CASE OF GREŠOVNIK v. SLOVENIA

FIFTH SECTION

CASE OF GREŠOVNIK v. SLOVENIA

(Application no. 31594/08)

JUDGMENT

STRASBOURG

18 July 2013

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

In the case of Grešovnik 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 25 June 2013,

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

PROCEDURE

1. The case originated in an application (no. 31594/08) 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, Mr Mirko Grešovnik (“the applicant”), on 19 June 2008.

2. The applicant was represented by Mr M. Kramljak, a lawyer practising in Radlje ob Dravi. The Slovenian Government (“the Government”) were represented by their Agent.

3. On 26 September 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1948 and lives in Slovenj Gradec.

A. Main proceedings

5. On 3 December 1993 enforcement proceedings were instituted against the applicant by a company Adapta d.o.o. The writ of execution was issued on 7 December 1993. Following an objection to the writ of execution a decision upholding the objection was issued. The proceedings continued as contentious proceedings.

6. On 28 June 1994 the Convention came into force in respect of Slovenia.

7. In December 1994, following the reorganisation of the judiciary, the case was referred to the Slovenj Gradec District Court.

8. On 5 October 1998 the court held the first hearing.

9. On 11 November 1998 the court appointed a building expert in construction. The expert opinion was submitted on 14 June 1999.

10. The hearing scheduled for 10 July 2000 was postponed due to problems with serving of the notice of the hearing on the plaintiff. The plaintiff informed the court of the change of address on 14 August 2000.

11. On 1 September 2000 the court requested an authority from the new representative of the plaintiff. The form was submitted to the court on 5 February 2001.

12. The hearing scheduled for 23 March 2001 was postponed on the request of the plaintiff.

13. Between 20 April 2001 and 12 April 2002 the court held two hearings.

14. On 12 April 2002, after the last hearing, the court delivered a judgment. Appeals were lodged by both parties.

15. On 24 May 2002 the case-file was transferred to the Maribor Higher Court.

16. On 18 September 2003 the case was returned to the first-instance court due to the fact that the company Adapta d.o.o. had been deleted ex-officio from the Register of Companies on 11 June 2003.

17. On 2 October 2003 the first-instance court issued a decision on the stay of proceedings.

18. On 17 March 2004 the court received a statement from the legal successor of the plaintiff, informing the court of its intention to continue the proceedings.

19. On 23 March 2004 the court issued a decision on the continuation of proceedings. In addition, on 29 March 2004 the applicant lodged a counter-claim.

20. On 15 April 2004 the first-instance court again sent the case-file to the Maribor Higher Court for consideration.

21. On 6 December 2005 the court upheld the first-instance judgment. The judgment was served on the applicant’s representative on 12 January 2006.

B. Proceedings concerning the appeal on points of law and motion to reinstate the case

22. On 16 March 2006 the applicant lodged an appeal on points of law together with a motion to reinstate the case, since the deadline for the appeal on points of law had elapsed.

23. On 26 May 2006 the Slovenj Gradec District Court held a hearing and rejected the applicant’s motion to reinstate the case as unfounded and the appeal on points of law for being lodged out of time. The applicant appealed.

24. On 29 January 2007 the appeal was rejected. The applicant lodged an appeal on points of law.

25. On 28 August 2007 the Supreme Court rejected the appeal on points of law. The applicant lodged a constitutional appeal (see paragraph 34 below).

C. Enforcement proceedings

26. On 24 February 2006 the first-instance court issued a writ of execution based on the first- and second-instance judgments (see paragraphs 14 and 21 above). The applicant lodged an objection.

27. On 6 April 2006 the court rejected the objection. The applicant appealed.

28. On 16 May 2006 the Maribor Higher Court rejected the appeal.

29. On 13 June 2006 the creditor lodged a request for a new means of enforcement, namely the sale of movable property.

30. On 15 June 2006 the request was upheld.

31. On 24 May 2007 the court appointed a new enforcement officer, who issued a report informing the court the attachment of movable property had been unsuccessful.

32. On 28 May 2008 the court issued a decision on the termination of enforcement proceedings.

D. The Constitutional Court’s decision

33. On 10 December 2007 the Constitutional Court rejected the applicant’s constitutional appeals.

34. The Constitutional Court rejected the appeal against the decisions concerning the rejection of the motion to reinstate the case as unfounded (see paragraphs 23-25). The appeal against the decision concerning the enforcement proceedings was rejected as having been lodged out of time (see paragraphs 27 and 28 above). The appeal against the decisions in the main proceedings was rejected for non-exhaustion of domestic remedies, since the applicant had failed to properly lodge the appeal on points of law (see paragraphs 20-21 and 22-25 above).

II. RELEVANT DOMESTIC LAW

35. For relevant domestic law see Beguš v. Slovenia (no. 25634/05, 15 December 2011).

THE LAW

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

36. 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 ...”

37. In substance, 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 [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.”

A. Admissibility

38. Firstly, the Government argued that the complaints concerning the main proceedings were introduced out of time. According to them the main proceedings and the enforcement proceedings should be strictly separated. The main proceedings ended on 6 December 2005 (see paragraph 21 above), when the final decision on the applicant’s civil rights was rendered, which was more than six months before the application before the Court had been introduced.

39. Secondly, as to the proceedings concerning the applicant’s motion to reinstate the case and the appeal on points of law they argued incompatibility ratione materiae. They stated that the latter part of the proceedings did not concern a decision on the applicant’s civil rights and that the court merely decided on the applicant’s procedural right to lodge an appeal on points of law. In this connection, they argued the same for the proceedings before the Constitutional Court. In their view the Constitutional Court did not decide on the merits of the appeal and therefore no civil rights were at stake.

