THIRD SECTION
DECISION
Application no. 42121/04
by GLAS-METAL TRUST REG.
against Slovenia
The European Court of Human Rights (Third Section), sitting on 6 January 2009 as a Chamber composed of:
Josep Casadevall, President,
Elisabet Fura-Sandström,
Boštjan M. Zupančič,
Alvina Gyulumyan,
Ineta Ziemele,
Luis López Guerra,
Ann Power, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 15 November 2004,
Having regard to the Government's submissions and the friendly settlement reached in respect of the length of the proceedings,
Having regard to the applicant's response to the Government's submissions,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Glas-Metal Trust Reg., is a company based in Liechtenstein. It is represented before the Court by Mr D. Puh, a lawyer practising in Portorož. The respondent Government (“the Government”) were represented by their Agent, Mr L. Bembič, State-Attorney General.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Main proceedings
3. Further to a confiscation of their goods by the Customs' Office of the Koper Harbour (Luka Koper), on 7 October 1974 the applicant company instituted civil proceedings with the Koper Basic Court (Temeljno sodišče v Kopru) against the Socialist Federal Republic of Yugoslavia (“SFRY”) seeking compensation for confiscated goods and for loss of profit.
4. After 25 June 1991, when the Republic of Slovenia became independent, the applicant company directed its claim also against the Republic of Slovenia.
Until 28 June 1994 when the Convention entered into force for Slovenia, ordinary courts handed down five first-instance and five second-instance decisions. In addition, the Supreme Court decided four times in the proceedings.
According to the applicant, at that time, its claims amounted to payment of default interest in respect of 776,661 Swiss francs (CHF) awarded in 1992 and of 1,431,000 Italian lire (ITL) awarded in 1983. It also claimed compensation for the loss of profit.
5. On 20 September 1996 the Koper District Court (Okrožno sodišče v Kopru – new appellation after the reform in 1995) delivered a written judgment, rejecting the applicant's outstanding claims. The applicant appealed to the Koper Higher Court (Višje sodišče v Kopru).
On 12 March 1998 the Koper Higher Court allowed the applicant's appeal and remitted the case to the first-instance court for re-examination.
On 11 October 1999 the applicant company stated that the remaining claims were of an ancillary nature since the principal had already been awarded.
On 4 September 2000 the Koper District Court delivered a judgment, rejecting the applicant's claims.
On 27 June 2001 the Koper Higher Court upheld the first-instance judgment.
6. The applicant subsequently lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče).
On 7 March 2002 the latter dismissed his appeal.
7. On 27 May 2002 the applicant lodged a constitutional appeal.
On 11 May 2004 the Constitutional Court (Ustavno sodišče) dismissed the applicant's constitutional appeal stating that the applicant's complaints were partly of a fourth-instance nature and that it could not examine the allegations concerning the former SFRY judicial system. On 18 May 2004 the decision was served on the applicant's representative.
2. Proceedings under the 2006 Act
8. On 18 September 2007 the respondent Government were given notice of the present application.
9. On 14 January 2008 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 noted that the applicant was complaining inter alia about the violation of the right to a trial within a reasonable time under Article 6 of the Convention and the lack of efficient remedies in this regard under Article 13 of the Convention. The State Attorney's Office took into account the fact that the applicant had not stated a claim as to the amount of just satisfaction sought in his application to the Court and offered the applicant a friendly settlement with a written statement acknowledging a violation in accordance with sections 15 and 17 of the 2006 Act. They also offered the reimbursement of costs in the amount of 247,86 euros (EUR).
10. On 12 March 2008 the applicant company accepted the State Attorney Office's offer for a friendly settlement concerning the violations of Article 6 and 13 of the Convention, while maintaining other complaints and a request for pecuniary damages in the proceedings before the Court.
11. On 21 April 2008 the applicant informed the Court that they had signed friendly settlement on that day. They State Attorney's Office had acknowledged a violation of the applicant's right to a speedy trial because the proceedings had lasted app. 30 years, of which 9 years and 11 months after 28 June 1994, when the Convention entered into force for Slovenia, and this before 6 instances. The applicant stated that they wished to withdraw the application concerning Articles 6 and 13 of the Convention and their request for non-pecuniary damages in that respect.
B. Relevant domestic law
12. The Slovenian Government adopted on 12 December 2005 a Joint State Project on the Elimination of Court Backlogs, the “Lukenda Project”. Its goal is the elimination of backlogs in Slovenian courts and prosecutor's offices by the end of 2010, by providing for structural and managerial reform of the judiciary. As a part of the “Lukenda Project” the Parliament adopted the 2006 Act (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Journal, No. 49/2006) which has been implemented since 1 January 2007.
13. Section 25 of the 2006 Act lays down the following transitional rules in relation to the applications already pending before the Court:
Section 25 - Just satisfaction for damage sustained prior to implementation of this Act
“(1) In cases where an infringement of the right to a trial without undue delay has already ceased and the party has filed 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 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 filed its proposal, the party may bring an action before the competent court under this Act. The party may bring an action 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 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.”
