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FIFTH
SECTION
CASE OF GREBENC v. SLOVENIA
(Applications
nos. 22174/06 and 24341/06)
JUDGMENT
STRASBOURG
24
November 2011
This
judgment is final but it may be subject to editorial revision.
In the case of Grebenc v. Slovenia,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Ganna Yudkivska,
President,
Boštjan M. Zupančič,
Angelika
Nußberger, judges,
and Stephen
Phillips, Deputy
Section Registrar,
Having
deliberated in private on 3 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in two
applications (no. 22174/06 and no. 24341/06)
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 two
Slovenian nationals, Mr Marjan Grebenc and Mr BlaZ Grebenc (“the
applicants”), on 4 and 11 May 2006 respectively.
2. The
applicants were represented by Mr Z. Lipej, a lawyer practising in
Medvode. The Slovenian Government (“the
Government”) were represented by their Agent, Ms N. Pintar
Gosenca.
-
The applicants alleged under Article 6 § 1 of the Convention
that the length of the proceedings before the domestic courts to
which they were parties was excessive. In substance, they also
complained that there was no effective domestic remedy in respect of
the excessive length of the proceedings (Article 13 of the
Convention).
- On
19 February and 6 March 2009 respectively
the President of the Section decided to inform the
Government of the applications and to request them to submit
information under Rule 54 § 2 (a) of the Rules of Court. Further
to receipt of the information requested, on 30
September 2010, the President decided to invite the
Government to submit written observations on the admissibility and
merits of the case (Rule 54 § 2 (b) of the Rules). In accordance
with Protocol No. 14, the application was assigned to a committee of
three Judges.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The main proceedings
- On
20 April 2000 the applicants’ brother died in a car accident.
- On
2 April 2002 the applicants instituted civil proceedings against ZT
in the Ljubljana District Court seeking pecuniary and non-pecuniary
damage. The applicants also requested exemption from paying the court
fees.
- On
30 April 2002 the court asked the applicants to complete their
request for an exemption from obligation to pay the court fees. After
the request was completed, on 12 September 2002, the court upheld it
on 30 October 2002.
- The
first hearing was held on 17 March 2005.
- On
25 April 2005 the court held another hearing and decided to deliver a
written judgment. The judgment, rejecting the applicants’ claim
was served on the applicants on 1 June 2005.
- The
applicants appealed on 13 June 2005. On 30 November 2005 the
Ljubljana Higher Court upheld the applicants’ appeal in part
and remitted the case for re-examination.
- On
3 April 2006 the applicants withdrew the claim. On 19 May 2006 a
decision on termination of proceedings was issued.
B. The proceedings under the 2006 Act
- On
19 February and 6 March 2009 respectively, the respondent Government
were given notice of the applications. The Government were asked to
provide information as to whether section 25 of the 2006 Act applied
in respect of the present cases, which would enable the applicants to
avail themselves of domestic settlement proceedings before the State
Attorney’s Office.
- Subsequently,
on 6 May 2009, the Government submitted that section 25 of the 2006
Act was not applicable in the present cases since the applicants’
right to a trial within a reasonable time had not been infringed in
the impugned domestic proceedings. Therefore, the Government refused
to offer the applicants a settlement proposal under section 25 of the
2006 Act.
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 – “the 2006 Act”)
became operational on 1 January
2007.
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 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 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 court with jurisdiction
under this Act. The party may bring an action within six months of
receipt of 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.”
THE LAW
I. JOINDER
OF THE APPLICATIONS
- Pursuant
to Rule 42 § 1 of the Rules of Court, the Court decides to join
the applications, given their common factual and legal background.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND 13 OF THE
CONVENTION
- The
applicants complained that the proceedings to which they were parties
had been excessively long. They 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 applicants further complained that the remedies
available for excessively long 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. Article 6 § 1
1. Admissibility
- The
Government submitted that the applicants’ complaints under
Article 6 § 1 of the Convention were unsubstantiated and must
therefore be declared inadmissible. The Government stated that the
impugned proceedings had lasted only four years and sixteen days for
three levels of jurisdiction. In particular, the initial delay of
almost three years, which elapsed between the institution of the
proceedings and the first hearing, was compensated for by the speedy
examination of the applicants’ appeals before the
second-instance court.
- The
applicants contested that argument.
- The Court considers, in the light of the parties’
submissions, that this part of the application cannot be declared
manifestly ill-founded within the meaning of Article 35 § 3 (a)
of the Convention. It further notes that it is not inadmissible on
any other ground. It must therefore be declared admissible.
