ŽUNIČ v. SLOVENIA

THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 24342/04
by Branko ŽUNIČ
against Slovenia

The European Court of Human Rights (Third Section), sitting on 18 October 2007 as a Chamber composed of:

MrC. Bîrsan, President,
MrB.M. Zupančič,
MrsE. Fura-Sandström,
MrsA. Gyulumyan,
MrDavid Thór Björgvinsson,
MrsI. Ziemele,
MrsI. Berro-Lefèvre, judges,
and Mr S. Quesada, Section Registrar,

Having regard to the above application lodged on 23 June 2004,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Branko Žunič, is a Slovenian national who was born in 1953 and lives in Dolenja Vas. He was represented before the Court by Mr B. Verstovšek, a lawyer practising in Celje.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

1. The main proceedings

3. On 12 May 1997 the applicant was injured in an accident at work. The applicant’s employer had taken out insurance with the insurance company ZT.

4. On 28 March 2000 the applicant instituted civil proceedings against ZT in the Celje District Court (Okrožno sodišče v Celju) seeking damages in the amount of 9,970,530 Slovenian tolars (approximately 41,550 euros (EUR)) for the injuries sustained.

5. Between 14 September 2000 and 29 May 2007 the applicant lodged six preliminary written submissions and adduced evidence.

6. Between 22 June 2004 and 26 August 2005 he made four requests that a date be set for a hearing.

7. During the proceedings the court appointed a medical expert. On 23 May 2005 the court sought an additional opinion from the appointed expert.

8. On ZT’s objection the court, on 6 September 2005, declared lack of jurisdiction to consider the case and ordered that it be heard before the Novo Mesto District Court (Okrožno sodišče v Novem mestu). The applicant appealed against that decision on 9 September 2005. On 23 November 2005 the Celje Higher Court (Višje sodišče v Celju) allowed the applicant’s appeal and rejected the defendant’s objection as to the lack of jurisdiction.

9. On 17 April 2007 the first hearing to be held in the case was adjourned until 18 May 2007 since ZT needed time to prepare pleadings in reply to those of the applicant.

10. On 18 May 2007 the court held a hearing on the merits of the case.

11. The proceedings are currently pending before the Celje District Court.

2. The applicant’s proceedings under the 2006 Act

12. On 23 February 2007 the applicant lodged a supervisory appeal with the Celje District Court under section 5 of the 2006 Act complaining that the civil proceedings had been pending since 28 March 2000. He further argued that the proceedings were not of particular complexity and that there were no reasons for such a delay. It would appear that the applicant’s legal representatives have lodged supervisory appeals in 650 cases pending before the same court.

13. On 15 March 2007 the President of the Celje District Court dismissed the applicant’s supervisory appeal as ill-founded. He relied on the fact that the applicant’s case had not been granted priority; that the judge C.K., to whom the applicant’s case had been assigned on 1 March 2007, had to deal with 264 other cases, some of them much older than the applicant’s; that the order of precedence had to be respected; and that the delays in the present case had resulted from systemic problems and were not the fault of the judge. The President of the Celje District Court therefore deemed it impossible to order any of the measures stipulated in the 2006 Act. Referring to section 6, paragraph 7, the President noted that since other judges were likewise overburdened, it would not be sensible to assign the case to another judge. Moreover, seven new judicial posts had been created at the court as a result of the Lukenda Project (see paragraph 16 below), three of which had been filled, and the rest of which were in the process of being filled. According to him, this would, reduce delays in the future.

14. On 30 March 2007 the applicant lodged a motion for a deadline under section 8 of the 2006 Act. He relied on substantially the same reasons as in his supervisory appeal and requested that the case be decided in one month’s time.

15. On 25 April 2007 the President of the Celje Higher Court, in agreement with the first-instance decision, dismissed the motion for a deadline, finding that the applicant had simply reiterated the general complaints contained in his supervisory appeal and had, in respect of the requirements stipulated in section 5 paragraph 2 (5), only indicated the date of the beginning of the proceedings.Relevant domestic law

1. The Lukenda Project

16. Following the judgment in Lukenda v. Slovenia (no. 23032/02, 6 October 2005), and decision no. U-I-65/05 of the Constitutional Court (22 September 2005), both binding the Slovenian State to establish conditions in which the right to a trial without undue delay must be afforded, the Slovenian Government adopted on 12 December 2005 a Joint State Project on the Elimination of Court Backlogs, the so-called 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.

