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THIRD
SECTION
CASE OF GERŠAK v. SLOVENIA
(Application
no. 35475/02)
JUDGMENT
STRASBOURG
27 May
2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Geršak v. Slovenia,
The
European Court of Human Rights (Third Section), sitting 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, Section
Registrar,
Having
deliberated in private on 6 May 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 35475/02) against the
Republic of Slovenia lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a Slovenian national, Mr David
Geršak (“the applicant”), on 19 September 2002.
- The
applicant was represented by Verstovšek lawyers.
The Slovenian Government (“the Government”)
were represented by their Agent, Mr L. Bembič, State
Attorney-General.
- The
applicant alleged under Article 6 § 1 of the Convention that the
length of the proceedings before the domestic courts to which he was
a party was excessive. In substance, he also complained about the
lack of an effective domestic remedy in respect of the excessive
length of the proceedings (Article 13 of the Convention).
- On
9 June 2006 the Court
decided to communicate the complaints concerning the length of the
proceedings and the lack of remedies in that respect to the
Government. Applying Article 29 § 3 of the Convention, it
decided to examine the merits of the application at the same time as
its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1973 and lives in Velenje.
- On
13 August 1996 the applicant was injured in a car accident. The
person responsible for the accident had taken out insurance with the
insurance company ZT.
- On
29 December 1997 the applicant instituted civil proceedings against
ZT in the Celje District Court (OkroZno sodišče v
Celju) seeking damages in the amount of 14,330,442 Slovenian
tolars (SIT) (approximately 62,000 euros) for the injuries sustained.
- Between
1 July 1998 and 18 April 2000 the applicant made seven requests that
a date be set for a hearing.
- Between
20 October 1999 and 23 September 2002 he lodged eleven preliminary
written submissions and/or adduced evidence.
- On
21 September 2000 the court appointed four medical experts to prepare
expert reports in the case.
- Three
hearings were held between 21 September 2000 and 17 October
2002.
- On
17 October 2002 the court decided to deliver a written judgment. The
judgment, upholding the applicant's claim in part, was served on the
applicant on 18 November 2002.
- On
28 November 2002 the applicant appealed to the Celje Higher Court
(Višje sodišče v Celju) and requested that
the first-instance court to correct its judgment.
- On
8 July 2003 the first-instance court corrected its judgment as
regards legal costs.
- On
23 December 2004 the Celje Higher Court delivered a judgment allowing
the applicant's appeal in part and amending the first-instance
court's judgment accordingly.
The
judgment was served on the applicant on 10 January 2005.
- On
19 January 2005 the applicant lodged an appeal on points of law with
the Supreme Court (Vrhovno sodišče).
On 7
December 2006 the court delivered a judgment. It partly upheld the
applicant's appeal on points of law and changed the second-instance
court's judgment accordingly. The Supreme Court's judgment was served
on the applicant on 18 January 2007.
II. RELEVANT DOMESTIC LAW
- 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) was enacted on 1 January 2007.
Under sections 1 and 2 of the Act, the right to a trial within a
reasonable time is guaranteed for a party to court proceedings, a
participant under the Act governing non-contentious proceedings and
an injured party in criminal proceedings.
- Section
25 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 a violation of the right to a
trial without undue delay has already ceased and a 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 of 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 the State Attorney's
Office and the parties fail to negotiate an agreement within four
months of the date on which the party made 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 has not been 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.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE
CONVENTION
- The
applicant complained of excessive length of proceedings. He relied on
Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- In
substance, the applicant further complained that the remedies
available for excessive legal proceedings in Slovenia were
ineffective.
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.”
A. Admissibility
- The
Government pleaded non-exhaustion of domestic remedies, in particular
since the enactment of the Act on the Protection of the Right to a
Trial without undue Delay (the “2006 Act”) on 1 January
2007.
- The
applicant contested that argument, claiming that the remedies
available were not effective.
- The
Court notes that section 25 of the 2006 Act explicitly refers to
proceedings before international courts and provides for certain
remedies in cases of domestic proceedings which had terminated before
1 January 2007. However, the Court found in the Grzinčič
judgment (cited below) that the conditions laid down in that
section had not been fulfilled as regards applications concerning
terminated proceedings which had been notified to the Slovenian
Government before 1 January 2007, such as the present one (see
Grzinčič v. Slovenia, no. 26867/02, § 67, 3 May
2007).
