CASE OF BITENC v. SLOVENIA

FIFTH SECTION

CASE OF BITENC v. SLOVENIA

(Application no. 34747/06)

JUDGMENT

STRASBOURG

30 January 2014

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

In the case of Bitenc 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 7 January 2014,

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

PROCEDURE

1. The case originated in an application (no. 34747/06) 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 Marženka Bitenc (“the applicant”), on 16 August 2006.

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

3. On 8 April 2013 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

1. The main proceedings

4. The applicant was born in 1950 and lives in Ljubljana.

5. On 8 October 1993 the applicant, following her temporary suspension from work, instituted proceedings before the Ljubljana Labour and Social Court against her employer, company D.

6. In December 1993, following her dismissal from work, the applicant instituted further proceedings against D. before the Ljubljana Labour and Social Court. The actions were joined.

7. On 8 December 1995 the Ljubljana Labour and Social Court upheld the applicant’s action concerning the suspension and dismissal and rejected the part of the applicant’s action against the decision of D. ordering the applicant to pay compensation. D. appealed.

8. On 29 May 1997 the Higher Labour and Social Court upheld the decision on rejection of the applicant’s action against the order to pay compensation and annulled the decision upholding the applicant’s action and remitted the case back to the first instance court.

9. On 11 September 1998 the Ljubljana Labour and Social Court upheld the applicant’s action against the dismissal and ordered D. to pay the applicant the outstanding salaries for the period between the dismissal and the issuing of the decision and dismissed the action against the suspension. D. appealed.

10. On 6 May 1999 the Higher Labour and Social Court dismissed the appeal of the defendant.

11. On 12 August 1999 the applicant instituted enforcement proceedings against D. before the Ljubljana Local Court on the basis of the final judgment issued in the labour proceedings, concerning the payment of SIT 4,931,874.

12. On 18 October 1999 the Ljubljana Local Court issued an enforcement order against D. D. lodged an objection.

13. On 5 April 2000 the Ljubljana Higher Court dismissed the objection of D. and upheld the enforcement order. The enforcement order became final.

14. On 18 July 2000 Ljubljana Local Court sent the enforcement order for execution to the Agency of the Republic of Slovenia for Payments.

15. On 25 September 2000 the Ljubljana District Court decided to open bankruptcy proceedings against D.

16. On 18 November 2000 the applicant lodged her outstanding claims against D., including those subject to enforcement proceedings, in the bankruptcy proceedings.

17. On 19 December 2000 the Ljubljana District Court in the bankruptcy proceedings acknowledged the applicant’s claims, apart from a claim concerning redundancy payment.

18. On 9 February 2001 the applicant instituted proceedings concerning the redundancy payment before the Ljubljana Labour and Social Court.

19. On 6 March 2001 the Ljubljana Local Court suspended the enforcement proceedings due to the pending bankruptcy proceedings.

20. On 9 April 2001 the Ljubljana Labour and Social Court issued a declaratory default judgment acknowledging the applicant’s claim concerning redundancy payment.

21. On 16 September 2005 the Ljubljana District Court terminated the bankruptcy proceedings and ordered D. to be struck off the court register of companies. The applicant received no payment from the bankrupt’s estate.

22. On 30 September 2005 the notice of terminated bankruptcy proceedings and the strike-off of D. from the court register of companies was published in the Official Gazette.

23. According to the applicant she was not aware of the termination of the bankruptcy proceedings and the strike-off of D. from the court register until 3 May 2006 when she inspected the case file. Further to her discovery she requested the Ljubljana District Court for a copy of the decision of 16 September 2005 which she received on 12 May 2006.

24. On 11 April 2011 the Ljubljana Local Court stayed the enforcement proceedings due to terminated bankruptcy proceedings and strike-off of D. from the court register.

2. The proceedings under the 2006 Act on Protection of the Right to a Trial within Reasonable Time (“the 2006 Act”)

25. On 17 September 2010 the respondent Government were given notice of the application. The Government was asked to provide information as to whether section 25 of the 2006 Act applied in respect of the present case, which would enable the applicant to avail herself of domestic settlement proceedings before the State Attorney’s Office.

26. Subsequently, on 3 February 2011, the Government submitted that section 25 of the 2006 Act was not applicable in the present case since they considered that the application had been lodged out of the six-month time-limit. Therefore, the Government refused to offer the applicant a settlement proposal under section 25 of the 2006 Act.

II. RELEVANT DOMESTIC LAW AND PRACTICE

27. For relevant domestic law, see Lukenda v. Slovenia, no. 23032/02, §§ 9-27, 6 October 2005; Grzinčič v. Slovenia, no. 26867/02, §§ 38-48; Sedminek v. Slovenia, no. 9842/07, §§ 31-33, 24 October 2013.

THE LAW

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

28. 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...”

29. 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

1. Compliance with the six-month time-limit

30. The Government raised an objection, arguing that the application had been lodged after the expiry of the six-month time-limit. They argued that even though the enforcement proceedings were still pending until 11 April 2011 the proceedings de facto terminated with the termination of the bankruptcy proceedings and that therefore the six-month time-limit should be calculated from date of the publication on termination of bankruptcy proceedings in the Official Gazette, hence from 30 September 2005.