2. The 2006 Act

17. The Act on the Protection of the Right to a Trial without undue Delay (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Journal, No. 49/2006- “the 2006 Act”), as a part of the Lukenda Project, has been implemented since 1 January 2007.

18. Section 3 of the 2006 Act provides for two remedies to expedite pending proceedings - a supervisory appeal (nadzorstvena pritožba) and a motion for a deadline (rokovni predlog) - and, ultimately, for a claim for just satisfaction in respect of damage sustained because of the undue delay (zahteva za pravično zadoščenje).

19. Section 4 defines the criteria that domestic authorities should take into account when assessing the complaints:

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.”

20. The supervisory appeal is governed by sections 5 and 6, which provide as far as relevant:

Section 5 - Supervisory appeal

“(1) If a party considers that the court is unduly protracting the decision-making, he or she may lodge a supervisory appeal in writing before the court hearing the case; the decision thereon is taken by the .... president of the court (hereinafter ‘the president of the court’).

(2) For the purposes of decision-making concerning the protection of the right to a trial without undue delay, the supervisory appeal shall contain the following elements:

...

– indication of circumstances or other particulars concerning the case, which demonstrate that the court is unduly protracting the decision-making;

...

Section 6 - Decision on supervisory appeal

“(1) If the supervisory appeal is manifestly unfounded having regard to the timetable for resolving the case concerned by the supervisory appeal, the president of the court shall dismiss the appeal by a ruling.

(2) If the supervisory appeal does not contain all the required elements referred to in section 5(2) of this Act, the president of the court shall dismiss it by a ruling. No appeal shall lie against that ruling.

(3) If no ruling as provided for in paragraphs 1 or 2 of this section is given, the president of the court shall, in the framework of his court management competence under the statute governing the court system, forthwith request the .... judge or chair of a court panel (hereinafter ‘the judge’) to whom the case has been assigned for resolution to submit a report indicating reasons for the duration of proceedings, not later than fifteen days after receiving the request of the president of the court or after obtaining the file, if necessary for drawing up the report. The report shall include the declaration in respect of criteria referred to in section 4 of this Act and the opinion on the time-limit within which the case may be resolved. The president of the court may also require the judge to submit the case file if he assesses that, in the light of allegations of the party indicated in the supervisory appeal, its examination is necessary.

(4) If the judge notifies the president of the court in writing that all relevant procedural acts will be performed or a decision issued within a time-limit not exceeding four months following the receipt of the supervisory appeal, the president of the court shall inform the party thereof and thus conclude the consideration of the supervisory appeal.

(5) If the president of the court establishes that in view of the criteria referred to in section 4 of this Act the court is not unduly protracting the decision-making in the case, he shall dismiss the supervisory appeal by a ruling.

(6) If the president of the court ... in view of the criteria referred to in section 4 of this Act, (he) establishes that the court is unduly delaying the decision-making in the case, he shall, depending on the status and nature of the case and by a ruling, order a deadline for the performance of certain procedural acts, and may also order that the case be resolved as a priority owing to the circumstances of the case, particularly when the matter is urgent. If he orders that appropriate procedural acts be performed by the judge, he shall also set the time-frame for their performance, which may not be less than fifteen days and not longer than six months, as well as the appropriate deadline for the judge to report on the acts performed.

(7) If the president of the court establishes that the undue delay in decision-making in the case is attributable to an excessive workload or an extended absence of the judge, he may order that the case be reassigned. He may also propose that an additional judge be assigned to the court or order other measures in accordance with the statute governing the judicial service.

...”

21. Sections 8 and 11 define the motion for a deadline and provide for measures that may be applied by the court dealing with the motion. They read, in so far as relevant, as follows:

Section 8 - Motion for a deadline

“(1) If, under section 6(1) or (5) of this Act, the president of the court dismisses the supervisory appeal ..., the party may lodge a motion for a deadline under section 5(1) of this Act with the court hearing the case.

...

(3) The party may lodge the motion for a deadline within fifteen days after receiving the ruling or after the time-limits provided for in paragraph 1 of this section.”

Section 11 - Decision on the motion for a deadline

“(1) If the motion for a deadline is manifestly unfounded, having regard to the timetable for the resolution of the case and the actions of the party, the president of the court shall dismiss it by a ruling.

...”

(3) If the president of the court establishes that in view of the criteria referred to in section 4 of this Act the court is not unduly protracting the decision-making in the case, he shall dismiss the motion for a deadline by a ruling.

