
(2) Just satisfaction shall be provided by:
i. payment of monetary compensation for damage caused by an infringement of the right to a trial without undue delay;
ii. a written statement from the State Attorney’s Office that the party’s right to a trial without undue delay has been infringed;
iii. the publication of a judgment that the party’s right to a trial without undue delay has been infringed.”
Section 16 - Monetary compensation
“(1) Monetary compensation shall be payable for non-pecuniary damage caused by an infringement of the right to a trial without undue delay. Strict liability for any damage caused shall lie with the Republic of Slovenia.
(2) Monetary compensation for individual finally decided cases shall be granted in amounts 300 to 5,000 euros.
Section 20 - Proceedings in a court
“...
(3) Territorial jurisdiction for decision-making on an action for damages under this Act shall lie with the local court in whose district the plaintiff is a permanent or temporary resident or has registered office.
...
(6) 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.
(7) Appeal on points of law shall be excluded for disputes on damage under this Act.”
Section 22 – Payment of monetary compensation
“...
(2) The State Attorney’s Office shall pay monetary compensation and the party’s costs of the proceedings on the basis of a final court decision which has established an infringement of the right to a trial without undue delay in the proceedings, under section 20 or section 21 of the present Act.”
...”
Section 23 - Provision of funds
“Funds ... shall be earmarked in the Budget of the Republic of Slovenia within the framework of the financial plan of the State Attorney’s Office.”
20. The general provisions of the Civil Procedure Act (Zakon o pravdnem postopku, uradno prečiščeno besedilo, Official Gazette, no. 73/2007) concerning the role of the domestic courts in determining costs and expenses of the proceedings, including lawyer’s fees, apply also to the proceedings concerning small claims (sections 151 to 166 and 442).
COMPLAINTS
21. The applicant complained under Article 6 § 1 of the Convention of excessive length of the civil proceedings to which he was a party.
22. In substance, he also complained under Article 13 of the Convention that he did not have an effective domestic remedy in this regard.
THE LAW
23. The applicant complained under Article 6 § 1 of the Convention about the length of the civil proceedings.
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
24. In substance, the applicant also complained that the remedies available in Slovenia in length of proceedings cases were ineffective.
Article 13 of the Convention provides:
“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.”
25. Having been notified of the application (see paragraph 13 above), the respondent Government were also requested, under Rule 54 § 2 (a) of the Rules of Court, to confirm whether section 25 of the 2006 Act would be applied in the present case. In the event of an affirmative answer they were requested to submit a copy of the settlement proposal made to the applicant under the provision mentioned.
A. The parties’ submissions
26. In their submissions, the Government informed the Court that section 25 of the 2006 Act was applied to the present application and enclosed a copy of the settlement proposal.
27. The Government submitted unilateral declaration acknowledging a violation of the right to a trial within a reasonable time, which could be found in the settlement proposal mentioned made under section 25 of the 2006 Act, and argued that the applicant had been offered appropriate just satisfaction.
28. Since the applicant disagreed with the amount offered in monetary compensation and the amount offered in reimbursement of legal costs, the Government, relying on Van Houten v. the Netherlands ((striking out), no. 25149/03, ECHR 2005‑IX), requested the Court to strike the application out of the list of cases in accordance with Article 37 § 1 (c) of the Convention.
29. The Government submitted that the compensation offered to the applicant had been calculated on the basis of the criteria provided in section 4 of the 2006 Act and the Court’s case-law on the subject. The settlement proposal included a detailed explanation referring to the relevant period and the levels of jurisdiction involved in the case and took into account the Court’s case-law which allowed the national authorities to provide just satisfaction equivalent to 45% of the amount which would be awarded by the Court in a similar case.
30. As regards the legal costs, they were offered reimbursement of the lawyers’ fees, which were calculated on the basis of the domestic attorneys’ tariff as applied to the settlement reached prior to the beginning of litigious proceedings, plus 20% tax. The Government argued that the applicant was not entitled to a 100% increase in tariff, as he claimed to be, since the application form had been submitted to the Court only in the Slovene language. In addition, reimbursement in full of the sum claimed in respect of material expenses had been offered to the applicant.
31. Finally, the Government argued that section 25 provided an accessible, sufficient and effective remedy which the applicant should have made use of in order to comply with Article 35 § 1 of the Convention.
32. The applicant disputed the Government’s arguments.
B. The Court’s assessment
1. Complaint about the length of proceedings
33. The Court observes at the outset that new legislation, namely the 2006 Act, has been introduced in Slovenia with the intention of guaranteeing the right to a trial within a reasonable time at domestic level. It became operational on 1 January 2007.
34. The Court further notes that the applicant is entitled to rely on the transitional provision of the 2006 Act, namely section 25, which concerns cases where the violation of the “reasonable time” requirement has already ceased to exist and which were lodged with the Court before 1 January 2007.
35. Pursuant to that provision the State Attorney’s Office shall offer an applicant a settlement proposal in respect of just satisfaction within four months of communication of the application to the Government. Within two months of receipt of the State Attorney’s Office’s proposal, the applicant shall submit his or her proposal in reply. The State Attorney’s Office has then four months to state its position regarding the settlement.
36. In any event, if the applicant’s proposal for settlement is not acceded to or the State Attorney’s Office and the applicant fail to negotiate an agreement within four months of the date on which the applicant filed his or her proposal, the applicant may bring a civil claim, namely a “claim for just satisfaction”, before the competent court as provided by the 2006 Act. The claim must be lodged within six months of the State Attorney’s Office’s refusal to accept the applicant’s proposal or of the expiry of the period within which the State Attorney’s Office should decide on the settlement.
37. As regards the present case, the Court notes that the applicant received the above-mentioned settlement proposal and takes note of the Government’s request to strike the applications out of the list of cases on the basis of the unilateral declaration.
