THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 28457/03
by Saverij POHLEN
against Slovenia
The European Court of Human Rights (Third Section), sitting on 3 June 2008 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, Setion Registrar,
Having regard to the above application lodged on 14 August 2003,
Having regard to the Government’s submissions and their request to strike the case out of its list of cases and the text of 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
1. The applicant, Mr Saverij Pohlen, is a Slovenian national who was born in 1936 and lives in Pobegi. The respondent Government (“the Government”) were represented by their Agent, Mr Lucijan 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. On 27 January 1997 the applicant instituted civil proceedings against the Company for Public Roads (Družba za državne caste) and Koper Municipality in the Koper Local Court (Okrajno sodišče v Kopru) seeking restoration of a wall on his property which had allegedly been damaged during road building works.
4. On 2 February 2001 the applicant urged the court to proceed with his case.
5. On 12 November 2001 and 22 January 2003 the applicant made written submissions.
6. Hearings were held on 23 January 2003, 27 February 2003 and 9 October 2003.
7. During the proceedings the court obtained an expert opinion.
8. On 9 October 2003 the court adopted a judgment rejecting the applicant’s claim, which was served on the applicant on 18 November 2003.
9. On 26 November 2003 the applicant appealed to the Koper Higher Court (Višje sodišče v Kopru).
10. On 19 April 2005 the court dismissed the applicant’s appeal.
11. It would appear that this judgment was served on the applicant on 10 June 2005.
2. The proceedings under the 2006 Act
12. On 29 May 2007 the respondent Government were given notice of the present application.
13. On 23 August 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 the violation of the right to a trial within a reasonable time and, taking 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, offered the applicant a written statement in accordance with section 17 of the 2006 Act. He was requested to reply or state his counter-proposal.
14. On 11 September 2007 the applicant informed the State Attorney’s Office that he disagreed with the proposal and that he wanted this Court to rule on the matter.
15. On 27 December 2007 the State Attorney’s Office sent a new letter to the applicant, explaining its proposal and proposing the applicant to specify the amount of compensation claimed in respect of non-pecuniary damage. The State Attorney’s Office assured the applicant it would immediately examine his claim and respond to it. He was requested to reply in one month.
16. The applicant did not reply to the State Attorney’s Office’s proposal, but instead, on 10 February 2008, he informed the Registry of the Court that he insisted that the case be decided by the Court. The applicant also explained that he had not responded to the State Attorney’s Office’s letter of 27 December 2007 because it was in substance the same as the initial one.
B. Relevant domestic law
17. 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 prosecutors’ 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.
18. Section 25 of the 2006 Act lays down the following transitional rules in relation to 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.”
19. The following parts of the 2006 Act are relevant as regards the “claim for just satisfaction” and other means aimed at providing redress:
Section 4 - Criteria for decision-making
“When deciding on the legal remedies under this Act, the circumstances of the particular case shall be taken into account, namely: its complexity in terms of facts and law; actions of the parties to the proceedings, in particular as regards the use of procedural rights and fulfilment of obligations in the proceedings; compliance with rules on the set order for resolving cases, or with statutory deadlines for fixing preliminary hearings or for giving court decisions; the manner in which the case was heard before a supervisory appeal or a motion for a deadline was lodged; the nature and type of case and its importance for a party.”
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.
Section 20 - Proceedings in a court
“...
(3) Territorial jurisdiction for decision-making on an action for damages under this Act shall lie with the local court in whose district the plaintiff is a permanent or temporary resident or has registered office.
...
(6) 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.
(7) Appeal on points of law shall be excluded for disputes on damage under this Act.”
Section 22 – Payment of monetary compensation
“...
(2) The State Attorney’s Office shall pay monetary compensation and the party’s costs of the proceedings on the basis of a final court decision which has established an infringement of the right to a trial without undue delay in the proceedings, under section 20 or section 21 of the present Act.”
...”
Section 23 - Provision of funds
“Funds ... shall be earmarked in the Budget of the Republic of Slovenia within the framework of the financial plan of the State Attorney’s Office.”