(4) If the president of the court establishes that, in view of the criteria referred to in section 4 of this Act, the court is unduly protracting the decision-making in the case, he shall order, by a ruling, that the appropriate procedural acts be performed by the judge and shall also set the time-frame for their performance, which may not be less than fifteen days and not longer than four months, as well as set the appropriate deadline for the judge to report on the acts performed. According to the circumstances of the case, particularly when the matter is urgent, the president of the court may also order that the case be resolved as a priority and propose to the president of the court referred to in section 5(1) of this Act that the measures referred to in section 6(7) of this Act be implemented.

(5) The president of the court shall decide on the motion for a deadline within fifteen days after receiving it.”

22. Section 7 provides for the limitations concerning filing of a new supervisory appeal or a motion for a deadline.

Section 7 - Limitation on filing a supervisory appeal and motion for a deadline

“(1) If the president of the court acts in compliance with Article 6, paragraphs 4 or 6 of this Act, the party may not file a new supervisory appeal nor a motion for a deadline concerning the same case before the expiry of deadlines set in the notification or ruling of the president of the court. This provision shall not apply to cases where detention is proposed or ordered or where an interim measure is proposed.

(2) If a ruling was issued in accordance with Article 6, paragraphs 1 or 5 of this Act, the party may file a new supervisory appeal only after six months have elapsed from the receipt of the decision. This provision shall not apply to cases where detention is proposed or ordered or where an interim measure is proposed.”

23. Further to section 15, just satisfaction may be provided by payment of monetary compensation, a written statement of the State Attorney’s Office or the publication of a judgment. A claim can be lodged under the following condition:

“(1) If the supervisory appeal lodged by the party was granted or if a motion for a deadline has been lodged, the party may claim just satisfaction under the present Act.

...”

24. Section 16 provides for a compensatory remedy and fixes the maximum amount that could be awarded:

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 for individual finally resolved cases shall be granted in the amount of 300 up to 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, actions of the party and the importance of the case for the party.”

25. Sections 19 and 20 govern just satisfaction proceedings:

Section 19 - Proceedings before the State Attorney’s Office

“(1) Proceedings to enforce a claim for just satisfaction, provided that the condition referred to in section 15(1) of this Act is met, shall be instituted by a party by means of a motion for settlement lodged with the State Attorney’s Office with a view to reaching an agreement on the type or amount of just satisfaction. The party may lodge such motion within nine months after the final resolution of the case. The State Attorney’s Office shall rule on the motion of the party within a period of three months if it establishes that the just satisfaction claim is substantiated. Until the expiry of the above-mentioned period, the party may not assert any claim for monetary compensation by way of just satisfaction by bringing an action before the competent court.

(2) If, in accordance with paragraph 1 of this section, the agreement has been reached with the party, the State Attorney’s Office shall enter into an out-of-court settlement with the party.”

Section 20 - Proceedings in a court

“(1) If no agreement under section 19 of this Act is reached upon the motion for settlement, or the State Attorney’s Office and the party fail to negotiate an agreement within three months of the date of the motion being lodged, the party may bring an action for damages.

(2) An action for damages against the Republic of Slovenia shall be brought not later than eighteen months after the final resolution of the party’s case.

...”

3. The Civil Procedure Act

26. The relevant provisions of the Civil Procedure Act (Zakon o pravdnem postopku, Official Gazette no. 83/2001) provide:

Section 319

“A judgment, against which an appeal can no longer be lodged, shall become final (pravnomočen), insofar as the party’s claim or counter-claim has been decided therein.

...”

Section 333

“The parties may lodge an appeal against a judgment delivered at first instance within thirty days from the service of its written grounds...

An appeal, lodged on time, precludes the judgment to become final in the part which has been challenged in the appeal.”

Section 367

“The parties may lodge an appeal on points of law against a final judgment, delivered at second instance, within thirty days from the service of its written grounds.”

COMPLAINTS

27. The applicant complained, under Article 6 § 1 of the Convention, that the length of the pending civil proceedings had been excessive.

28. The applicant further complained that the new domestic remedies afforded by the 2006 Act had been ineffective in his case as in other similar cases. In particular, he argued that the delayed proceedings were a systemic problem which could not be tackled by the accelerative remedies and that the respondent State had not provided for an effective compensatory remedy. He relied in substance on Article 13 of the Convention.

THE LAW

29. 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...”

