THIRD SECTION
DECISION
Applications nos. 13992/03, 33814/03, 37190/03, 3088/03, 38847/04
by Boštjan ZAJC and 4 Others
(see the attached table)
against Slovenia
The European Court of Human Rights (Third Section), sitting on 6 May 2008 as a Chamber composed of:
Josep Casadevall,
Elisabet Fura-Sandström,
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 Government’s submissions and their request to strike the cases out of its list of cases and the text of unilateral declarations made with a view to resolving the issues raised by the applications,
Having regard to the applicants’ responses to the Government’s unilateral declarations and their further comments,
Having deliberated, decides as follows:
THE FACTS
1. The applicants are Slovenian nationals who live in Slovenia. The first four applicants, Mr Zajc, Mr Podlogar, Mr Hohkraut and Mr Januš were represented before the Court by Mr Boštjan Verstovšek, a lawyer practising in Celje. The fifth applicant, Mr Rozman, was not represented by a lawyer. 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. The main proceedings
3. The applicants were parties to civil 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 and 22 February 2007, 21 May 2007 and 11 September 2007 the respondent Government were given notice of the present applications.
5. On the dates indicated in the table the State Attorney’s Office sent settlement proposals to the applicants under section 25 of the Act on the Protection of the Right to a Trial without undue Delay (“the 2006 Act”). In its proposals, the State Attorney’s Office acknowledged the violation of the right to a trial within a reasonable time and offered to pay monetary compensation in respect of non-pecuniary damage and reimbursement of the costs and expenses connected with the case, if claimed, to each applicant (see the attached table).
6. Subsequently, each of the applicants informed the State Attorney’s Office that they were not willing to accept the proposals as the sums offered were too low. At the same time, they set out their proposals with a view to securing settlements.
7. No settlements have been reached so far.
B. Relevant domestic law
8. 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 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” 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.
9. Section 25 of the 2006 Act 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 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.”
10. The following parts of the 2006 Act are relevant as regards the “claim for just satisfaction”:
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 the amount of 300 up to 5,000 euros.
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.”
11. Section 27 of the amended Personal Income Tax Act (Zakon o dohodnini, Official Journal No. 117/06), which entered into force on 1 January 2007, provides that monetary compensation for non-pecuniary damage received in accordance with the 2006 Act is exempt from personal income tax (dohodnina).
COMPLAINTS
12. The applicants complained under Article 6 § 1 of the Convention of excessive length of the civil proceedings to which they were parties.
13. They also complained under Article 13 of the Convention that they did not have an effective domestic remedy in this regard.
THE LAW
14. The applicants complained that the length of the proceedings was in breach of Article 6 § 1 of the Convention, which, in so far as relevant, provides:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
15. The applicants also complained that the remedies available in Slovenia in length of proceedings cases were ineffective. They relied on Article 13 of the Convention, which 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.”
16. Having been notified of the applications (see paragraph 4 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 these cases. In the event of an affirmative answer they were requested to submit a copy of the settlement proposals made to the applicants under the mentioned provision.
A. The Government’s submissions
17. In their submissions, dated 26 July 2007 (as regards the first three applicants), 12 October 2007 (as regards the fourth applicant) and 28 January 2008 (as regards the fifth applicant) the Government informed the Court that section 25 of the 2006 Act was applied to the respective applications and enclosed copies of the settlement proposals.
18. The Government submitted unilateral declarations acknowledging a violation of the right to a trial within a reasonable time, which could be found in the mentioned settlement proposals made under section 25 of the 2006 Act, and argued that the applicants were offered an appropriate just satisfaction.
The Government furthermore confirmed that if they failed to pay the sums set out in the attached table within three months of the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights, simple interest would be payable at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
19. Since the applicants disagreed with the amount offered in monetary compensation and, as regards the first four applicants, the amount offered in reimbursement of legal costs, the Government, relying on Van Houten v. the Netherlands ((striking out), no. 25149/03, ECHR 2005‑IX), requested the Court to strike the applications out of the list in accordance with Article 37 § 1 (c) of the Convention.
20. The Government submitted that the compensation offered to each 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. Each settlement proposal included detailed explanation referring to the relevant period and the levels of jurisdiction involved in the case and took into account the Court’s case-law which allowed the national authorities to provide just satisfaction equivalent to 45 % of the amount which would be awarded by the Court in a similar case.
