FIFTH SECTION
DECISION
Application no. 47624/06
by Franc Emil ČOHA
against Slovenia
The European Court of Human Rights (Fifth Section), sitting on 22 November 2011 as a Committee composed of:
Ann Power-Forde, President,
Boštjan M. Zupančič,
Angelika Nußberger, judges,
and Stephen Phillips, Deputy Section Registrar,
Having regard to the above application lodged on 12 October 2006,
Having regard to the Government’s submissions and their request to strike the case out the Court’s list of cases on the basis of a unilateral declaration made with a view to resolving the issues raised by the application,
Having regard to the applicant’s response to the Government’s unilateral declaration and his further comments,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Franc Emil Čoha, is a Slovenian national who was born in 1941 and lives in Ajdovščina. The Slovenian Government (“the Government”) were represented by their Agent, Mrs T. Mihelič Žitko, State Attorney.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Main proceedings
On 29 March 1996 the applicant lodged a claim with the Ljubljana Labour and Social Court seeking child allowance.
On 29 October 1999 the court dismissed the applicant’s claim. The applicant appealed.
On 20 September 2001 the Ljubljana Higher Labour and Social Court upheld the applicant’s appeal and remitted the case for re-examination.
On 8 October 2002 the first-instance court dismissed the applicant’s claim. The applicant again appealed.
On 14 November 2003 the Ljubljana Higher Labour and Social Court rejected the applicant’s appeal.
Subsequently, the applicant lodged an appeal on points of law with the Supreme Court which was rejected on 23 November 2004.
On 14 February 2005 the applicant lodged a constitutional appeal.
The Constitutional Court dismissed it on 14 April 2006.
2. The proceedings under the 2006 Act
On 23 May 2007 the respondent Government were given notice of the present application.
On 10 September 2007 the State Attorney’s Office sent a settlement proposal to the applicant under section 25 of the Act on the Protection of the Right to a Trial without undue Delay (“the 2006 Act”). In its proposal, the State Attorney’s Office acknowledged that the right to a trial within a reasonable time has been violated and offered to pay monetary compensation in the amount of 540 euros (EUR) in respect of non‑pecuniary damage.
Subsequently, the applicant informed the State Attorney’s Office that he was not willing to accept the proposal as the sum offered was too low.
B. Relevant domestic law
Section 25 of The Act on the Protection of the Right to a Trial without Undue Delay (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Journal, No. 49/2006 – “the 2006 Act”) reads as follows:
“(1) In cases where a violation of the right to a trial without undue delay has already ceased and the party has made a claim for just satisfaction with the international court before the date of implementation of this Act, the State Attorney’s Office shall offer the party a settlement on the amount of just satisfaction within four months of the date of receipt of the case referred by the international court for the settlement procedure. The party shall submit a settlement proposal to the State Attorney’s Office within two months of the date of receipt of the proposal of the State Attorney’s Office. The State Attorney’s Office shall decide on the proposal as soon as possible and within a period of four months at the latest.....
(2) If the proposal for settlement referred to in paragraph 1 of this section is not acceded to or the State Attorney’s Office and the party fail to negotiate an agreement within four months of the date on which the party made its proposal, the party may lodge a claim [for just satisfaction] with the competent court under this Act. The party may lodge a claim within six months of receiving the State Attorney’s Office reply that the party’s proposal referred to in the previous paragraph was not acceded to, or after the expiry of the period fixed in the previous paragraph for the State Attorney’s Office to decide whether to proceed with settlement. Irrespective of the type or amount of the claim, the provisions of the Civil Procedure Act concerning small claims shall apply in proceedings before a court.”
THE LAWComplaint about the length of proceedings and the lack of domestic remedy in this respect
The applicant complained under Article 6 § 1 of the Convention about the length of the civil proceedings.
The relevant part of Article 6 § 1 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...”
In substance, the applicant also complained that the remedies available in Slovenia in length of proceedings cases were ineffective.
Article 13 of the Convention provides:
“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.”