30. He further complained that the remedies available in respect of the excessively lengthy legal proceedings in Slovenia were ineffective in his case. Article 13 of the Convention reads as follows:

“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.”

31. The Court reiterates that under Article 35 § 1 of the Convention it may only deal with a matter after all domestic remedies have been exhausted; a requirement which is closely bound up with the applicant’s complaint under Article 13.

A. Relevant principles deriving from the Court’s case-law

32. The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring their case against the State before an international judicial organ to use first the remedies provided by the national legal system. Consequently, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal systems. The 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. (see, among many other authorities, Aksoy v. Turkey, judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, pp. 2275-76, § 51).

33. In addition, according to the “generally recognised principles of international law”, there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his disposal (see Selmouni v. France [GC], no. 25803/94, § 75, ECHR 1999‑V). However, the Court points out that the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports of Judgments and Decisions 1996‑IV, p. 1212, § 71; Van Oosterwijck v. Belgium, judgment of 6 November 1980, Series A no. 40, pp. 18-19, § 37, and Brusco v. Italy (dec.), no. 69789/01, ECHR 2001-IX).

34. The Court reiterates that remedies available to a litigant at domestic level for raising a complaint about the length of proceedings are “effective” within the meaning of Article 13 of the Convention if they “[prevent] the alleged violation or its continuation, or [provide] adequate redress for any violation that [has] already occurred” (see Kudła v. Poland [GC], no. 30210/96, § 158, ECHR 2000-XI). Article 13 therefore 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 (ibid., § 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).

35. However, for countries where length-of-proceedings violations already exist, a remedy designed to expedite the proceedings – although desirable for the future – may not be adequate to redress a situation in which the proceedings have clearly already been excessively long. (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 185, ECHR 2006‑...)

36. Moreover, according to the Court’s settled case-law, a remedy which will not bear fruit in sufficient time does not fall within the category of effective remedies which Article 35 § 1 would oblige the applicants to exhaust (see Belinger v. Slovenia (dec.), no. 42320/98, 2 October 2001). Accordingly it cannot be ruled out that excessive delays in an action for compensation will render the remedy inadequate (see Scordino, cited above, § 195).

37. Finally, the Court has already had occasion to reiterate that, subject to compliance with the requirements of the Convention, the Contracting States are afforded some discretion as to the manner in which they provide individuals with the relief required by Article 13 and conform to their Convention obligation under that provision. It has also stressed the importance of the rules relating to the subsidiarity principle so that individuals are not systematically forced to refer to the Court in Strasbourg complaints that could otherwise, and in the Court’s opinion more appropriately, have been addressed in the first place within the national legal system (see Scordino, cited above, § 187, and Kudła, cited above, §§154-55). Accordingly, where the legislature or the domestic courts have agreed to play their true role by introducing a domestic remedy the Court will clearly have to draw certain conclusions from this (Scordino, cited above, § 189).

B. The remedies provided in the 2006 Act and the Court’s findings in the Grzinčič judgment and Korenjak decision

38. In a letter of 9 October 2006 the State Attorney General officially informed the Court that, further to its judgment in the Lukenda case (cited above) binding the Slovenian State to adopt appropriate legal measures and administrative practices in order to secure the right to a trial within a reasonable time, the 2006 Act had been enacted on 26 April 2006. The 2006 Act came into force on 27 May 2006 and became operational on 1 January 2007.

39. The Court observes that the purpose of the remedies introduced by the 2006 Act is precisely to enable the Slovenian authorities to redress breaches of the “reasonable time” requirement at domestic level.

40. Under the 2006 Act, in proceedings pending at first or second instance, a claimant may seek acceleration by means of a supervisory appeal and a motion for a deadline. The latter constitutes, in substance, an appeal in respect of an unsuccessful supervisory appeal under certain conditions. The possibility of a supervisory appeal and a motion for a deadline empowers, firstly, the president of the court examining the case and, secondly, the president of the appellate instance, to examine complaints related to the excessive length of proceedings and to take appropriate action. If such a complaint is justified, they can order time-limits for procedural measures, decide that a case should be treated with priority, or reassign a case, and so on (see paragraphs 20 and 21 above). Moreover, if the president of the court establishes that the undue delay in the proceedings is attributable to an excessive workload or an extended absence of a judge, he may order that the case be reassigned or propose that an additional judge be assigned to the court (see paragraph 20). According to section 7 of the 2006 Act, a party is entitled to lodge further supervisory appeals, in some cases after the expiry of certain time-limits (paragraph 22 above).

