CASE OF BUBNIK v. SLOVENIA

FIFTH SECTION

CASE OF BUBNIK v. SLOVENIA

(Application no. 72072/12)

JUDGMENT

STRASBOURG

16 October 2014

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

In the case of Bubnik v. Slovenia,

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

Angelika Nußberger, President,
Boštjan M. Zupančič,
Vincent A. de Gaetano, judges,
and Stephen Phillips, Deputy Section Registrar,

Having deliberated in private on 23 September 2014,

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

PROCEDURE

1. The case originated in an application (no. 72072/12) 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 Nataša Bubnik (“the applicant”), on 7 November 2012.

2. The applicant was represented by Mr N. Kljajić, a lawyer practising in Izola. 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 1973 and lives in Koper.

A. Civil proceedings

5. On 17 November 1995 the applicant instituted civil proceedings before the Koper District Court concerning the division of joint property.

6. On 24 September 1997 the Koper District Court rejected the applicant’s claim on procedural grounds. The applicant appealed.

7. On 18 February 1998 the Koper Higher Court partially upheld the appeal of the applicant and remitted the case back to the first instance court.

8. On 14 August 2001 the Koper District court issued a partial judgment. Both parties appealed.

9. On 22 October 2002 the Koper Higher Court dismissed the appeals.

10. On 1 March 2007 the Koper District Court issued a judgment concerning the remainder of the applicant’s claim. The applicant appealed.

11. On 18 November 2008 the Koper Higher Court dismissed the applicant’s appeal concerning the decision on the main issue. The court however annulled the decision on the costs of proceedings and remitted that issue back to the first instance court.

12. On 18 August 2008 the Koper District Court issued a decision on the costs of proceedings. The applicant appealed.

13. On 18 November 2008 the Koper Higher Court dismissed the applicant’s appeal. The decision was served on the applicant’s representative on 10 December 2008.

B. Proceedings concerning a claim for non-pecuniary damage on account of the alleged delays in the above proceedings

14. On 29 September 2008 the applicant lodged an application for settlement with the State Attorney’s Office with a view to reaching an agreement on just satisfaction on account of the delays in the civil proceedings.

15. On 26 May 2008 the State Attorney’s Office dismissed the applicant’s claim.

16. On 25 November 2009 the applicant, relying on Act on the Protection of the Right to a Trial without Undue Delay (“the 2006 Act”), lodged a claim with the Koper Local Court seeking compensation in the amount of EUR 5,800 for non-pecuniary damage incurred as a result of the length of the civil proceedings.

17. On 25 November 2010 the Koper Local Court dismissed the applicant’s claim. The applicant appealed.

18. On 17 January 2011 the Koper Higher Court upheld the applicant’s appeal and remitted the case back to the first instance court.

19. In the course of proceedings, the State on 5 April 2011 acknowledged the claim of the applicant in the amount of 1,200 EUR.

20. On 16 November 2011 the Koper Local Court gave a judgment. The court found that the applicant’s right to a trial within a reasonable time had been breached and that, in addition to the 1,200 EUR, the State was to pay a further EUR 420 to the applicant for non-pecuniary damages and to reimburse the applicant EUR 275 in respect of costs and expenses incurred in the proceedings. In determining the amount of compensation, the court considered that the applicant had contributed to the duration of the proceedings by amending her claim several times and submitting written observations directly at the hearings which had as a consequence the adjournment of three hearings. Accordingly it deducted 10% from the amount to be awarded. The applicant appealed.

21. On 17 April 2012 the Koper Higher Court partially upheld the applicant’s appeal and modified the decision, ruling that the State was to pay the applicant in total EUR 2,500 as non-pecuniary damages and further EUR 586 in respect of costs and expenses incurred in the proceedings. The higher court also noted the applicant’s contribution to the duration of the proceedings.

II. RELEVANT DOMESTIC LAW

22. For relevant domestic law see Grzinčič v. Slovenia, no. 26867/02, 3 May 2007.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

23. 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...”

A. Admissibility

24. The Government objected that the applicant had failed to exhaust domestic remedies, as in the proceedings concerning her claim for non‑pecuniary damage on account of length of proceedings she had not lodged a constitutional complaint against the decision of the higher court or a petition for the review of the constitutionality of the 2006 Act.

25. The applicant challenged the Government’s arguments, observing that she had exhausted all available domestic remedies and that she would not have succeeded with a constitutional complaint or a petition for the review of the constitutionality of the 2006 Act.

26. The Court notes that in the proceedings concerning the just satisfaction for non-pecuniary damage under the 2006 Act the provisions of the Civil Procedure Act concerning small claims apply. In accordance with Article 55a of the Constitutional Court Act, a constitutional complaint is not admissible in such cases, but may only exceptionally be accepted for consideration in especially well-founded cases which would exceed the importance of the case in question.