14. The relevant provisions concerning just satisfaction provide as follows:
Section 15 - Just satisfaction
“....
(2) Just satisfaction shall be provided by:
i. payment of monetary compensation for damage caused by an infringement of the right to a trial without undue delay;
ii. a written statement from the State Attorney's Office that the party's right to a trial without undue delay has been infringed;
iii. the publication of a judgment that the party's right to a trial without undue delay has been infringed.”
Section 16 - Monetary compensation
“(1) Monetary compensation shall be payable for non-pecuniary damage caused by an infringement of the right to a trial without undue delay. Strict liability for any damage caused shall lie with the Republic of Slovenia.
(2) Monetary compensation for individual finally decided cases shall be granted in amounts from 300 to 5,000 euros.”
Section 17 – Written statement
“(1) Given the circumstances of the case, the State Attorney's Office may, by agreement with the party under Article 19 of this Act and taking account of criteria referred to in Article 18, paragraph 1 of this Act, make a written statement without monetary compensation to the party as a compensation for non-pecuniary damage caused by the violation of the right to a trial without undue delay. If the right to a trial without undue delay has been seriously violated and at the request of the party, the State Attorney's Office may in addition to the monetary compensation also make a written statement.
(2) The written statement shall include data referred to in the Article 5, paragraph 2, subparagraphs 1, 2, 3 and 4 of this Act, an indication that a violation of the right to a trial without undue delay has occurred and the length of the undue delay.
(3) A written statement shall be made by the State Attorney's Office within the concluded settlement referred to in Article 19 of the present Act. At the party's request, the written statement shall be published on the website of the State Attorney's Office which shall cover the costs thereof. The written statement shall be made public for two months and thereupon archived within the website or deleted within fifteen days of receipt of a request from the party or the majority of parties concerning the written statement.”
COMPLAINTS
15. The applicant company complained under Article 6 of the Convention about the excessive length of the proceedings which lasted 30 years. Moreover, they maintained that the remedies available for excessive legal proceedings in Slovenia were ineffective (Article 13 of the Convention).
16. The applicant company further complained under Article 6 of the Convention that the former SFRY judiciary as a part of the totalitarian system was linked with the executive branch and with the Communist Party and that a number of judges from the former regime remained in post in the independent Slovenia. The judiciary was therefore partial. In particular, they complained that the lower courts wrongly established the elements of facts and the content of the claims, and that adequate judicial protection was not afforded to the applicant in the proceedings before the Supreme and the Constitutional Courts. As a consequence, the applicant complained about the violation of Article 1 of Protocol No. 1 since the domestic courts did not award to the applicant company compensation for the loss of profit and default interest in the amounts sought by it.
THE LAW
1. Complaint about the length of the proceedings under Articles 6 and 13 of the Convention
17. On 18 September 2007 the respondent Government were given notice of the application. In addition they were requested, under Rule 54 § 2 (a) of the Rules of Court, to confirm whether section 25 of the 2006 Act would be applied in this 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 above-mentioned provision.
18. In reply, the Government informed the Court that section 25 of the 2006 Act had been applied to the present application and sent a copy of the settlement proposal made to the applicant (see paragraph 9 above). The Government noted that the applicant was complaining inter alia of a violation of Articles 6 and 13 of the Convention in respect of the length of the proceedings. Since the applicant was not seeking compensation for non-pecuniary damages, they offered a written statement and the reimbursement of costs in the amount of 247,86 EUR.
19. On 12 March 2008 the applicant's representative informed the Court that they had accepted the respondent Government's proposal in respect of the violation of Article 6 (length) and Article 13 of the Convention. On 21 April 2008 the applicant company informed the Court that they were withdrawing their application concerning Articles 6 and 13 of the Convention, including their request for award of non-pecuniary damages in that respect (see paragraphs 10 and 11 above).
20. As to the partial withdrawal of the applications, the Court refers to Article 37 of the Convention, the relevant part of which provides:
“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
...
(b) the matter has been resolved;
...
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”
21. The Court takes note that, following the settlement reached between the parties, the matter has been resolved at the domestic level with regard to the violation of Articles 6 and 13 of the Convention (Article 37 § 1 (b) of the Convention).
22. The Court is satisfied that respect for human rights as defined in the Convention or its Protocols does not require the examination of that part of the application to be continued (Article 37 § 1 in fine of the Convention) (see Potočnik and others v. Slovenia (dec.), no. 3045/03 et al., 14 October 2008).
2. Remaining complaints
23. The applicant company further complained about the alleged unfairness of the proceedings under Article 6 of the Convention and the alleged violation of the applicant's right to property under Article 1 of Protocol no. 1 to the Convention (see paragraph 16 above).
24. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, 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 as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (b) of the Convention in so far as it concerns the complaint about the length of proceedings under Article 6 and lack of efficient remedies in this regard under Article 13 of the Convention.
Declares inadmissible the remainder of the application.
Santiago QuesadaJosep Casadevall
RegistrarPresident
Full & Egal Universal Law Academy