41. In addition to the accelerative remedies, the 2006 Act also provides the possibility to obtain redress through a compensatory remedy, namely by bringing a claim for just satisfaction. As to the latter, it transpires from sections 15, 19 and 20 of the 2006 Act (paragraphs 23 and 25 above) that for the party to be able to lodge a claim for just satisfaction two cumulative conditions must be satisfied. Firstly, during the first and/or second instance proceedings the applicant must successfully avail himself of the supervisory appeal or lodge a motion for a deadline, regardless of its outcome. Secondly, the proceedings should be finally resolved (pravnomočno končan). The final resolution of the case in principle refers to the final decision against which no ordinary appeal lies; that would normally be the first, or if the appeal has been lodged, a second-instance court’s decision (see paragraphs 26 above). Moreover, the amount which can be awarded for non-pecuniary damage sustained as a result of the excessive length of the proceedings in each finally resolved case cannot exceed EUR 5,000 (paragraph 24 above).

42. On 3 May 2007, the Court delivered a judgment in the case of Grzinčič v. Slovenia (no. 26867/02, 3 May 2007) followed by the decision in Korenjak v. Slovenia ((dec.) no. 463/03, § 62, 15 May 2007) in which the applicants complained, inter alia, of the length of proceedings which were pending at second instance. In these cases the applicants had failed to avail themselves of any of the remedies provided by the 2006 Act. Further to the assessment of the 2006 Act, the Court was satisfied that the aggregate of remedies provided by the new legislation in cases of excessively long proceedings pending at first and second instance were effective in the sense that the remedies were in principle capable of both preventing the continuation of the alleged violation of the right to a hearing without undue delay and of providing adequate redress for any violation that had already occurred (see Grzinčič, cited above, § 98). The Court therefore concluded that the applicants should have exhausted the new remedies in order to comply with Article 35 § 1 of the Convention. The Court further found that this conclusion applied not only to respective applications lodged after the date on which the 2006 Act became operational, but also for those concerning domestic proceedings pending at first and second instance which were already on the Court’s list of cases by that date (see Grzinčič, cited above, § 102).

C. Application to the present case

43. In the present case the Court is faced with one of the follow-up cases, enabling it to assess the new remedies not only in theory but also in practice.

44. The Court observes that the impugned domestic proceedings to which the applicant is a party are pending before the first-instance court. It however notes that, unlike the applicants in the Grzinčič and Korenjak cases (both cited above), the applicant in the present case did avail himself of the accelerative remedies. His supervisory appeal and his motion for a deadline were dismissed on the grounds that the delays had resulted from systemic problems, and through no fault of the sitting judge. In dismissing the supervisory appeal the president of the court indicated that further delays should be reduced as a result of the new judicial posts created at the Celje District Court in the framework of the Lukenda Project (see paragraph 13 above).

45. Despite finding the dismissal of the applicant’s supervisory appeal and motion for a deadline regrettable, the Court is aware of the fact that the reasons underlying the systemic problem of excessive length of judicial proceedings, such as inefficiency in the administration of justice, cannot be eliminated immediately. The Court however stresses that Article 13 of the Convention requires that there is an available and sufficient remedy to afford redress in respect of breaches of the “reasonable time” requirement. Article 13, as interpreted in the Court’s case-law (see paragraph 34 above), offers an alterative: a remedy is “effective” if it can be used either to expedite the proceedings or to provide adequate redress, such as just satisfaction, for delays that have already occurred. The Court would emphasize in this respect that it is for the State to organise its judicial system in such a way as to comply with the requirements of that Article (see, mutatis mutandis, R.M.D. v. Switzerland, judgment of 26 September 1997, Reports 1997-VI, p. 2015, § 54).

46. As regards the former alternative, the accelerative remedies, in the present case, failed to be effective so far. Moreover, the proceedings at first instance had lasted almost seven years by the time the 2006 Act became operational and therefore the accelerative remedies, even if they were effective in respect of possible future delays, would most likely not be sufficient in respect of the delays which had already occurred (paragraph 35 above).

47. As regards the remaining alternative, the Court notes that the 2006 Act provides the possibility to lodge a claim for just satisfaction; a possibility which is, however, limited. It observes that for the just satisfaction claim to be admitted, two cumulative conditions must be satisfied pursuant to sections 15, 19 and 20 of the 2006 Act. Firstly, a party had to properly exhaust the accelerative remedies and, secondly, the proceedings must be finally resolved (pravnomočno končan postopek – see paragraph 26). The Court furthermore observes that the maximum amount that can be awarded in respect of non-pecuniary damage sustained as a result of the excessive length of proceedings which have been finally resolved cannot exceed EUR 5,000 (see paragraph 41 above).

