THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 30649/03
by Goran JERKOVIČ
against Slovenia
The European Court of Human Rights (Third Section), sitting on 2 December 2008 as a Chamber composed of:
Josep Casadevall, President,
Corneliu Bîrsan,
Boštjan M. Zupančič,
Egbert Myjer,
Ineta Ziemele,
Luis López Guerra,
Ann Power, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 15 September 2003,
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 Goran Jerkovič, is a Slovenian national who was born in 1957 and lives in Maribor. He was represented before the Court by Mr J. Jerman, a lawyer practising in Maribor. 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.
1. Main proceedings
1. On 11 October 1993 the applicant instituted proceedings against I.P. in the Maribor Basic Court (Temeljno sodišče v Mariboru) seeking payment in the amount of 136.000 German marks (DEM) (approximately 68.000 euros (EUR)).
2. On 14 January 1994 the applicant lodged a request for an interim measure.
3. On 26 January 1994 the applicant lodged a claim against H.P. (the wife of I.P.) and the proceedings were joined.
4. On 28 June 1994 the Convention came into force with regard to Slovenia.
5. Between 11 November 1994 and 21 August 1996 the applicant lodged nine requests for a hearing to be set.
6. On 16 September 1996 the Maribor District Court (Okrožno sodišče v Mariboru) issued a first-instance judgment. The defendants appealed.
7. On 17 June 1997 the appeal court (Višje sodišče v Mariboru) issued a judgment, upholding one part of the first-instance judgment and remitting the remainder for re-examination (default interest and costs).
8. Subsequently, the defendants lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče).
9. On 21 April 1999 the Supreme Court rejected this appeal.
10. On 30 March 2000 the Maribor District Court issued a judgement regarding default interest and costs. The judgement became final on 18 May 2000.Execution proceedings
11. On 22 May 2000 the applicant instituted execution proceedings with the Maribor District Court against I.P. and H.P.
12. On 1 February 2001 the Maribor District Court issued a writ for execution.
13. Subsequently, the Maribor District Court appointed an expert and the applicant lodged several requests for determination of a date for the public auction.
14. The proceedings ended on 9 March 2004, when the amount due was paid and the decision terminating the proceedings was issued (ustavitev postopka).
3. The proceedings under the 2006 Act
15. On 23 May 2007 the respondent Government were given notice of the present application.
16. 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 810 euros (EUR) in respect of non-pecuniary damage.
17. 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
18. See domestic law in the Court’s decisions Carević v. Slovenia ((dec.), no. 17314/03, 3 June 2008)) and Pohlen v. Slovenia ((dec.), 28457/03, 3 June 2008).
COMPLAINTS
19. The applicant complained under Article 6 § 1 of the Convention of excessive length of the civil proceedings to which he was a party.
20. In substance, he also complained under Article 13 of the Convention that he did not have an effective domestic remedy in this regard.
THE LAW
21. The applicant complained under Article 6 § 1 of the Convention about the length of the civil proceedings.
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
22. 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.”
23. Having been notified of the application (see paragraph 13 above), 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 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.
A. The parties’ submissions
24. 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.
25. The Government submitted the 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.
26. Since the applicant disagreed with the amount offered in monetary compensation, the Government, relying on Van Houten v. the Netherlands ((striking out), no. 25149/03, ECHR 2005‑IX), requested the Court to strike the application out of the list of cases in accordance with Article 37 § 1 (c) of the Convention.
27. The Government submitted that the compensation offered to the applicant had been calculated on the basis of the criteria provided in section 4 of the 2006 Act and the Court’s case-law on the subject. 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.
28. Finally, 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.
29. The applicant disputed the Government’s arguments.
B. The Court’s assessment
1. Complaint about the length of proceedings
30. Firstly, it has to be noted that the circumstances of the present case are similar to those in the cases Carević v. Slovenia and Pohlen v. Slovenia (both cited above). In those cases the Government confirmed that Article 25 of the 2006 Act had been applied and acknowledged that the length of domestic proceedings in the applicants’ cases had been excessive. The Government sent settlement proposals to the applicants, who did not accept them. They also failed to lodge a civil claim with the domestic courts, namely a “just satisfaction claim”, relying on section 25, paragraph 2 of the 2006 Act.
31. In those cases the Court noted that 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 Prekoršek v. Slovenia, no. 75784/01, 6 April 2006). Since the Court was not persuaded that the applicants were offered adequate compensation in respect of non-pecuniary damage suffered as a result of the alleged violation of their right to a trial within a reasonable time (see Wawrzynowicz v. Poland, no. 73192/01, § 38), it did not find it appropriate to strike the application out under Article 37 § 1 (c) of the Convention, but decided to reject the applications on the grounds of non-exhaustion.
32. The Court considers that there is no reason to take a different approach in the present case and therefore finds that this part of the application is premature and must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
2. Complaint of lack of effective remedies
33. 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 Grzinčič v. Slovenia, no. 26867/02, 3 May 2007). That finding is also valid in the context of his complaint under Article 13 of the Convention.
34. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 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.
Santiago QuesadaJosep Casadevall
RegistrarPresident
Full & Egal Universal Law Academy