FIFTH SECTION
DECISION
Application no. 16349/06
IMP D.D.
against Slovenia
The European Court of Human Rights (Fifth Section), sitting on 2 October 2012 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 20 March 2006,
Having regard to the comments submitted by parties,
Having deliberated, decides as follows:
THE FACTS
The applicant IMP D.D., is a company registered in Slovenia. It is represented before the Court by Mr J. Tekavc, a lawyer practising in Ljubljana.
The Slovenian Government (“the Government”) are represented by their Agent.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. First set of proceedings
On 7 February 1992 the applicant IMP d.d. (“the applicant company”) instituted proceedings against the company Pomurje Murska Sobota d.d.
On 28 April 1992 the defendant company replied to the claim and lodged a counterclaim.
On 2 April 1993 the Murska Sobota District Court held the first hearing. The court issued a decision on suspension of proceedings due to bankruptcy proceedings instituted against the defendant company. The proceedings continued against the defendant’s legal successor the company Pom-grad Murska Sobota.
On 28 June 1994 the Convention came into force in respect of Slovenia.
Between 13 April 1995 and 21 March 1996 three hearings were held and the first-instance court decided that the counterclaim should be decided in a separate set of proceedings. In addition, a financial expert was appointed.
Between 3 June 1997 and 13 May 2003 four hearings were held.
On 11 September 2003 the first-instance court rendered a judgment upholding the applicant company’s claim in part. Both parties appealed.
On 13 September 2004 the Maribor Higher Court rendered a judgment rejecting both appeals. The defendant company lodged an appeal on points of law.
On 10 January 2005 the State Prosecutor’s Office lodged a request for protection of legality.
On 11 October 2005 the Supreme Court rejected the request for protection of legality.
On 13 December 2005 the Supreme Court rejected the appeal on points of law on procedural grounds. The decision was served on the applicant company on 3 January 2006.
2. Second set of proceedings
Following the decision in the first set of proceedings issued on 21 March 1996 (see above) the proceedings concerning the counterclaim were given a new case number and continued before the Murska Sobota District Court.
Between 3 June 1997 and 9 September 2003 the court held two hearings.
On 22 December 2003 the first-instance court rendered a judgment. The applicant company appealed.
On 2 June 2005 the Maribor Higher Court upheld the appeal in part and amended the remainder of the judgment. The applicant company lodged a request for a corrigendum of the second-instance judgment.
On 30 August 2005 the Maribor Higher Court corrected the judgment.
On 6 September 2005 the applicant company requested an additional corrigendum of the judgment and the explanation of the corrections.
On 26 September 2005 the applicant company lodged a request for the annulment of the certificate of finality of the decision.
On 27 September 2005 the applicant company lodged an appeal on points of law.
On 18 October 2005 the first-instance court rejected the applicant company’s request for annulment of the certificate. The applicant company appealed.
On 8 December 2005 the Maribor Higher Court upheld the request and amended the first-instance judgment. On the same day the court also upheld the applicant company’s appeal against the decision for annulment and remitted this issue for re-examination.
On 21 December 2005 the first-instance court once again rejected the applicant company’s request for annulment.
Following an appeal, the second-instance court on 9 February 2006 upheld the first-instance decision rejecting the annulment.
On 28 August 2007 the Supreme Court rejected the appeal on points of law on procedural grounds as the claim was below the statutory threshold. The decision was served on the applicant company on 12 September 2007.
B. Relevant domestic law
A description of the relevant domestic law can be found in the Kešelj and 6 Others v. Slovenia decision (nos. 20674/05, 20680/05, 28380/05, 28441/05, 38861/05, 39198/05 and 44915/05, 19 May 2009).
COMPLAINTS
The applicant company complained under Articles 6 § 1 and 13 of the Convention about the excessive length of proceedings and about the lack of an effective domestic remedy in that regard. Moreover, the applicant company requested, in addition to non-pecuniary damage, also compensation for the pecuniary damage.
THE LAW
Following the notification of the application, the respondent Government informed the Court that section 25 of the Act on the Protection of the Right to a Trial without Undue Delay (“the 2006 Act”) had been applied to the present application. A copy of a settlement proposal was enclosed, whereby the Government acknowledged a violation of the right to the right to a trial within a reasonable time and offered redress for non-pecuniary damage in the amount of EUR 5 000, which is the highest possible amount under the 2006 Act, for both sets of proceedings. The applicant company did not accept the proposal, since it considered the amount offered to be too low but mostly since it did not include compensation for pecuniary damage allegedly sustained due to the lengthy proceedings.
As regards the settlement proposal 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 company, being dissatisfied with the State Attorney’s proposal, could have availed itself of the aforementioned remedy and sought compensation for each of the proceedings separately. The applicant company however failed to do so. The 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 company’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 Pohlen v. Slovenia cited 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.
With regard to the applicant company’s request for pecuniary damage the Government contested the claim arguing that the 2006 Act provides for a remedy to be used in respect of claims for pecuniary damage sustained as a result of the undue length of proceedings. According to section 21 of the 2006 Act, the Government went on to argue, an action may be brought within eighteen months of the final ruling in the domestic proceedings in accordance with the provisions of the Obligations Code. Thus, according to the Government, there were no obstacles for the applicant company to avail itself of this remedy and the request regarding pecuniary damage should be rejected for non-exhaustion of domestic remedies.
The Court notes that since neither the deadline imposed in section 21 of the 2006 Act did not preclude the applicant company from availing itself of the above mentioned remedy nor there are other special conditions that would impair it to do so, the Court sees no reason not to consider this remedy to be effective in the absence of any valid arguments against presented by the applicant company to the contrary. This part of the application is therefore inadmissible for non-exhaustion of domestic remedies and must be rejected under Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Stephen PhillipsAnn Power-Forde
Deputy RegistrarPresident
Full & Egal Universal Law Academy