- The
Court therefore notes that the present application, which concerns
proceedings that terminated with the Supreme Court's judgment of 7
December 2006, is similar to that examined in the relevant part of
the Grzinčič judgment (cited above, §
68), in which the Court dismissed the Government's objection
of non-exhaustion of domestic remedies because it found that the
legal remedies at the applicant's disposal were ineffective.
- The
Court finds that the Government have not submitted any convincing
arguments which would require the Court to depart from its
established case-law.
- The
Court further notes that the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. Nor is it inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Article 6 § 1
- The
period to be taken into consideration began on 29 December 1997,
the day the applicant instituted proceedings with the Celje District
Court, and ended on 18 January 2007, the day the Supreme Court
decision was served on the applicant. It therefore lasted about nine
years for three levels of jurisdiction.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
Government argued that the length of the proceedings was due to the
complexity of the case and due to the fact that several expert
opinions had been requested by the court. They further maintained
that neither the courts nor the applicant could have been blamed for
the length of the proceedings.
- Although
expert opinions were requested in the case, the Court notes that it
does not appear from the case-file that the proceedings were
procedurally or factually particularly complex (see, for example,
Novina v. Slovenia, no. 6855/02, 26 October 2006).
Moreover, for example, the appointment of the experts does not
explain why more than 2 years and 8 months elapsed between
the day the applicant lodged his claim and the day the first hearing
was held (see paragraphs 7, 10 and 11, above).
- Having
examined all the material submitted to it, and having regard to its
case-law on the subject, the Court considers that in the instant case
the length of the proceedings was excessive and failed to meet the
“reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
2. Article 13
- The
Court reiterates that Article 13 guarantees an effective remedy
before a national authority for an alleged breach of the requirement
under Article 6 § 1 to hear a case within a reasonable time (see
Kudła v. Poland [GC], no. 30210/96, § 156, ECHR
2000-XI). It notes that the objections and arguments put forward by
the Government have been rejected in earlier cases (see Grzinčič,
cited above) and sees no reason to reach a different conclusion in
the present case.
- Accordingly,
the Court considers that in the present case there has been a
violation of Article 13 on account of the lack of a remedy under
domestic law whereby the applicant could have obtained a ruling
upholding his right to have his case heard within a reasonable time,
as set forth in Article 6 § 1.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41
of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- In
his application form, the applicant claimed 20,000 euros (EUR) in
respect of non-pecuniary damage. After having been requested by the
Court to submit his claim for just satisfaction, the applicant stated
in his observations that he maintained his initial claim.
- The
Government commented on the applicant's claim. They argued that it
was unsubstantiated and, in alternative, excessive.
- The
Court considers that the applicant must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards him EUR 4,800
under that head.
B. Costs and expenses
- The
applicant also claimed approximately EUR 1,216 for the costs and
expenses incurred before the Court, in particular for the lawyer's
fees which were specified in the documents submitted to the Court by
his lawyer.
- The
Government argued that the claim was too high.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and are reasonable as to
quantum. The Court also notes that the applicant's lawyers, who also
represented the applicant in Lukenda (cited above), lodged
hundreds of applications which, apart from the facts, are essentially
the same as this one. Accordingly, in the present case, regard being
had to the information in its possession and the above criteria, the
Court considers it reasonable to award the applicant the sum of EUR
1,000 for the proceedings before the Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
13 of the Convention;
- Holds
(a) that the respondent State is to
pay the applicant, within three months from the date on which the
judgment becomes final according to Article 44 § 2
of the Convention, the following amounts:
(i) EUR 4,800 (four thousand
eight hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,000 (one thousand
euros), plus any tax that may be chargeable to
the applicant, in respect of costs and expenses;
(b) that from the expiry of the
above-mentioned three months until settlement simple interest shall
be payable on the above amounts at a rate equal to the marginal
lending rate of the European Central Bank during the default period
plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 27 May 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
