FIFTH SECTION
CASE OF JEZNIK v. SLOVENIA
(Application no. 32238/08)
JUDGMENT
STRASBOURG
20 June 2013
This judgment is final but it may be subject to editorial revision.
In the case of Jeznik 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 28 May 2013,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 32238/08) 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, Ms Marija Jeznik (“the applicant”), on 1 July 2008.
2. The applicant was represented by Odvetniška Družba Marčič in Ostali, O.P., D.N.O., a law firm from Slovenj Gradec. The Slovenian Government (“the Government”) were represented by their Agent.
3. On 27 April 2012 the application was communicated to the Government. In accordance with Protocol No. 14 the application was assigned to a committee of three Judges.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1940 and lives in Vuzenica.
5. In 1994 the applicant began investing in commercial papers of the company Kompas Consulting d.d. via the company Kompas Maribor D.O.O. At the end of 1994 such trading was prohibited by the Securities Market Act however the applicant continued with the activity until 1996.
6. In 1996 the applicant instituted enforcement proceedings against the company Kompas Maribor D.O.O. before the Maribor District Court seeking the payment of lost investments from Kompas Maribor for not informing her of the legislative amendments and continuing with the trading of commercial papers. She further complained before the domestic courts that as the company Kompas Consulting d.d. was bankrupt, she could only receive back a small proportion of her investments in bankruptcy proceedings.
7. On 14 October 1996 the Maribor District Court issued a writ of execution.
8. On 12 November 1996 following an objection the case was referred to contentious proceedings.
9. On 4 February 1998 the Maribor District Court rendered a judgment rejecting the applicant’s request. She appealed.
10. On 24 November 1998 the Maribor Higher Court upheld the appeal and remitted the case for re-examination. The second-instance court found that as the applicant had clarified that she was seeking compensation for damages only in the appeal phase, this constituted a new fact that the first-instance court would have to deliberate upon.
11. On 24 October 2001 the Maribor District Court rendered a judgment. The court found that given the contractual arrangements the company Kompas Maribor D.O.O. could not be held responsible for the damages sustained. The applicant appealed.
12. On 15 September 2004 the Maribor Higher Court upheld the first‑instance judgment and rejected the appeal. The applicant lodged an appeal on points of law.
13. On 25 January 2007 the Supreme Court rejected her appeal. She lodged a constitutional appeal.
14. On 10 December 2007 the Constitutional Court rejected her appeal.
II. RELEVANT DOMESTIC LAW
15. For relevant domestic law see Tomažič v. Slovenia (no. 38350/02, 13 December 2007).
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION
16. 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 ...”
17. 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
18. The Government offered a settlement proposal made by reference to section 25 of the 2006 Act to the applicant in the form of a written statement pursuant to section 15 of the said act acknowledging the violation of the right to a trial in a reasonable time. The applicant did not accept the offer.
19. The Court observes that the transitional provision of the 2006 Act, namely section 25, provides for the procedure to be followed in respect of applications where the violation of the “reasonable time” requirement has already ceased to exist and which were lodged with the Court before 1 January 2007. Notwithstanding the fact that the settlement proposal was made by reference to section 25, as the proceedings to which the applicant was a party continued before the Supreme Court after the new legislation became operational, that provision did not give a remedy in the applicant’s case.
20. As regards the application of other provisions of the 2006 Act, in particular its section 19, the Court notes that the proceedings in the present case had been finally resolved before the 2006 Act became operational and have subsequently continued before the Supreme Court. Having regard to the 2006 Act as in force at the material time (see by contrast, Žurej v. Slovenia, (dec.), no. 24342/04, 18 October 2007, § 17), the applicant had no possibility to claim compensation for the delays incurred in the proceedings (see mutatis mutandis, Tomažič v. Slovenia, no. 38350/02, 13 December 2007, §§ 41-45 and Lesjak v. Slovenia (no. 33946/03, 21 July 2009, §§ 54-55).
21. The Court notes that this complaint 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. It must therefore be declared admissible.
B. Merits
1. Article 6
22. The period to be taken into consideration began on 14 October 1996, the date when the writ of execution was issued, and ended on 10 December 2007, when the Constitutional Court rejected the applicant’s appeal. The proceedings thus lasted eleven years and two months at four levels of jurisdiction.
23. 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).
24. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Bedi v. Slovenia, no. 24901/02, §§ 18-20, 13 April 2006; Schliederer v. Germany, no. 2651/07, §§ 26-31, 21 October 2010; Nitschke v. Sweden, no. 6301/05, §§ 61-66, 27 September 2007; and FPK GROSS, OOO v. Ukraine, no. 18608/05, §§ 20-23, 16 February 2012).
25. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, 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.
1. Article 13
26. 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).
27. In the present case the Court is not persuaded that the applicant could have had access to the compensation claim and finds the remedies of the 2006 Act ineffective (see paragraphs 18-21 above). As regards the remedies available prior to the implementation of the 2006 Act, the Court sees no reason to take a different approach from that taken in earlier cases in which those remedies were considered ineffective (see Lukenda v. Slovenia, no. 23032/02, 6 October 2005).
28. 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 her right to have her case heard within a reasonable time, as set forth in Article 6 § 1.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
29. Lastly, the applicant complained about the alleged unfairness of the proceedings.
30. Having examined the above complaints, 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 Articles relied on by the applicants. It follows that the remaining complaints concerning the first set of proceedings 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
31. 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
32. The applicant company claimed 10,000 euros (EUR) in respect of pecuniary and non-pecuniary damage.
33. The Government contested the claim.
34. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 3,200 in respect of non-pecuniary damage.
B. Costs and expenses
35. The applicant company also claimed EUR 3,017 for the costs and expenses incurred before the Court and the domestic courts.
36. The Government contested the claim.
37. The Court notes that although the applicant was reminded by the Court of the requirements she has had not itemised or explained her claims. The Court therefore makes no award under this head.
C. Default interest
38. 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 the 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 3,200 (three thousand two hundred 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 amounts 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 20 June 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen PhillipsAngelika Nußberger
Deputy RegistrarPresident
Full & Egal Universal Law Academy