Information Note on the Court’s case-law No. 101
October 2007
Žunič v. Slovenia - 24342/04
Decision 18.10.2007 [Section III]
Article 35
Article 35-1
Exhaustion of domestic remedies
Effective domestic remedy
Effectiveness of a new compensatory remedy concerning length of judicial proceedings: inadmissible
In 2000 the applicant instituted civil proceedings against an insurance company. The proceedings are currently pending before the first-instance court. The applicant’s supervisory appeal and his motion for a deadline (accelerative remedies provided for by the Protection of the Right to a Trial without Undue Delay Act – “the 2006 Act”) were dismissed on the grounds that the delays had resulted from systemic problems, and through no fault of the sitting judge.
Inadmissible: Article 13, as interpreted in the Court’s case-law, offered an alterative: a remedy was “effective” if it could be used either to expedite the proceedings or to provide adequate redress, such as just satisfaction, for delays that had already occurred. As regards the former alternative, the accelerative remedies, in the present case, had so far failed to be effective. As regards the remaining alternative, the 2006 Act provided a right to lodge a claim for just satisfaction if two cumulative conditions were satisfied. Firstly, the claimant had to have exhausted properly the accelerative remedies and, secondly, the proceedings had to have been finally resolved. The Court appreciated that the second condition could have the legitimate aim of simplifying the procedure by, inter alia, preventing the repeated filing of just satisfaction claims while the proceedings were still pending. The Court also understood that the compensation for excessive delay should reflect the circumstances and the overall length of the proceedings up to their final resolution. However, because of this condition, persons who believed that they had suffered a violation of their right to a trial within a reasonable time might 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 was fixed at EUR 5,000, the Court found it indispensable for the proceedings, which had already been long, to be finally resolved particularly promptly following the exhaustion of the accelerative remedies. Indeed, it could not be ruled out that the question of reasonably prompt access to a just satisfaction claim would affect the conclusion on whether this remedy, alone or in combination with the accelerative remedies, was effective in respect of delays which had already occurred. The respondent State had already adopted several measures in the framework of the Lukenda Project to address the structural problem of delays in judicial proceedings. The measures aimed at reducing the backlog, such as the employment of additional judges, had also been implemented at the court dealing with the applicant’s case. Since April 2007 two hearings had been scheduled in the applicant’s case, whereas none had been previously. Moreover, the applicant could use the accelerative remedies again if new reasons for a delay arose. Having regard to the State’s margin of appreciation and the subsidiarity principle 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 been made in dealing with his claim, the Court was inclined to conclude that the applicant should soon be able to make a claim for just satisfaction, which in principle appeared to be an effective remedy. Moreover, there was 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 complaint under Article 6 had thus to be regarded as premature. The Court’s position might however be subject to review in the future. The Court was of the view that in order to comply with Article 13 of the Convention the possibility of seeking compensation should be open to the applicant no later than within the coming year, provided that he acted with due diligence in the remaining part of the proceedings and that no special difficulties, which would justify their prolongation, arose: manifestly ill-founded.
See also Grzinčič v. Slovenia, n° 26867/02, judgment 3.5.2007, in Information Note n° 97.
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