40. Thirdly, the Government argued non-exhaustion of domestic remedies as regards enforcement proceedings. They stated that the proceedings were pending at first-instance on 1 January 2007, when the Act on the Protection of the Right to a Trial without undue Delay (“the 2006 Act”) became operational and that the applicant had failed to avail himself of the domestic remedies.

41. The applicant contested these arguments disagreeing, in particular, with the Government’s distinction between the main proceedings and enforcement proceedings.

42. The Court accepts the Government’s objection as regards the proceedings concerning the reinstatement of the case and the appeal on points of law and rejects this part of the proceedings, including the part before the Constitutional Court, as incompatible ratione materiae in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

43. The Court however does not agree with applying the above reason of inadmissibility to the proceedings before the Constitutional Court concerning the main proceedings. In this connection it notes that the constitutional appeal was in this part rejected for being lodged out of time. The Court thus finds that this part of the application should be rejected under Article 35 § 1 and 4 of the Convention for non-exhaustion of domestic remedies.

44. As to the remaining arguments, the Court observes that the present case is similar to the case of Beguš v. Slovenia (no. 25634/05, §§ 29-32, 15 December 2011) and finds that the same principles concerning admissibility apply also in the case at hand, for the reasons set out below.

45. Concerning the Government’s first argument, the Court notes that according to the Court’s case-law (see, Di Pede v. Italy and Zappia v. Italy judgments of 26 September 1996, Reports of Judgments and Decisions 1996-IV, pp. 1383-1384, §§ 20-24, and pp. 1410-1411, §§ 16-20, respectively) the determination of the applicant’s civil rights in the present case lasted until the termination of the enforcement proceedings. Therefore, since the enforcement proceedings were not terminated until 28 May 2008, when the decision on termination of proceedings was issued, the Court considers that the application has been lodged in time and rejects the Government’s argument.

46. As regards the Government’s third argument concerning the enforcement proceedings, the Court entirely follows its findings in the Beguš v. Slovenia judgment (ibid., § 31) and rejects the part of the application for non-exhaustion of domestic remedies in accordance with Article 35 §§ 1 and 4 of the Convention.

47. Having regard to the above the Court notes that the complaint concerning the length of the main proceedings is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds (ibid., § 30). It must therefore be declared admissible.

B. Merits

1. Article 6

48. The applicant argued that the proceedings lasted unreasonably long and that none of the delays were attributable to him.

49. The Government did not dispute the applicant’s arguments.

50. 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).

51. The Court notes that the relevant period started to run on 28 June 1994, the date when the Convention came into force in respect of Slovenia, and ended on 6 December 2005, when the appeal court’s judgment was served on the applicant. The proceedings lasted eleven years and five months at two levels of jurisdiction.

52. Having examined all the material submitted to it and having regard to its case-law on the subject (see Beguš v. Slovenia, §§ 36-37, cited above; Pardus v. Poland, no. 13401/03, §§44-46, 15 June 2010; Mežan v. Slovenia, no. 39154/02, §§ 20-23, 1 June 2006; and Nose v. Slovenia, no. 27102/02, §§ 18-22, 21 December 2006), the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable-time” requirement.

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

2. Article 13

53. 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).

54. The Court notes that the proceedings terminated before the 2006 Act became operational. The Court further notes that the only remedies available to the applicant were therefore those that were found ineffective in its judgment Lukenda v. Slovenia (no. 23032/02, 6 October 2005).

55. Accordingly, the Court considers 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 his right to have his case heard within a reasonable time, as set forth in Article 6 § 1.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

56. The applicant complained under Articles 6, 13 and 14 of the Convention about the unfairness of the main proceedings. He alleged that the domestic courts have erred in the application of law and determination of the facts by rejecting his evidence and giving poorly reasoned and manifestly wrong decisions.

57. He further complained that the appeal on points of law was rejected on formalistic grounds, which was the attorney’s fault, who provided him with the wrong legal advice.

58. He also complained that in the enforcement stage of the proceeding the court erroneously calculated the amount of default interest, which were already outrageously high due to the duration of the proceedings.

59. Finally, the applicant complained that the Constitutional Court’s decision lacked reasoning.

60. Even assuming that the domestic remedies can be considered as properly exhausted (see paragraphs 34 and 43 above), the Court in any event finds that 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 Articles relied on by the applicants. It follows that this part of the application 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

61. 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

62. The applicant claimed 8,500 euros (EUR) in respect of non-pecuniary damage.

63. The Government contested the claim.

64. The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards award him the amount claimed, namely EUR 8,500 under that head.

B. Costs and expenses

65. The applicant also claimed EUR 4,500 for the costs and expenses incurred before the Court.

66. The Government contested the claim.

67. The Court notes that although the applicant was reminded by the Court of the requirements concerning just satisfaction claims set out in Rule 60 of the Rules of the Court, he had not itemised or substantiated his claims (see S.I. v. Slovenia, no. 45082/05, 13 October 2011, § 87). The Court therefore makes no award under this head.

C. Default interest

68. 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 excessive length of proceedings and the lack of an effective remedy 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 8,500 (eight thousand five hundred euros), plus any tax that may be chargeable to the applicant, 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;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 18 July 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stephen PhillipsAngelika Nußberger
Deputy RegistrarPresident

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