THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 29978/06
by Vinko JAMA
against Slovenia
The European Court of Human Rights (Third Section), sitting on 11 December 2007 as a Chamber composed of:
MrC. Bîrsan, President,
MrB.M. Zupančič,
MrsE. Fura-Sandström,
MrsA. Gyulumyan,
MrE. Myjer,
MrDavid Thór Björgvinsson,
MrsI. Berro-Lefèvre, judges,
and Mr S. Quesada, Section Registrar,
Having regard to the above application lodged on 7 June 2006,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Vinko Jama, is a Slovenian national who was born in 1914 and lives in Ljubljana. He was represented before the Court by Mr Z. Korenčan, a lawyer practising in Ljubljana.
The Slovenian Government (“the Government”) were represented by their Agent, Mr Lucijan Bembič, State Attorney-General.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1971, after the applicant’s house had been expropriated, the Ljubljana Municipality instituted non-contentious civil proceedings for determination of compensation to be awarded to the applicant in this respect.
On 24 November 1978 the Ljubljana Municipal Court (Občinsko sodišče v Ljubljani) issued a decision concerning the compensation.
Until 28 June 1994, when the Convention entered into force with respect to Slovenia, the case had been four times remitted to the first-instance court for re-examination.
On 1 February 1995 the applicant’s representative informed the renamed Ljubljana Local Court (Okrajno sodišče v Ljubljani) that several related sets of proceedings had been instituted in the meantime. Since their outcome constituted a preliminary question (predhodno vprašanje) which was relevant for the determination of the compensation, the court, on 28 April 1995, stayed the proceedings (prekinitev postopka).
Between 13 September 1995 and 31 November 2000 the court made several inquires on the progress of the case.
The hearing held on 5 April 2004 was adjourned until 13 May 2004 at the applicant’s request.
On 31 May and 1 June 2004 the applicant lodged written submissions.
In the course of the proceedings, until 23 December 2005, the case was reassigned to four different judges.
Three hearings were held between 30 March and 8 June 2006.
The hearing held on 21 September 2006 was adjourned sine die due to the applicant’s attempt to reach a settlement with the municipality.
The settlement has apparently not been reached and the proceedings are still pending before the Ljubljana Local Court.
B. Relevant domestic law
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) became operational on 1 January 2007. Under its sections 1 and 2, the right to a trial within a reasonable time is guaranteed for a party to court proceedings, a participant under the Act governing non-contentious proceedings and an injured party in criminal proceedings.
Section 3 of the 2006 Act provides for two remedies to expedite pending proceedings – a supervisory appeal (nadzorstvena pritožba) and a motion for a deadline (rokovni predlog) – and, ultimately, for a claim for just satisfaction in respect of damage sustained because of the undue delay (zahteva za pravično zadoščenje).
For a more detailed presentation of the relevant domestic law see Žunič v. Slovenia, (dec.) no. 24342/04, §§ 16-26, 18 October 2007.
THE LAW
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...”
In substance, the applicant further complained about the lack of an effective domestic remedy in respect of the excessive length of the proceedings.
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.”
The applicant’s first complaint relates to the length of the proceedings, which are still pending before the first-instance court.
The Government argued that the application should be declared inadmissible since the applicant failed to avail himself of the effective remedies at his disposal for the purpose of expediting the judicial proceedings and/or claiming compensation, in particular after the implementation of the 2006 Act from 1 January 2007.
The applicant contested the Government’s objection.
The Court reiterates that under Article 35 § 1 of the Convention it may only deal with a matter after all domestic remedies have been exhausted.
The Court points out that the purpose of the rule of exhaustion of domestic remedies referred to in Article 35 § 1 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions. Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system. That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see among many authorities Selmouni v. France [GC], no. 25803/94, ECHR 1999-V, § 74; Andrášik and Others v. Slovakia (dec.), nos. 57984/00 et al., ECHR 2002-IX).
The Court observes that according to the 2006 Act, in proceedings pending at first or second instance, it is open to persons such as the applicant to seek their acceleration by means of a supervisory appeal and a motion for a deadline. The latter constitutes, in substance, an appeal against a decision on a supervisory appeal under certain conditions. Moreover, the applicants may ultimately obtain further redress through a compensatory remedy, namely by bringing a claim for just satisfaction (see Korenjak v. Slovenia, (dec.) no. 463/03, § 44, 15 May 2007).
The Court notes that it has already examined the aggregate of remedies provided by the 2006 Act for the purposes of Article 35 § 1 of the Convention. It was satisfied that they were effective also in cases of excessively long proceedings pending at first or second instance, lodged before 1 January 2007, in the sense that these remedies were in principle capable of both preventing the continuation of the alleged violation of the right to a hearing without undue delay and of providing adequate redress for any violation that has already occurred (see Grzinčič v. Slovenia, no. 26867/02, § 98, 3 May 2007, and Korenjak, cited above, § 62).
In the present case, the Court observes that the proceedings, currently pending at first instance, have lasted, within the Court’s jurisdiction ratione temporis, more than thirteen years. Furthermore, in view of the applicant’s age, the proceedings are of undeniable importance for him. However, bearing in mind the subsidiary character of the Convention, the Court notes that the applicant has failed to avail himself of a supervisory appeal which has been at his immediate disposal since the implementation of the 2006 Act. The Court further notes that if the applicant had availed himself of a supervisory appeal, he would either have had the proceedings accelerated or would have been able to lodge a motion for a deadline and, ultimately, a claim for just satisfaction (see mutatis mutandis Kamenik v. Slovenia, (dec.) no. 6819/02, 13 September 2007, and Žunič, cited above, §§ 43-55 ).
Therefore, it follows that the applicant’s complaint concerning the length of the proceedings must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
As to the applicant’s complaint under Article 13 that the remedies at his disposal for excessively lengthy proceedings were ineffective, the Court has already found that the 2006 Act does afford the applicant effective remedies in respect of the complaint about the length of the proceedings pending at first or second instance (see above). That finding is also valid in the context of his complaint under Article 13 of the Convention.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention and to reject the application.
For these reasons, the Court unanimously
Declares the application inadmissible.
Santiago QuesadaCorneliu Bîrsan
RegistrarPresident
Full & Egal Universal Law Academy