THIRD SECTION
CASE OF ŽOLGER v. SLOVENIA
(Application no. 75688/01)
JUDGMENT
STRASBOURG
30 March 2006
FINAL
30/06/2006
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Žolger v. Slovenia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
MrJ. Hedigan, President,
MrB.M. Zupančič,
MrL. Caflisch,
MrsM. Tsatsa-Nikolovska,
MrE. Myjer,
MrDavid Thór Björgvinsson,
MrsI. Ziemele, judges,
and MrV. Berger, Section Registrar,
Having deliberated in private on 9 March 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 75688/01) 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 Vinko Žolger (“the applicant”) on 23 October 2001.
2. The applicant was represented by the Verstovšek lawyers. The Slovenian Government (“the Government”) were represented by their Agent, Mr L. Bembič, State Attorney-General.
3. The applicant alleged under Article 6 § 1 of the Convention that the length of the proceedings before the domestic courts to which he was a party was excessive. In substance, he also complained about the lack of an effective domestic remedy in respect of the excessive length of the proceedings (Article 13 of the Convention).
4. On 16 September 2003 the Court decided to communicate the complaints concerning the length of the proceedings and the lack of remedies in that respect to the Government. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time.
THE FACTS
5. The applicant was born in 1947 and lives in Grobelno.
6. On 6 August 1989 the applicant was run over at the border crossing between Slovenia (at the time forming part of Federal Republic of Yugoslavia) and Austria by a caravan driven by a Dutch citizen who had taken out insurance with the insurance company CBS.
7. On 8 November 1989 the applicant instituted civil proceedings against the insurance companies ZT and CBS in the Celje Basic Court, Šentjur Unit (Temeljno sodišče v Celju, Enota Šentjur) seeking damages for the injuries sustained.
Following the first hearing, which was held on 22 December 1989, the court appointed medical and financial experts.
On 1 January 1995 the case was transferred to the Celje District Court (Okrožno sodišče v Celju) following the reorganization of the Slovenian courts.
On 23 February 1995 the Ministry of Justice of the Republic of Slovenia requested the Hertogenbosch Municipal Court (the Netherlands) to hear a witness.
Between 23 August 1994 and 21 June 1999 the applicant made fourteen requests that a date be set for a hearing.
Between 17 December 1997 and 16 April 2003 he lodged twenty-four preliminary written submissions and/or adduced evidence.
Of the seven hearings held between 4 December 1997 and 13 May 2003 one was adjourned at the request of the applicant.
During the proceedings the court appointed three medical experts, a road traffic expert and an expert on financial accounting.
The judgment upholding in part the applicant’s claims was served on the applicant on 12 June 2003.
8. On 16 June 2003 the applicant appealed to the Celje Higher Court (Višje sodišče v Celju). ZT and CBS cross-appealed.
On 14 April 2004 the court allowed the applicant’s appeal in part and amended the first-instance court judgment. The court dismissed the ZT’s and CBS’s appeal.
The judgment was served on the applicant on 17 June 2004.
9. On 30 June 2004 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče).
The proceedings are still pending.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION
10. The applicant complained about the excessive length of the proceedings. He relied on 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...”
11. 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
12. The Government pleaded non-exhaustion of domestic remedies.
13. The applicant contested that argument, claiming that the remedies available were not effective.
14. The Court notes that the present application is similar to the cases of Belinger and Lukenda (Belinger v. Slovenia (dec.), no. 42320/98, 2 October 2001, and Lukenda v. Slovenia, no. 23032/02, 6 October 2005). In those cases the Court dismissed the Government’s objection of non-exhaustion of domestic remedies because it found that the legal remedies at the applicant’s disposal were ineffective. The Court recalls its findings in the Lukenda judgment that the violation of the right to a trial within a reasonable time is a systemic problem resulting from inadequate legislation and inefficiency in the administration of justice.
15. As regards the instant case, the Court finds that the Government have not submitted any convincing arguments which would require the Court to distinguish it from its established case-law.
16. The Court further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. Article 6 § 1
17. The period to be taken into consideration began on 28 June 1994, the day when the Convention entered into force with respect to Slovenia, and has not yet ended. The relevant period has therefore lasted over eleven years and eight months for three levels of jurisdiction.
18. 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).
19. Having examined all the material submitted to it, and 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.
2. Article 13
20. 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). It notes that the objections and arguments put forward by the Government have been rejected in earlier cases (see Lukenda, cited above) and sees no reason to reach a different conclusion in the present case.
21. 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. APPLICATION OF ARTICLE 41 OF THE CONVENTION
22. 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
23. The applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage.
24. The Government contested the claim.
25. The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 8,000 under that head.
B. Costs and expenses
26. The applicant also claimed approximately EUR 1,750 for the costs and expenses incurred before the Court.
27. The Government argued that the claim was too high.
28. According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. The Court also notes that the applicant’s lawyers, who also represented the applicant in Lukenda (cited above), lodged nearly 400 applications which, apart from the facts, are essentially the same as this one. Accordingly, in the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the applicant the sum of EUR 1,000 for the proceedings before the Court.
C. Default interest
29. The Court considers it appropriate that the default interest 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 Article 6 § 1 of the Convention;
3. Holds that there has been a violation of Article 13 of the Convention;
4. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 8,000 (eight thousand euros) in respect of non-pecuniary damage and EUR 1,000 (one thousand euros) in respect of costs and expenses, plus any tax that may be chargeable;
(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;
5. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 30 March 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Vincent BergerJohn Hedigan
RegistrarPresident
Full & Egal Universal Law Academy