31. The Court holds that in the present case the determination of the applicant’s “civil rights” within the meaning of Article 6 § 1 of the Convention began in the labour proceedings and continued in the enforcement and the bankruptcy proceedings (see Di Pede v. Italy, 26 September 1996, § 22, Reports of Judgments and Decisions 1996‑IV; Sukobljević v. Croatia, no. 5129/03, § 37, 2 November 2006). Therefore it considers the decision on the termination of the of the enforcement proceedings to be the final decision for the purpose of Article 35 § 1 of the Convention (see Silva Pontes v. Portugal, 23 March 1994, § 33, Series A no. 286‑A).

32. The Government’s objection as to the inadmissibility of the complaints on the basis of the six-month rule must therefore be dismissed.

2. Exhaustion of domestic remedies

33. The Government further argued that, should the Court conclude that the application was lodged within the six-month time-limit, the applicant in any case failed to exhaust domestic remedies in respect of the above complaint since the enforcement proceedings were still pending after 1 January 2007 when the 2006 Act became operational.

34. The Court notes that while the enforcement proceedings are the continuation of the previous labour proceedings and the bankruptcy proceedings, they nevertheless represent a distinct stage of the proceedings with regard to the remedies available in respect of complaints of undue delay. In this connection, the Court points out that it has previously assessed the effectiveness of remedies in cases against Slovenia by distinguishing between different stages of proceedings or sets of proceedings (see Sirc v. Slovenia, no. 44580/98, §§ 166-178, 8 April 2008; Blekić v. Slovenia (dec.), no. 14610/02, §§ 72-85; Robert Lesjak v. Slovenia, no. 33946/03, §§ 40-53, 21 July 2009; Beguš v. Slovenia, no. 25634/05, §§ 27-31, 15 December 2011).

35. The Court observes that the labour and the bankruptcy proceedings had terminated on 6 May 1999 and 16 September 2005 respectively, hence prior to the implementation of the 2006 Act. It notes that the objections and arguments put forward by the Government in cases involving proceedings terminated before the implementation of the 2006 Act have been rejected in earlier cases (see Grzinčič, cited above, §§ 75 and 76) and sees no reason to reach a different conclusion in the present case.

36. On the other hand, as regards the enforcement proceedings, the Court notes that they continued after the entry into force of the 2006 Act. In the absence of any plausible arguments as to why the remedies provided for by the 2006 Act would be ineffective (see Blekić, cited above, § 31), it finds that this part of the application must be rejected for non-exhaustion of domestic remedies in accordance with Article 35 §§ 1 and 4 of the Convention.

3. Conclusion

37. The Court notes that the complaints concerning the length of the labour and the bankruptcy 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

1. Article 6

38. The period to be taken into consideration began on 28 June 1994, when the Convention entered into force with respect to Slovenia and ended on 16 September 2005, when the bankruptcy proceedings had terminated. The proceedings thus lasted eleven years and three months at three levels of jurisdiction.

39. 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). The Court further reiterates that special diligence is necessary in labour disputes (Ruotolo v. Italy, judgment of 27 February 1992, Series A no. 230-D, p. 39, § 17; Bauer v. Slovenia, no. 75402/01, § 19, 9 March 2006).

40. In assessing the reasonableness of the time that elapsed after the Convention came into force with respect to Slovenia, account must be taken of the state of proceedings at the time. The Court notes in this connection that at the relevant time the proceedings had been pending for nine months.

41. Having regard to the circumstances of the case and its case-law on the subject (see, Žolger v. Slovenia, no. 75688/01, §§ 17-19, 30 March 2006; Puž v. Slovenia, no. 76199/01, §§ 20-22, 30 March 2006; Cekuta v. Slovenia, no. 77796/01, §§ 19-21, 6 April 2006); 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.

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

2. Article 13

43. 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).

44. In view of its findings in the cases Lukenda v. Slovenia (cited above, §§ 84-88) and Ribič v. Slovenia (no. 20965/03, §§ 73-42, 19 October 2010), 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 her right to have her case heard within a reasonable time, as set forth in Article 6 § 1.

II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION

45. Lastly, the applicant complained under Article 14 of the Convention that she was discriminated against on the grounds of her invalidity.

46. Having examined the above complaint, the Court finds, in the light of all the materials in its possession, and in so far as the matters complained of are within its competence, that they do not disclose any appearance of a violation of the Article 14 relied on by the applicant. It follows that the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

47. 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

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

49. The Government contested her claim.

50. The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards her EUR 8,000 under that head.

B. Costs and expenses

51. The applicant made no claim as regards the costs and expenses incurred before the Court. The Court therefore makes no award under this head.

C. Default interest

52. 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 complaint concerning the length of labour and bankruptcy proceedings and the effectiveness of remedies in this respect admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 and Article 13 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months EUR 8,000 (eight thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(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.

Done in English, and notified in writing on 30 January 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stephen PhillipsAngelika Nußberger
Deputy RegistrarPresident

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