48. In the present case the applicant satisfied the above mentioned first statutory condition by using the two accelerative remedies. Each of them was decided by the competent authority in less than a month (see paragraphs 12-15 above). It remains for the Court to determine whether the second condition, namely that just satisfaction can be claimed only in the given period following the final resolution of the case, permits the conclusion that the applicant will have at his disposal a remedy which he should use before applying to the Court.

49. The Court appreciates that the second condition could have the legitimate aim of simplifying the procedure by, inter alia, preventing repeated filing of just satisfaction claims during the pending proceedings. The Court also understands from sections 4 and 16 of the 2006 Act that the compensation for excessive delay should reflect the circumstances and the overall length of the proceedings up to their final resolution (see paragraphs 19 and 24 above).

50. However, the Court notes that, because of this condition, those who believe that they have suffered a violation of their right to a trial within a reasonable time may be obliged to wait even further before being able to seek relief. Therefore, also taking into account that the maximum amount of compensation for non-pecuniary damage is fixed at EUR 5,000 (see, in this connection, Scordino, cited above, §§ 214, 272 and 273), the Court finds it indispensable that the proceedings, which have already been long, are finally resolved particularly promptly following the exhaustion of the accelerative remedies. Indeed, it cannot be ruled out that the question of a reasonably prompt access to a just satisfaction claim will affect whether this remedy, alone or in combination with the accelerative remedies, is effective in respect of the delays which had already occurred (see Mifsud, cited above, and, mutatis mutandis, Scordino, cited above, § 195).

51. In this respect, the Court observes that the respondent State adopted several measures in the framework of the Lukenda Project to address the structural problem of delays in the judicial proceedings (see paragraph 16 above). The Court further notes that the measures aimed at reducing the backlog, such as the employment of additional judges, were also implemented at the court dealing with the applicant’s case. A large backlog of pending cases and shortage of staff were, according to the reply of the President of the court, the very reasons for the delay in the proceedings concerned (paragraph 13 above). The Court also notes that since April 2007 two hearings were scheduled in the applicant’s case, while beforehand none had been (see paragraph 8), and that the applicant can again use the accelerative remedies if new reasons for a delay arise (see paragraph 22 above).

52. The Court further reiterates that the States enjoy some margin of appreciation as to the manner of providing a domestic remedy in respect of the “reasonable time” requirement (see Scordino, cited above, § 189). Moreover, the Court would again emphasize how important it is for the effectiveness of the right to a hearing within a reasonable time and the subsidiarity principle that the issue of excessive length of proceedings is in the first place addressed within the national legal system (see, paragraph 37 above, and Brusco, cited above).

53. Having regard to the above considerations and in view of the fact that no more than six months had elapsed since the applicant had exhausted the accelerative remedies and that progress had indeed been made in dealing with his claim, the Court is inclined to conclude that the applicant should soon be able to use a claim for just satisfaction, which in principle appears to be an effective remedy (see Grzinčič, cited above, § 98). Moreover, there is no reason to believe at this point that the just satisfaction claim, once available, would not have a reasonable prospect of success in the applicant’s case. His application must thus be at the present regarded as premature.

54. The Court’s position may however be subject to review in the future and the national authorities should take particular care to ensure that the 2006 Act is applied in conformity with the Convention and the Court’s case-law. In particular, the national authorities should ensure that the aggrieved party has a prompt access to the compensatory remedy once he or she has made use of the accelerative remedies (see paragraph 50 above). As to the circumstances of the present case, the Court is of the view that in order to comply with Article 13 of the Convention the possibility to seek compensation should be open to the applicant no later than within the coming year, provided that he acts with due diligence in the remaining part of the proceedings and that no special difficulties, which would justify their prolongation, arise.

55. It follows that the applicant’s complaint under Article 6 about the excessive length of the proceedings must be declared inadmissible for being premature in accordance with Article 35 § 1 of the Convention. As to the applicant’s complaint under Article 13 that the remedies at his disposal for excessively lengthy proceedings were ineffective, it should be declared manifestly ill-founded under Article 35 § 3 of the Convention. The application should therefore be rejected under Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Santiago QuesadaCorneliu Bîrsan
RegistrarPresident

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