CASE OF BOKAL v. SLOVENIA

FIFTH SECTION

CASE OF BOKAL v. SLOVENIA

(Application no. 34386/10)

JUDGMENT

STRASBOURG

3 April 2014

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

In the case of Bokal v. Slovenia,

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

Angelika Nußberger, President,
Boštjan M. Zupančič,
Helena Jäderblom, judges,
and Stephen Phillips, Deputy Section Registrar,

Having deliberated in private on 11 March 2014,

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

PROCEDURE

1. The case originated in an application (no. 34386/10) 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 Slovenian national, Ms Lidija Bokal (“the applicant”), on 26 May 2010.

2. The Slovenian Government (“the Government”) were represented by their Agent.

3. On 5 June 2013 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1955 and lives in Ljubljana.

5. On 21 July 1997 the applicant instituted civil proceedings before the Ljubljana Local Court against M.P. and N.M. requesting the court to determine the validity of a sale contract concluded between the defendants concerning an apartment in a building partially owned by the applicant and proposing that a note on dispute be entered in the Land Register. She indicated as the disputed value SIT 500,000 (approximately EUR 2,100).

6. On 20 August 1997 the court issued a decision rejecting the applicant’s proposal to enter a note on dispute in the Land Register. The applicant appealed.

7. On 18 February 1998, after several unsuccessful attempts to serve the applicant’s appeal on the first defendant, the court posted the appeal on the court’s notice board.

8. On 4 March 1998 the Ljubljana Higher Court dismissed the applicant’s appeal against the decision of 20 August 1997.

9. Following the applicant’s supervisory appeal to the Ministry of Justice, the court on 18 February 1998 reported to the Ministry that the case could not be given priority.

10. On 21 April 1998 the applicant requested the court to schedule a hearing.

11. On 27 March 2000 the applicant requested the court to give priority to her claims which she had lodged with the court.

12. On 5 April 2000 the court dismissed the applicant’s request.

13. On 16 June 2000 a third party intervener, D.S., who had in the meantime bought the apartment subject to the proceedings from the first defendant, joined the proceedings by submitting a written statement.

14. On 1 March 2002 the third party intervener lodged a supervisory appeal submitting inter alia that since the proceedings were still pending she was unable to dispose of the apartment.

15. The first hearing was scheduled for 13 February 2004 but was subsequently postponed to 26 March 2004.

16. On 18 March 2004 the applicant lodged written submissions raising the value of the claim to SIT 1,100,000 (approximately EUR 4,600).

17. On 26 March 2004 the first main hearing was held. The court adopted a decision, modifying the value of the claim as requested by the applicant.

18. On 11 May 2004 the applicant lodged a request for an interim order.

19. Between 9 April 2004 and 4 June 2004 three further main hearings were held. On the latter date the court issued its judgment partially upholding the applicant’s claim. The decision was served personally on the applicant and the second defendant and to the first defendant and the third party by posting it on the court’s notice board.

20. On 27 September 2004 the applicant lodged an appeal against the decision.

21. On 7 December 2005 the Ljubljana Higher Court returned the file to the first instance court instructing the court that the first defendant should be served the documents related to the appeal in accordance with Section 145 of the Civil Procedure Act and that the court should also decide on the applicant’s request for an interim order.

22. On 6 January 2006 the Ljubljana Local Court requested the applicant to pay the court’s fees and supplement her proposal to issue an interim order.

23. On 3 March 2006 the judgment of 4 June 2004 and the applicant’s appeal were served on the first defendant by posting them on the court’s notice board.

24. On 20 March 2006 the Ljubljana Local Court dismissed the applicant’s request for an interim order. The applicant appealed.

25. On 21 June 2006 the Ljubljana Higher Court dismissed the applicant’s appeals against the judgment of 4 June 2004 and the decision of 20 March 2006. The applicant lodged an appeal on points of law.