38. The Court observes that a distinction must be drawn between, on the one hand, declarations made in the context of strictly confidential friendly-settlement proceedings and, on the other, unilateral declarations – such as the present declarations – made by a respondent Government in public and adversarial proceedings before the Court (see, among many others, Agibalova and Others v. Russia, no. 26724/03, § 20, 13 April 2006).
39. The Court notes that under certain circumstances it may strike out an application under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued. To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law (see Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; Meriakri v. Moldova (striking out), no. 53487/99, 1 March 2005; Swedish Transport Workers Union v. Sweden (striking out), no. 53507/99, 18 July 2006; and Van Houten, cited above).
40. The Court notes that it has specified in a number of cases the nature and extent of the obligations which arise for the respondent State under Article 6 of the Convention as regards the guarantees of the right to a trial within a reasonable time and the requirement of an effective remedy capable of providing appropriate redress for the damage resulting from the breach of this right (see Cocchiarella v. Italy [GC], no. 64886/01, §§ 86-98, 29 March 2006). In this connection the Court reiterates that there is a strong but rebuttable presumption that excessively long proceedings will occasion non-pecuniary damage (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 204, 29 March 2006) and that the characteristics of sufficient redress relates also to the amount awarded in respect of such damages (see Scordino, cited above, § 202).
41. As to whether it would be appropriate to strike out the present application on the basis of the unilateral declaration made by the Government, the Court observes in the first place that the applicant complained about the length of the proceedings, which lasted more than seven years and ten months for three levels of jurisdiction. In this period the case was pending before the first-instance court for about four years and ten months.
42. Further, the Court notes that although the Government acknowledged that the length of the domestic proceedings in the applicant’s case had been excessive, the proposed sum in respect of non-pecuniary damage was considerably lower than the sum awarded for comparable delays in the Court’s case-law (see Prekoršek v. Slovenia, no. 75784/01, 6 April 2006, and also Videmšek v. Slovenia, no. 75701/01, 30 March 2006). Moreover, the Court notes that the proposed sum was also lower than the sum which could, according to the Court’s case-law, be regarded as reasonable, taking into account factors such as the fact that that the settlement proposals were made in the context of domestic proceedings and that they were made promptly (see Scordino, cited above, §§ 195-207, 213-214, 267-272; Cocchiarella, cited above, § 146; Dubjakova, cited above, and Kalajžić v. Croatia (dec.), no. 15382/04, 28 September 2006).
43. Therefore, since the Court is not at this stage persuaded that the applicant was offered adequate compensation in respect of non-pecuniary damage suffered by him as a result of the alleged violation of his right to a trial within a reasonable time (see Wawrzynowicz v. Poland, no. 73192/01, § 38), it does not find it appropriate to strike the application out under Article 37 § 1 (c) of the Convention on the basis of the Government’s unilateral declaration. The Court therefore rejects the Government’s request to that effect (see Tahsin Acar, cited above, §§ 85 and 86).
44. This conclusion does not, however, prevent the Court from examining the compliance of the application with Article 35 § 1 of the Convention. In this connection, the Court notes that the Government argued that the applicant had at his disposal a newly established judicial avenue which he had not exhausted.
45. In this connection the Court reiterates that the purpose of the exhaustion rule is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it (see, among many other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system (ibid.).
46. The Court further reiterates that the only remedies which Article 35 § 1 of the Convention requires to be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient (see Selmouni, cited above, § 75).
47. As to the context of length of proceedings, the Court reiterates that according to its established case-law Article 13 offers an alternative: a remedy is “effective” if it can be used either to expedite a decision by the courts dealing with the case, or to provide the litigant with adequate redress for delays that have already occurred (see Kudła v. Poland [GC], no. 30210/96, § 159, ECHR 2000‑XI). The same is necessarily true of the concept of “effective” remedy within the meaning of Article 35 § 1 (see Mifsud v. France (dec.) [GC], no. 57220/00, ECHR 2002-VIII).
48. With respect to the present complaint, the Court observes that further to unsuccessful negotiations with the State Attorney’s Office, the applicant lodged a civil claim, namely a “just satisfaction claim”, relying on section 25, paragraph 2 of the 2006 Act. The Court notes in this connection that a “just satisfaction claim”, which, once lodged, is subject to general rules provided in 2006 Act (see paragraphs 18 and 19 above), has been found in Korenjak v. Slovenia ((dec.), no. 463/03, 15 May 2007) to constitute appropriate means of redressing a violation that has already occurred (ibid., § 60). The Court moreover notes that in these proceedings the parties should also be able to seek reimbursement of legal costs as provided in relevant provisions of the Civil Procedure Act (see paragraphs 18 and 20 above).
This part of the application must thus be at the present regarded as premature.
49. The Court’s position may however be subject to review in the future and the national authorities should take particular care to ensure that the 2006 Act is applied in conformity with the Convention and the Court’s case-law. The Court recalls in this respect that, according to the Court’s settled case-law, it cannot be ruled out that excessive delays in an action for compensation will render the remedy inadequate (see Scordino, cited above, § 195).
50. In view of the foregoing considerations and given that the proceedings in which the applicant is seeking just satisfaction for alleged undue delays are pending before the Celje Local Court since 6 November 2007, the Court finds that this part of the application is premature and must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
2. Complaint of lack of effective remedies
51. The Court has already found that the 2006 Act does afford the applicant effective remedy in respect of his complaint about the length of the proceedings. That finding is also valid in the context of his complaint under Article 13 of the Convention.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Rejects the Government’s request to strike the application out of the list;
Declares the application inadmissible.
Santiago QuesadaJosep Casadevall
RegistrarPresident
Full & Egal Universal Law Academy