COMPLAINTS
20. The applicant complained under Article 6 § 1 of the Convention of excessive length of the civil proceedings to which he was a party. In substance, he also complained under Article 13 of the Convention that he did not have an effective domestic remedy in this regard.
21. Moreover, the applicant complained about fairness of the proceedings at issue, in particular that evidence submitted by him had been disregarded, and that the outcome of the proceedings constituted an interference with his right enshrined in Article 1 of Protocol No. 1 to the Convention.
THE LAW
1. Complaint about the length of the proceedings
22. On 29 May 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 provision mentioned.
23. In reply, the Government informed the Court that section 25 of the 2006 Act had been applied to the present application. They further submitted a unilateral declaration acknowledging a violation of the right to a trial within a reasonable time, which could be found in the settlement proposal mentioned, made under section 25 of the 2006 Act, and argued that the applicant had been offered appropriate just satisfaction.
24. Since the applicant disagreed with the State Attorney’s Office’s proposal, 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 in accordance with Article 37 § 1 (c) of the Convention.
25. Moreover, the Government argued that section 25 provided an accessible, sufficient and effective remedy which the applicants should have made use of in order to comply with Article 35 § 1 of the Convention.
26. The applicant disagreed with the Government and requested the Court to decide on the merits of his case.
27. The Court observes at the outset that new legislation, namely the 2006 Act, has been introduced in Slovenia with the intention of guaranteeing the right to a trial within a reasonable time at domestic level. It became operational on 1 January 2007.
28. The Court further notes that the applicants are entitled to rely on the transitional provision of the 2006 Act, namely section 25, which concerns cases where the violation of the “reasonable time” requirement has already ceased to exist and which were lodged with the Court before 1 January 2007.
29. Pursuant to that provision the State Attorney’s Office shall offer an applicant a settlement proposal in respect of just satisfaction within four months of communication of the application to the Government. Within two months of receipt of the State Attorney’s Office’s proposal, the applicant shall submit his or her proposal in reply. The State Attorney’s Office has then four months to state its position regarding the settlement.
30. In any event, if the applicant’s proposal for settlement is not acceded to or the State Attorney’s Office and the applicant fail to negotiate an agreement within four months of the date on which the applicant filed his or her proposal, the applicant may bring a civil claim, namely a “claim for just satisfaction”, before the competent court as provided by the 2006 Act. The claim must be lodged within six months of the State Attorney’s Office’s refusal to accept the applicant’s proposal or of the expiry of the period within which the State Attorney’s Office should decide on the settlement.
31. As regards the present case, the Court notes that the applicant received the above-mentioned settlement proposal and takes note of the Government’s request to strike the application out of the list of cases on the basis of the unilateral declaration which can be found therein.
32. The Court observes that a distinction must be drawn between, on the one hand, declarations made in the context of strictly confidential friendly-settlement proceedings and, on the other, unilateral declarations – such as the present declarations – made by a respondent Government in public and adversarial proceedings before the Court (see, among many others, Agibalova and Others v. Russia, no. 26724/03, § 20, 13 April 2006).
33. The Court notes that under certain circumstances it may strike out an application under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued. To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law (Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; Meriakri v. Moldova (striking out), no. 53487/99, 1 March 2005; Swedish Transport Workers Union v. Sweden (striking out), no. 53507/99, 18 July 2006; and Van Houten, cited above).
34. The Court notes that it has specified in a number of cases the nature and extent of the obligations which arise for the respondent State under Article 6 of the Convention as regards the guarantees of the right to a trial within a reasonable time and the requirement of an effective remedy capable of providing appropriate redress for the damage resulting from the breach of this right (see Cocchiarella v. Italy [GC], no. 64886/01, §§ 86-98, 29 March 2006). In this connection the Court reiterates that there is a strong but rebuttable presumption that excessively long proceedings will occasion non-pecuniary damage (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 204, 29 March 2006) and that the characteristics of sufficient redress relates also to the amount awarded in respect of such damages (see Scordino, cited above, § 202).