2. Merits
(a) Period to be taken into consideration
- The
period to be taken into consideration began on 2 April 2002, the date
on which the applicants instituted proceedings, and ended on 19 May
2006, when the first-instance court issued a decision on termination
of proceedings.
- The Court further observes, contrary to the
Government’s submissions (see paragraph 18 above), that only
two levels of jurisdiction were involved in the examination of the
case. It is true that the case was remitted for re-examination by the
second-instance court; however it was re examined by the same
first-instance court as the first time.
Accordingly, the proceedings lasted four years and two months for two
levels of jurisdiction and three instances.
(b) The reasonableness of the length of
proceedings
- 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
Court considers that the subject matter did not of itself present
special difficulties with regard to the facts or the law and finds
that the issue at stake in the proceedings could be regarded as of
importance for the applicants.
- As
to the applicants’ conduct, it does not appear that the
applicants caused any significant delays in the proceedings.
- With
respect to the conduct of the domestic courts, the Court notes in
particular that the first hearing was held on 17 March 2005, which
was almost three years after the date the applicants instituted the
proceedings (see paragraphs 6 and 8 above). It is true that it took
the second-instance court only five months to decide on the
applicants’ appeal, but the Court considers that the swiftness
of the appellate proceedings did not outweigh the initial delay, as a
result of which the length of the proceedings became excessive.
- In
the circumstances of the present case and in the light of the
criteria laid down in its case-law (see, mutatis mutandis,
Repas v. Slovenia, no. 10288/02, § 23, 6 April 2006;
Kotnik v. Slovenia, no. 17330/02, §§ 15 17;
Rogelj v. Slovenia, no. 21415/02, §§ 68-70) the
Court considers that length of the proceedings was excessive and
failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
B. Article 13
- In the Government’s view, the applicants had no
arguable claim for the purposes of Article 13 as their complaints
under Article 6 § 1 were unsubstantiated (see paragraph 18
above).
- The
Court recalls that Article 13 of the Convention guarantees an
“effective remedy before a national authority” to
everyone who claims that his rights and freedoms under the Convention
have been violated (see Klass and Others v. Germany, 6
September 1978, § 64, Series A no. 28). However, Article 13
requires a remedy in domestic law only in respect of an alleged
grievance which is an arguable one in terms of the Convention (see
Boyle and Rice v. the United Kingdom, 27 April 1988, §
52, Series A no. 131). Thus the effect of this provision is to
require the existence of an effective remedy to deal with the
substance of an “arguable complaint” and to grant
appropriate relief (see Kudła v. Poland [GC], no.
30210/96, § 157, ECHR 2000-XI).
- As
regards the present cases, the Court notes that it has found a
violation of Article 6 § 1 in respect of the length of
proceedings (see paragraph 27 above). Hence, the applicants had an
“arguable complaint” of a violation of Article 6 § 1
and should therefore have had an effective domestic remedy in that
respect. Accordingly, this part of the applications 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.
- The
Court further observes that the present applications are similar to
the case of Ribič v. Slovenia (no.20965/03, 19 October
2010), in which the Court found that that the legal remedies
at the applicant’s disposal were ineffective (ibid., §§
37-42).
- In
this connection, the Court finds that the Government have not
submitted any convincing arguments which would require it to
distinguish the present applications from the aforementioned case.
Accordingly, the Court considers that in the present cases there has
been a violation of Article 13 on account of the lack of a remedy
under domestic law whereby the applicants could have obtained a
ruling upholding their right to have their case heard within a
reasonable time, as set forth in Article 6 § 1.
III. 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
- The
applicants each claimed 8,345 euros (EUR) in respect of non-pecuniary
damage.
- The
Government considered the claim unjustified.
- The
Court considers that the applicants must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards each of them EUR
2,000 under that head.
B. Costs and expenses
- Each
of the applicants also claimed EUR 1,043 for the costs and expenses
incurred before the Court.
- The
Government did not comment on that claim.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of 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. In the present case, the Court observes
that the expenses allegedly incurred by the applicants were not
itemised or supported by any documentary evidence. In the absence of
any itemised bill it is difficult to assess the reasonableness and
necessity of the costs made by the applicants. In such circumstances
the Court dismisses the applicants’ claims under this head in
total.
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
- Joins the applications and declares
them 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 to each of the
applicants, within three months, EUR 2,000 (two thousand euros), plus
any tax that may be chargeable, in respect of non-pecuniary damage;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 applicants’
claim for just satisfaction.
Done in English, and notified in writing on 24 November 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Ganna Yudkivska
Deputy
Registrar President