21. As regards the legal costs of the first four applicants, they were offered reimbursement of the lawyers’ fees, which were calculated on the basis of the domestic attorneys’ tariff as applied to the settlement reached prior to the beginning of litigious proceedings, plus 20 % tax. The Government argued that the applicants were not entitled to a 100 % increase in tariff, as they claimed to be, since the application forms had been submitted to the Court only in the Slovene language. In addition, the full sums claimed in respect of material expenses were offered to be reimbursed to the applicants.
22. Finally, the Government argued that section 25 provided an accessible, sufficient and effective remedy which the applicants should have exhausted in order to comply with Article 35 § 1 of the Convention.
B. The applicants’ submissions
23. Only the first four applicants provided comments in replying to the Government’s submissions. They argued that the settlement proposals made by the State Attorney’s Office were too low in respect of non-pecuniary damage. The proposed amount was only 25% or 30% of what would be normally awarded by the Court. They also claimed that the proposed reimbursement of legal costs amounted only to 30% of the sums claimed by them.
24. The first four applicants also argued that they would be more willing to accept the settlement proposals had the Government offered to reimburse the legal costs as requested by the applicants in their proposals, namely approximately 900 euros (EUR) plus 20% tax. This sum was based on the fact that the Court had previously awarded the applicants’ lawyers EUR 1,000 for each length of proceedings case.
25. In addition, referring to several unsuccessful claims concerning compensation for the length of proceedings lodged with the domestic courts before the implementation of the 2006 Act, the first four applicants argued that the judicial proceedings could not be regarded as an effective remedy for the length of proceedings complaints.
C. The Court’s assessment
1. Complaints about the length of proceedings
26. 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.
27. 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.
28. 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 notification 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.
29. 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.
30. As regards the present cases, the Court notes that all the applicants received the above-mentioned settlement proposals. The Court takes note of the Government’s request to strike the applications out of the list of cases on the basis of their unilateral declaration (see paragraphs 18-21 above).
31. The applicants disputed the Government’s request (see paragraphs 23 and 25 above).
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 reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
Article 37 § 1 in fine includes the provision that:
“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.”
34. The Court also 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).
35. 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, ECHR 2006-...). In this connection the Court reiterates that there is a strong but rebuttable presumption that excessively long proceedings will occasion non-pecuniary damage (Scordino v. Italy (no. 1) [GC], no. 36813/97, § 204, ECHR 2006‑.... ) and that the characteristics of sufficient redress relates also to the amount awarded in respect of such damages (Scordino, cited above, § 202).
36. As to the circumstance of the present cases, the Court notes that the Government acknowledged that the length of the domestic proceedings in the applicants’ cases was excessive and in breach of their right to a trial within a reasonable time. The Court also notes that the respondent State adopted several measures in the framework of the “Lukenda Project” to address the structural problem of delays in judicial proceedings (see paragraphs 8 to 10 above; see also Grzinčič v. Slovenia, no. 26867/02, §§ 36 and 37, 3 May 2007).
37. The Court further understands the Government’s acceptance of the applicants’ claims in respect of non-pecuniary damage and costs and expenses in the sums indicated in the attached table, as an undertaking to pay those sums to the applicants in the event of the Court’s striking the case out of its list. The Court further notes that sums in respect of non-pecuniary damage are exempt from personal income tax (see paragraph 11 above). As regards sufficiency of the sums proposed, the Court notes the following.
38. Firstly, the Court observes that the proposed sums in respect of non-pecuniary damage are lower than the sums awarded for comparable delays in the Court’s case-law. However, as it has already stressed in the context of assessing the sufficiency of redress awarded as a result of using a domestic remedy (Dubjakova v. Slovakia (dec.), no. 67299/01, 10 October 2004), the Court considers equally in the context of the proceedings under section 25 of the 2006 Act that whether the amount offered to the applicants may be regarded as reasonable falls to be assessed in the light of all the circumstances of the case. These include not merely the duration of the proceedings in the specific case but the value of the award judged in the light of the standard of living in the respondent State, and the fact that under the national system compensation will in general be awarded and paid more promptly than would be the case if the matter fell to be decided by the Court under Article 41 of the Convention. The domestic procedures are also closer and more accessible than the proceedings before the Court and are processed in the applicant’s own language, they thus offer an advantage that needs to be taken into account (see Scordino, cited above, §§ 195-207, 213-214, 267-272; Dubjakova, cited above, and Kalajžić v. Croatia (dec.), no. 15382/04, 28 September 2006).
