THIRD SECTION
DECISION
Applications nos. 3045/03, 7894/03, 9696/03, 13566/04, 14698/04
by Anton POTOČNIK and 4 others
against Slovenia
The European Court of Human Rights (Third Section), sitting on 14 October 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 applications,
Having regard to the formal declarations accepting a friendly settlement of the cases;
Having regard to the comments submitted by the applicants and the respondent Government,
Having deliberated, decides as follows:
THE FACTS
1. The applicants are Slovenian nationals who live in Slovenia. The applicant Lebar was represented by Mr Bajželj, a lawyer practising in Radovljica, whereas the other applicants were not represented.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
1. The main proceedings
3. The applicants were parties to proceedings which terminated before 1 January 2007. The relevant length of each of the proceedings is indicated in the attached table.
2. The proceedings under the 2006 Act
4. On 20 February 2007 and 13 September 2007 the respondent Government were given notice of the present applications.
5. On the dates indicated in the attached table the applicants and the State Attorney's Office reached friendly settlements under section 25 of the Act on the Protection of the Right to a Trial without undue Delay (“the 2006 Act”).
6. The State Attorney's Office acknowledged the violation of the right to a trial within a reasonable time and the lack of efficient remedies under Articles 6 and 13 of the Convention. The applicants were awarded monetary compensation in respect of non-pecuniary damage and reimbursement of costs and expenses connected with the case, where claimed (see the attached table). All the applicants have since received the relevant compensation in respect of non-pecuniary damage.
7. Subsequently each of the applicants informed the Court on the date indicated in the attached table that he wished to withdraw part of his application while maintaining the requests for compensation in respect of pecuniary damage.
B. Relevant domestic law
8. On 12 December 2005 the Slovenian Government adopted 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” Parliament enacted the 2006 Act (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Journal, No. 49/2006) which became operational on 1 January 2007.
9. Section 25 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 a violation of the right to a trial without undue delay has already ceased and the party had 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 a period of four months at the latest.....
(2) If the proposal for settlement referred to in paragraph 1 of this section is not acceded to or if 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 a reply from the State Attorney's Office reply to the effect that the party's proposal referred to in the previous paragraph was not acceded to, or on 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.”
10. The following provisions of the 2006 Act are also relevant:
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; the actions of the parties to the proceedings, in particular as regards the use of procedural rights and fulfillment 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 an application for a deadline was lodged; the nature and type of case and its importance for a party.”
Section 16 - Monetary compensation
“(1) Monetary compensation shall be payable for non-pecuniary damage caused by a violation 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 in respect of individual decided cases in which a final decision has been taken shall be awarded in an amount of between 300 and 5,000 euros.
(3) When deciding on the amount of compensation, the criteria referred to in section 4 of this Act shall be taken into account, in particular the complexity of the case, actions of the State, the actions of the party and the importance of the case for the party.”
Section 21 - Action in respect of pecuniary damage
“(1) Action in respect of pecuniary damage caused by a violation of the right to a trial without undue delay may be brought by the party within eighteen months of the final ruling of the court on the party's case in accordance with the provisions of the Obligations Code concerning pecuniary damage.
(2) When deciding on pecuniary damage, the court shall take account of the provisions of the Obligations Act and the criteria referred to in section 4 and section 16, paragraph 3, of the present Act. Strict liability for damage caused shall lie with the Republic of Slovenia.”
COMPLAINTS
11. The applicants complained under Article 6 § 1 of the Convention about the excessive length of civil proceedings.
12. They also complained under Article 13 of the Convention - either explicitly or implicitly - that they did not have an effective domestic remedy in this regard.
THE LAW
13. On 20 February and 13 September 2007 the respondent Government were given notice of the applications listed in the attached table.
14. Subsequently, on the dates indicated in the attached table, the State Attorney's Office reached settlements with the applicants under section 25 of the 2006 Act (see “Relevant domestic law” above). The State Attorney's Office acknowledged the violation of the right to a trial within a reasonable time and the lack of efficient remedies under Articles 6 and 13 of the Convention and awarded monetary compensation in respect of non-pecuniary damage and, where requested, reimbursement of the relevant costs and expenses to each applicant. The awarded amount depended on the individual circumstances of each case (see the attached table).
15. On the dates indicated in the attached table applicants Mr Potočnik, Mr Lebar and Mr Toplak informed the Court that they wished to withdraw part of their applications, while maintaining their requests for compensation in respect of pecuniary damage under Article 41 of the Convention.
16. In their submissions, the respondent Government contested the applicants' claim for pecuniary damages. They maintained that there was no causal link between the alleged pecuniary damage and the violation of the right to a trial within a reasonable time. In any event, it was open to the applicants to bring proceedings under section 25 § 2 in conjunction with section 21 § 2 of the 2006 Act (see “Relevant domestic law” above).
17. With regard to the outstanding requests for compensation in respect of pecuniary damage submitted by applicants Mr Potočnik, Mr Lebar and Mr Toplak, the Court does not discern any causal link between the violations acknowledged by the respondent Government and the alleged pecuniary damage. Moreover, it appears that the applicants have not exhausted the domestic legal avenues at their disposal. The Court therefore rejects these claims.
18. Furthermore, on 29 August 2007 applicant Mr Rebec reached a friendly settlement with the State Attorney's Office. According to the Government, the settlement covered both the employment proceedings and the execution proceedings stemming from them (see the attached table), whereas the applicant claimed that the friendly settlement covered only the main employment proceedings, which terminated on 24 September 2004. He stated that he was entitled to a higher amount of damages than that attributed by the domestic courts and claimed 6,000 euros (EUR) in respect of the execution proceedings. The Government stated that the amounts claimed by the applicant, who had been previously employed by a State agency, were in fact a part of the sum to be paid by the debtor in compliance with the employment court's judgment, and that it was disputed between the parties whether the debtor had paid all the amounts due; however, this was a matter for the domestic courts to resolve.