26. On 23 October 2008 the Supreme Court rejected the applicant’s appeal on points of law on procedural grounds. It held that the Ljubljana Local Court wrongly applied the Civil Procedure Act in allowing a modification of the disputed value at a later stage of the proceedings. It therefore considered as the disputed value the value that had been indicated by the applicant in her claim and accordingly concluded that therefore the disputed value had not reached the threshold for lodging an appeal on points of law. The applicant lodged a constitutional appeal.

27. On 26 November 2009 the Constitutional Court dismissed the applicant’s constitutional appeal. The decision was served on the applicant on 1 December 2009.

II. RELEVANT DOMESTIC LAW

28. For relevant domestic law, see the judgments Robert Lesjak v. Slovenia (no. 33946/03, 21 July 2009) and Tomažič v. Slovenia (no. 38350/02, 13 December 2007).

THE LAW

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

29. 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...”

30. The applicant further complained that the remedies available for excessive legal proceedings in Slovenia were 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.”

A. Admissibility

31. The Government argued that since the applicant’s appeal on points of law had been rejected on procedural grounds these proceedings had only related to the applicant’s procedural right to lodge an appeal on points of law. Therefore, the proceedings had in their opinion terminated on 7 July 2006 when the decision of the Ljubljana Higher Court had been served on the applicant and hence the application which had been lodged on 26 May 2010 had been lodged after the expiry of the six-month time-limit.

32. The Court recalls that according to its established case-law, any proceedings that could influence the outcome of proceedings before the lower courts fall within the scope of Article 6 (see, for example, Tričković v. Slovenia, no. 39914/98, §§ 27-29 and 36-41, 12 June 2001 Šubinski v. Slovenia, no. 19611/04, § 69, 18 January 2007).

33. It notes that in the present case, the Supreme Court rejected the applicant’s appeal on points of law after it had concluded that the lower court had made a mistake in allowing the applicant’s modification of the disputed value at a later stage of proceedings. The Court considers that the fact that the applicant trusted a decision of the lower court and expected that her appeal on points of law would be admissible cannot be used to the applicant’s detriment. It therefore concludes that the proceedings ended on 1 December 2009 when the decision of the Constitutional Court was served on the applicant.

34. The application is thus not inadmissible as being lodged out of time. The Court further notes that it is also not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Nor is it inadmissible on any other grounds (see, mutatis mutandis, Robert Lesjak v. Slovenia, cited above, §§ 40-53 and Tomažič v. Slovenia, cited above, §§ 41-45). It must therefore be declared admissible.

B. Merits

1. Article 6

35. The period to be taken into consideration began on 21 July 1997, when the applicant instituted proceedings and ended on 1 December 2009 when the decision of the Constitutional Court was served on the applicant. The proceedings thus lasted twelve years and four months at four levels of jurisdiction.

36. 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).

37. Having regard to the circumstances of the case and its case-law on the subject (see, Fetis d.o.o. v. Slovenia, 75366/01, §§ 15-18, 30 March 2006; Cundrič v. Slovenia, 57566/00, §§ 23-31, 30 March 2006; and Jeznik v. Slovenia, 32238/08, §§ 22-25, 20 June 2013) and in the absence of any arguments brought forward by the Government in respect of the above mentioned criteria, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

2. Article 13

38. 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). In view of its findings in the cases Tomažič v. Slovenia (cited above, §§ 41-45) and Robert Lesjak v. Slovenia (cited above, §§ 40-53), 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 their right to have their case heard within a reasonable time, as set forth in Article 6 § 1.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

39. 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

40. The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage.

41. The Government contested these claims.

42. The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards award her EUR 4,800 under that head.

B. Costs and expenses

43. The applicant also claimed EUR 5,132 for the costs and expenses incurred before the domestic courts and the Court.

44. The Government contested these claims.

45. 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 sum of EUR 300 for the proceedings before the Court.

C. Default interest

46. 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 4,800 (four thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 300 (three hundred 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 amount 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 3 April 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stephen PhillipsAngelika Nußberger
Deputy RegistrarPresident

 

Full & Egal Universal Law Academy