Having regard to the foregoing and in view of the amount proposed to the applicants in respect of non-pecuniary damage (see, for example, Scordino, cited above, § 272, and Cocchiarella, cited above, § 146), the Court considers that the settlement proposals cannot be regarded as unreasonable.
39. Secondly, as regards the amounts proposed in respect of legal costs to the first four applicants, which they disputed, the Court, apart from the above considerations which likewise apply here, notes that the proposals were based on the domestic attorneys’ tariff concerning settlement proceedings, which could reasonably be compared to the proceedings conducted in the present cases. The Court further notes that legal representation is not required in proceedings instituted on the basis of section 25 of the 2006 Act, which, moreover, do not appear to be of any complexity. In view of the foregoing and taking into account the amount of work carried out by the applicants’ lawyers in respect of the present applications, the Court finds the proposed amounts acceptable.
40. Having regard to the above, the Court considers that it is no longer justified to continue the examination of this part of the applications (see Riis v. Norway (dec.), no. 23106/02, 8 July 2004; Van Houten, cited above, and, by contrast, Wawrzynowicz v. Poland, no. 73192/01, §§ 40 and 41, 17 July 2007). Moreover, in light of the above considerations, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of these complaints (Article 37 § 1 in fine). Accordingly, this part of the applications should be struck out of the list.
2. Complaints of lack of effective remedies
41. As the Court has held on many occasions, Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief. The scope of the Contracting States’ obligations under Article 13 varies depending on the nature of the applicant’s complaint; however, the remedy required by Article 13 must be “effective” in practice as well as in law (see Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000‑XI).
42. 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, cited above, § 159). 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).
43. As to the present complaints, 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 (paragraphs 9 and 10, and 27 to 29 above). The Court further notes that such a claim is subject to relevant provisions of the 2006 Act (see paragraphs 9 and 10 above) and has been found in Korenjak v. Slovenia ((dec.), no. 463/03, 15 May 2007, § 60) to constitute appropriate means of redressing a violation that has already occurred.
44. The Court reiterates that it has found in the above-mentioned decision that the 2006 Act was specifically designed to address the issue of the excessive length of proceedings before domestic courts and there was no reason to doubt its effectiveness at this stage (see Korenjak, cited above, § 73).
45. As regards the applicants’ particular circumstances, the Court notes that all the applicants concerned have received settlement proposals from the State Attorney’s Office. These proposals have been found to offer the applicants reasonable just satisfaction and the Court has decided to discontinue the examination of the applications in so far as they concerned Article 6 § 1 of the Convention (see paragraphs 26-40 above). Notwithstanding this finding, the Court notes that further to receiving the mentioned settlements it would, in any event, be open to applicants who are dissatisfied with the State Attorney’s proposals, to lodge a “just satisfaction claim” with the domestic courts in respect of their length of proceedings complaints in accordance with the relevant provisions of the 2006 Act (see paragraph 43 above). The applicants failed to submit any relevant argument as to why this remedy should be considered ineffective.
46. In view of the foregoing, the Court considers that the complaints under Article 13 are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to join the applications;
Takes note of the terms of the respondent Government’s declarations in respect of the complaints about the length of the proceedings under Article 6 § 1 and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the applications out of its list of cases in so far as they relate to the above complaints in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the applications inadmissible.
Santiago QuesadaJosep Casadevall Registrar President
App. no.
Name
Type of proceedings, relevant period
Settlement proposals
(date)
Compensation
Costs and expenses
1
13992/03
Boštjan
ZAJC
civil proceedings, six years and two months for three levels of jurisdiction
30 May 2007
540 euros
299.19 euros
2
33814/03
Alojz
PODLOGAR
civil proceedings, four years and nine months for one level of jurisdiction
28 May 2007
1,440 euros
417.58 euros
3
37190/03
Jože
HOHKRAUT
civil proceedings, four years for one level of jurisdiction
30 May 2007
1,440 euros
419.92 euros
4
3088/03
Matej
JANUŠ
civil proceedings, eight years and seven months for five instances and three levels of jurisdiction (the case was one remitted)
7 August 2007
540 euros
290.46 euros
5
38847/04
Dušan
ROZMAN
civil proceedings, six years and eleven months for two levels of jurisdiction
23 November 2007
1,800 euros
NA
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