19. As to Mr Rebec, the Court first notes that both the main employment proceedings and the subsequent execution proceedings were mentioned in the text of the friendly settlement declaration, although the Government explicitly acknowledged a violation of the right to a speedy process before only the employment courts. Even assuming that the friendly settlement does not cover the execution proceedings, the Court notes that their maximum duration is one year and six months for two levels of jurisdiction and four instances, which does not infringe the “reasonableness” requirement of Article 6 of the Convention. The applicant's complaint in this regard is therefore manifestly ill-founded. Moreover, in so far as it could be understood that the applicant has not received all the amounts due in the framework of the execution proceedings, the Court notes that the applicant still has various remedies at his disposal in the framework of those proceedings; he has not therefore exhausted domestic legal remedies.
20. Furthermore, the Court notes that on 6 August 2008 applicant Mr Drobnič and the State Attorney's Office reached a friendly settlement concerning the payment of compensation in respect of non-pecuniary damage. On the same day the applicant withdrew part of his application. In so far as it could be understood that the applicant's outstanding request for an award of a “fair just satisfaction” amounts to a request for compensation in respect of pecuniary damage of an unspecified amount, the Court does not discern any causal link between the violations acknowledged by the respondent Government and the alleged pecuniary damage. The Court therefore rejects this claim.
21. 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
(a) the applicant does not intend to pursue his application; or
(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.
22. The Court takes note that, following the settlements reached between the parties, the matter has been resolved at the domestic level with regard to the acknowledgement of the violation of Articles 6 and 13 of the Convention and the applicants' requests for compensation in respect of non-pecuniary damage under Article 41 of the Convention (Article 37 § 1 (b) of the Convention).
23. 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 applications to be continued (Article 37 § 1 in fine of the Convention).
24. With regard to the requests by applicants Mr Potočnik, Mr Lebar, Mr Toplak and Mr Drobnič for compensation in respect of pecuniary damage under Article 41 of the Convention, the Court considers that they are manifestly ill-founded for the reasons set out above and must be rejected under Article 35 §§ 3 and 4 of the Convention. As to Mr Rebec's claim for payment of outstanding sums, the Court notes that he has not properly exhausted domestic legal remedies. This part of his application should therefore be rejected under Article 35 §§ 1 and 4 of the Convention.
25. In these circumstances, the cases should in part be struck out of the list and declared partly inadmissible.
For these reasons, the Court unanimously
Decides to join the applications;
Decides to strike part of the applications out of its list of cases and to declare the remainder of the applications inadmissible.
Santiago QuesadaJosep Casadevall
RegistrarPresident
No.
App. No.
Name
Type of proceedings and
relevant period
Date of the friendly settlement
Partial withdrawal of the application
Non-pecuniary damages
Costs and expenses
Total settlement figure
Outstanding requests for
compensation in request of pecuniary damage or other
1
3045/03
POTOČNIK Anton
Employment proceedings,
app. 8 years and 8 months for 2 levels of jurisdiction
23 August 2007
21 September 2007
EUR 2,520
/
EUR 2,520
(acknowledgment of a violation of Articles 6 and 13 of the Convention and award of compensation in respct of non-pecuniary damage)
EUR 35,066 claimed for compensation (in respect of pecuniary damage), plus accrued interest and costs
2
7894/03
REBEC Marko
Employment proceedings and related execution proceedings, total duration 11 years and 7 months, of which 10 years and 1 month for the main proceedings, which terminated on 24 September 2004 (3 levels of jurisdiction and 9 instances involved), and max. 1 year and 6 months for the execution proceedings (2 levels of jurisdiction and 4 instances involved)
29 August 2007
5 October 2007
EUR 2,160
/
EUR 2,160
(dispute between the Government and the applicant as to whether the settlement covered both sets of proceedings)
further EUR 6,000 claimed in respect of the execution proceedings
3
9696/03
LEBAR Marjan
Employment proceedings and execution proceedings,
8 years and 3 months after
the ratification of the Convention for the main proceedings (2 levels of jurisdiction and 3 instances), less than 4 months for the execution proceedings after termination of the main employment proceedings (1 level of jurisdiction)
25 March 2008
14 April 2008
EUR 2,880
EUR 413.12
EUR 3293.12
(acknowledgment of a violation of Articles 6 and 13 of the Convention and award of compensation in respect of non-pecuniary damage)
EUR 23,033.60 claimed for compensation (pecuniary damage), plus accrued interest
4
13566/04
TOPLAK Franc
Employment proceedings,
11 years and 8 months
after ratification of the Convention,
4 levels of jurisdiction and 5 instances
6 December 2007
22 January 2008
EUR 3,240
/
EUR 3,240
(acknowledgment of a violation of Articles 6 and 13 of the Convention and award of non-pecuniary damages)
EUR 100,000 claimed in compensation for pecuniary damage
5
14698/04
DROBNIČ Rafko
Civil proceedings,
6 years and 5 months for 1 level of jurisdiction
6 August 2008
6 August 2008
EUR 2,160
/
EUR 2,160
(acknowledgment of a violation of Articles 6 and 13 of the Convention and award of non-pecuniary damage)
adequate compensation claimed in respect of pecuniary damage
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