Having been notified of the application, the respondent Government were also requested, under Rule 54 § 2 (a) of the Rules of Court, to confirm whether section 25 of the 2006 Act (see Relevant domestic law above) would be applied in the present case. In the event of an affirmative answer they were requested to submit a copy of the settlement proposal made to the applicant under the provision mentioned.
In their submissions, the Government informed the Court that section 25 of the 2006 Act was applied to the present application and enclosed a copy of the settlement proposal.
Since the applicant disagreed with the amount offered in monetary compensation, the Government submitted a unilateral declaration acknowledging a violation of the right to a trial within a reasonable time and argued that the applicant had been offered appropriate compensation. The Government further submitted that the settlement proposal included a detailed explanation referring to the relevant period and the levels of jurisdiction involved in the case. According to the Government, due account was taken of the Court’s case-law in fixing the amount offered. As a result, the Government, relying on Nardone v. Italy ((dec.), no. 34368/02, 25 November 2004), requested the Court to strike the application out of the list of cases in accordance with Article 37 § 1 (c) of the Convention.
In alternative, the Government argued that section 25 provided an accessible, sufficient and effective remedy, namely a compensation claim, before the domestic courts, which the applicant should have made use of in order to comply with Article 35 § 1 of the Convention.
The applicant disputed the Government’s arguments.
The Court firstly notes that the applicant complained about the length of proceedings which lasted ten years for four levels of jurisdiction. In this period the case was pending before the first-instance court about three years and seven months. The Court further notes that although the Government acknowledged that the length of the domestic proceedings in the applicant’s case had been excessive, the proposed sum in respect of non-pecuniary damage was considerably lower than the sum awarded for comparable delays in the Court’s case-law (see Bedi v. Slovenia, no. 24901/02, §§ 18‑20, 13 April 2006). Moreover, the Court notes that the proposed sum was also lower than the sum which could, according to the Court’s case-law, be regarded as reasonable, taking into account factors such as the fact that the settlement proposal was made in the context of domestic proceedings and that it was made promptly (see Carević v. Slovenia, cited above, § 42).
Therefore, since the Court is not at this stage persuaded that the applicant was offered adequate compensation in respect of non-pecuniary damage suffered by him as a result of the alleged violation of his right to a trial within a reasonable time, it does not find it appropriate to strike the application out under Article 37 § 1 (c) of the Convention on the basis of the Government’s unilateral declaration. The Court therefore rejects the Government’s request to that effect (see Carević v. Slovenia, cited above, § 43).
This conclusion does not, however, prevent the Court from examining the compliance of the application with Article 35 § 1 of the Convention. In this connection, the Court recalls its findings from previous cases where it said that, in cases as the present one, applicants had at their disposal a “claim for just satisfaction” in accordance with the relevant provisions of the 2006 Act, which constituted appropriate means of redressing a breach of the reasonable time requirement of Article 6 that had already occurred (see Pohlen v Slovenia (dec.), no. 28457/03, §§ 40-43, 3 June 2008, and Kešelj and 6 others v. Slovenia (dec.), nos. 20674/05, 20680/05, 28380/05, 28441/05, 38861/05, 39198/05 and 44915/05, 19 May 2009). The Court observes that the applicant, being dissatisfied with the State Attorney’s proposal, could have availed himself of the aforementioned remedy, but failed to do so. His complaint under Article 6 § 1 of the Convention is therefore inadmissible due to non-exhaustion of domestic remedies and must be rejected under Article 35 §§ 1 and 4 of the Convention.
As to the applicant’s complaint under Article 13, the Court has already found that the 2006 Act does afford the applicant effective remedy in respect of his complaint about the length of proceedings (see above). It follows that this complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.Other complaints
The applicant finally alleged a violation of Article 1 of the Convention in that his right to child allowance had not been secured by the State authorities. Having regard to all material in its possession, the Court considers that this part of the application does not disclose any appearance of a violation of the Convention. It follows that it is inadmissible under Article 35 § 3 (a) as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
Rejects the Government’s request to strike the application out of the list;
Declares the application inadmissible.
Stephen PhillipsAnn Power-Forde
Deputy RegistrarPresident
Full & Egal Universal Law Academy