27. However, the Government provided no domestic case-law to show how a constitutional complaint or a petition for the review of the constitutionality of the 2006 Act could be an effective remedy in this type of cases (see, mutatis mutandis, Eberhard and M. v. Slovenia, nos. 8673/05 and 9733/05, § 107, 1 December 2009). In the absence of any such examples of case-law, the Court is not convinced that the remedies relied on by the Government can be considered effective for the purposes of Article 35 § 1 of the Convention.

28. It follows that the Government’s objection of non-exhaustion of domestic remedies should be dismissed.

29. The Court must further determine whether the applicant can still claim to be a victim of the alleged violation within the meaning of Article 34 of the Convention.

30. Having regard to the case-law on the subject-matter, the Court notes that the applicant’s victim status will depend on whether the redress afforded to her at the domestic level was adequate and sufficient having regard to Article 41 of the Convention (see, among others, Jakupović v. Croatia, no. 12419/04, § 16, 31 July 2007; Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 178-213, ECHR 2006-V; and Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006-V).

31. The Court notes that in the domestic proceedings the applicant was awarded 2,500 euros (EUR). Having regard to the length of the civil proceedings, the aforementioned sum represented less than 30% of what the Court would be likely to award in the circumstances of the case in accordance with its practice. The redress obtained by the applicant at the domestic level was thus insufficient (see Cocchiarella, cited above, §§ 106‑107; see also Madžarević v. Slovenia, no. 38975/05, §§ 36-39, 15 May 2012). The applicant can accordingly still claim to be a “victim” of a breach of her right to a hearing within a reasonable time.

32. The Court further notes that the complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention, nor it is inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

33. The period to be taken into consideration began on 17 November 1995 and ended on 10 December 2008. The proceedings thus lasted thirteen years and one month at two levels of jurisdiction.

34. 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).

35. Having regard to the circumstances of the case and its case-law on the subject, and notwithstanding the applicant’s contribution to the duration of the proceedings (see, Tomažič v. Slovenia, no. 38350/02, §§ 54-61, 13 December 2007; Rumpf v. Germany, no. 46344/06, §§ 41-46, 2 September 2010, and Jazbec v. Slovenia, no. 31489/02, §§ 64-69, 14 December 2006) the Court considers that the length of the proceedings in the instant case was excessive and failed to meet the “reasonable time” requirement.

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

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

37. The applicant further complained that since she had not received adequate compensation for non-pecuniary damages she had not had at her disposal an effective remedy as regards her complaint about the length of proceedings. She relied on 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.”

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 the reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000‑XI). The “effectiveness” of a “remedy” within the meaning of Article 13, however, does not depend on the certainty of a favourable outcome for the applicant (see Kudła, cited above, § 157).

39. The Court recalls that it has already found in the case of Grzinčič v. Slovenia (no. 26867/02, cited above), followed by the decision in Korenjak v. Slovenia ((dec.) no. 463/03, 15 May 2007), basing its conclusions on an assessment of the legislative provisions of the 2006 Act, that the aggregate of remedies provided for in cases involving excessively long proceedings pending at first and second instance was effective in the sense that the remedies were, in principle, capable of both preventing the continuation of the alleged violation of the right to a hearing without undue delay, and of providing adequate redress for any violation that has already occurred (Grzinčič, cited above, § 98).

40. Having regard to the way the provisions of the 2006 Act were applied in the applicant’s case (see paragraphs 14-21 above) the Court sees no reason to depart from the above finding. It notes that the domestic courts accepted the applicant’s claim for non-pecuniary damages, found a violation of her right to a trial within reasonable time and awarded her compensation. The mere fact that the compensation awarded to the applicant at the domestic level does not correspond to the amounts awarded by the Court in comparable cases does not render the remedy on the whole ineffective (see, for examples, Jakupović, cited above, § 28).

41. It follows that this 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

42. 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

43. The applicant claimed further EUR 5,000 (EUR) in respect of non‑pecuniary damage.

44. The Government contested the claim.

45. The Court reiterates that where an applicant has resorted to an available domestic remedy and thereby obtained a finding of a violation and has been awarded compensation, but can nevertheless still claim to be a “victim”, the amount to be awarded under Article 41 may be less than the amounts the Court has awarded in similar cases. In that case an applicant, with regard to the period considered by the domestic authority, must be awarded the difference between the amount obtained in the domestic proceedings and an amount that would not have been regarded as manifestly unreasonable if it had been awarded by the competent domestic authority. (see Cocchiarella, cited above, §§ 139-141; Jakupović, cited above, §§ 33‑35, and Solárová and Others v. Slovakia, no. 77690/01, § 62, 5 December 2006).

46. The Court notes that the applicant was awarded EUR 2,500 by the domestic authorities. Having regard to the circumstances of the present case, the Court, ruling on an equitable basis awards the applicant a further EUR 2,700 in respect of non-pecuniary damage.

B. Costs and expenses

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

C. Default interest

48. 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 Article 6 § 1 admissible and the remainder of the application inadmissible;

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

3. Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 2,700 (two thousand seven hundred euros);

(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 16 October 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stephen PhillipsAngelika Nußberger
Deputy RegistrarPresident

 

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