35. As to whether it would be appropriate to strike out the present application on the basis of the unilateral declaration made by the Government, the Court notes that the length of the proceedings in the present case amounted to more than eight years for only two levels of jurisdiction. While the Government acknowledged that the length of the domestic proceedings in the applicant’s case had been excessive, it did not offer the applicant compensation for non-pecuniary damage, but instead offered to make a written statement under section 17 of the 2006 Act. In these circumstances and although the offer was affected by the fact that applicant failed to specify the compensation claim, which, however, does not appear to be a requirement set out in the 2006 Act, the Court does not find it appropriate to strike out the present application under Article 37 § 1 (c) of the Convention on the basis of the unilateral declaration (see Wawrzynowicz v. Poland, no. 73192/01, § 38). Accordingly, it rejects the Government’s request to that effect (see Tahsin Acar, cited above, §§ 85 and 86).
36. 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 notes that the Government argued that the applicant had at his disposal a newly established compensatory judicial remedy, which he should have made use of.
37. In this connection the Court reiterates that the purpose of the exhaustion rule is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it (see, among many other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). 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 (ibid.).
38. The Court further reiterates that the only remedies which Article 35 § 1 of the Convention requires to be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient (see Selmouni, cited above, § 75).
39. As to the context of length of proceedings, the Court reiterates that according to its established case-law Article 13 offers an alternative: a remedy is “effective” if it can be used either to expedite a decision by the courts dealing with the case, or to provide the litigant with adequate redress for delays that have already occurred (see Kudła v. Poland [GC], no. 30210/96, § 159, ECHR 2000‑XI). The same is necessarily true of the concept of “effective” remedy within the meaning of Article 35 § 1 (see Mifsud v. France (dec.) [GC], no. 57220/00, ECHR 2002-VIII).
40. As to the present complaint, the Court observes that section 25, paragraph 2, offers applicants who are dissatisfied with the settlement proposals the opportunity to lodge a civil claim, namely a “just satisfaction claim”, with the competent domestic court within the prescribed time-limit. The Court further notes that such a claim is subject to relevant provisions of the 2006 Act and has been found in Korenjak v Slovenia ((dec.), no. 463/03, 15 May 2007) to constitute appropriate means of redressing a violation that has already occurred (ibid., § 60).
41. The Court reiterates that it has found in the above-mentioned decision that applicants should exhaust remedies under the 2006 Act notwithstanding the fact that their applications had been lodged with the Court prior to the enactment of the legislation in question. In addition, it is clear that the 2006 Act was specifically designed to address the issue of the excessive length of proceedings before domestic courts and there is no reason to doubt its effectiveness at this stage (see Korenjak, cited above, §§ 70 and 73).
42. As regards the applicant’s particular circumstances, the Court notes that the applicant received a settlement proposal from the State Attorney’s Office. Given the fact that no settlement was reached, the applicant has been consequently able to lodge a “just satisfaction claim” in respect of non-pecuniary damage suffered due to the length of the proceedings in accordance with the relevant provisions of the 2006 Act.
43. In view of the foregoing considerations and given that the applicant has had an opportunity to seek redress for the length of the proceedings before the domestic court, the Court finds that he has been required by Article 35 § 1 of the Convention to use this remedy available to him under the 2006 Act.
44. It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
2. Complaint of lack of an effective remedy
45. The Court has already found that the 2006 Act does afford the applicant an effective remedy in respect of his complaint about the length of the proceedings (see paragraphs 36-44 above). That finding is also valid in the context of his complaint under Article 13 of the Convention.
46. Hence, it follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
3. Remaining complaints
47. As to the complaints concerning the alleged unfairness of the proceedings and alleged violation of the right to property, the Court notes that the applicant was able to raise these allegations in an appeal on points of law before the Supreme Court, or, if no such appeal laid against in his case, in a constitutional appeal. The applicant did not avail himself of either of these remedies (see, mutatis mutandis, Šubinski v. Slovenia, no. 19611/04, §§ 87-89, 18 January 2007).
48. It follows that the applicant failed to exhaust domestic remedies and that these complaints must be rejected in accordance with Article 35 §§ 1 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