FIFTH SECTION
CASE OF
VUKADINOVIČ v. SLOVENIA
(Application no.
44100/09)
JUDGMENT
STRASBOURG
18 April 2013
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 Vukadinovič v. Slovenia,
The European Court of Human Rights (Fifth Section), sitting as
a Chamber composed of:
Mark Villiger, President,
Angelika Nußberger,
Boštjan M. Zupančič,
Ganna Yudkivska,
André Potocki,
Paul Lemmens,
Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 19 March 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an
application (no. 44100/09) 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, Ms Gorka Vukadinovič (“the
applicant”), on 11 August 2009.
The Slovenian Government (“the Government”) were
represented by their Agent.
On 18 October 2011 the
application was communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1955 and lives in Ljubljana.
A. First set of proceedings
On 6 August 1998 the applicant instituted a
labour dispute before the Ljubljana Labour and Social Court seeking the
annulment of the decisions of 9 June 1998 and 23 July 1998 whereby her contract
had been terminated due to her unauthorised absence from work.
On 16 February 2000 the first-instance court
delivered a judgment rejecting her request. She appealed.
On 20 June 2003 the Higher Labour and Social Court upheld the appeal and remitted the case for re-examination. The appeal court
found that the facts had not been properly established and that as a
consequence the application of the law was also questionable.
On 29 January 2004 the first-instance court rejected
the applicant’s claim. She appealed.
On 26 May 2006 the appeal was rejected. The
applicant lodged an appeal on points of law.
On 11 March 2008 the Supreme Court rejected the
appeal. The applicant lodged a constitutional appeal.
On 11 November 2008 the Constitutional Court
rejected the appeal.
B. Second set of proceedings
On 5 April 1995 the applicant instituted
proceedings before the Ljubljana Labour and Social Court seeking payment of
benefits.
On 9 June 2003 the first-instance court
delivered a judgment upholding her request in part. An appeal was lodged.
On 2 September 2004 the Ljubljana Higher Labour
and Social Court remitted the case for re-examination.
On 12 April 2006 the first-instance court
rendered a judgment. An appeal was lodged.
On 14 February 2007 the appeal was rejected and
on 15 December 2008 the appeal on points of law was rejected. The applicant
lodged a constitutional appeal
On 17 November 2009 the Constitutional Court
rejected the appeal as being lodged out of time.
II. RELEVANT DOMESTIC LAW
For relevant domestic law see Tomažič v.
Slovenia (no. 38350/02,
December 2007).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The applicant complained that the length of the
proceedings had been incompatible with the “reasonable time” requirement, laid
down in 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
As regards the first set of proceedings the
Government offered a settlement proposal made by reference to section 25 of the
2006 Act to the applicant in the form of a written statement pursuant to
section 15 of the said act acknowledging the violation of the right to a trial
in a reasonable time but did not offer any monetary compensation. The applicant
did not accept the offer.
The Court observes that the transitional
provision of the 2006 Act, namely section 25, provides for the procedure to be
followed in respect of applications where the violation of the “reasonable time”
requirement has already ceased to exist and which were lodged with the Court
before 1 January 2007. Notwithstanding the fact that the settlement
proposal was made by reference to section 25, as the proceedings to which the
applicant was a party continued before the Supreme Court after the new
legislation became operational, the above provision does not apply to the
applicant’s case.
23. As regards the application of
other provisions of the 2006 Act, in particular its section 19, the Court notes
that the proceedings in the present case had been finally resolved before the
2006 Act became operational and have subsequently continued before the Supreme
Court. Having regard to the 2006 Act as in force at the material time (see by
contrast, Žurej v. Slovenia, (dec.), no. 24342/04, § 17, 18 October 2007), the
applicant had no possibility to claim compensation for the delays incurred in
the proceedings (see mutatis mutandis, Tomažič v. Slovenia, no. 38350/02, §§ 41-45, 13 December 2007 and Lesjak v. Slovenia,
no. 33946/03, §§ 54-55, 21 July 2009).
The Court further notes that the part of the
application concerning the first set of proceedings is not manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Nor is
it inadmissible on any other grounds (see Korelc v. Slovenia, no.
28456/03, §§ 59-63, 12 May 2009). It must therefore be declared admissible.
As to the second set of proceedings the Court notes
that on 23 April 2010 the applicant lodged an application form, which was
included in the case-file no. 44100/09. The Court observes that the applicant’s
constitutional appeal lodged in the main proceedings was rejected as being
lodged out of time. The final decision to be taken into account for the
purposes of the applicant’s complaint regarding the undue length of proceedings
is therefore the Supreme Court’s decision of 15 December 2008. As the
application was lodged before the Court on 23 April 2010, the Court finds that
the length-of-proceedings complaint concerning the second set of proceedings
was introduced out of time and must be rejected in accordance with Article 35
§§ 1 and 4 of the Convention.
B. Merits
The period to be taken into consideration began
on 6 August 1998, the day the applicant instituted proceedings before Ljubljana
Labour and Social Court, and ended on 11 November 2008, the date of the Constitutional
Court’s decision. It therefore lasted ten years and five months at four 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).
Having regard to the circumstances of the case
and its case-law on the subject (see Bedi v. Slovenia, 24901/02, §§
18-20, 13 April 2006; and Žnidar v. Slovenia, 76434/01, §§ 21-23, 9
March 2006) 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.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE
CONVENTION
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).
In the present case the Court is not persuaded
that the applicant could have had access to the compensation claim and finds
the remedies of the 2006 Act ineffective (see paragraphs 22-23 above). As
regards the remedies available prior to the implementation of the 2006 Act, the
Court sees no reason to take a different approach from that taken in earlier
cases in which those remedies were considered ineffective (see Lukenda v.
Slovenia, no. 23032/02, 6 October 2005).
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 dealing
with her right to have her case heard within a reasonable time, as set forth in
Article 6 § 1.
III. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, as regards the first set of proceedings,
the applicant complained under Article 6 of the Convention and Article 1 of Protocol No. 12
that the proceedings were unfair and that she was discriminated against and
humiliated by the domestic courts because of her ethnic origins.
Having examined the above complaints, the Court
finds, in the light of all the materials in its possession, and in so far as
the matters complained of are within its competence, that they do not disclose
any appearance of a violation of the Articles relied on by the applicants. It
follows that the remaining complaints concerning the first set of proceedings
is manifestly ill-founded and must be rejected in accordance with Article 35 §§
3 (a) and 4 of the Convention.
As regards the second set of proceedings the
applicant complained under Articles 14 and 18 of the Convention that she was
discriminated against by domestic authorities.
The Court notes that the constitutional appeal
was lodged out of time and these complaints should therefore be rejected under
Article 35 § 1 and 4 of the Convention for non-exhaustion of domestic remedies.
IV. 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.”
The applicant did not submit a claim for just
satisfaction. Accordingly, the Court considers that there is no call to award her
any sum on that account.
FOR THESE REASONS, THE COURT
1. Declares by a majority the complaint
concerning the excessive length of the first set of proceedings and lack of an
effective remedy admissible;
2. Declares by a majority the complaint
concerning the excessive length of the second set of proceedings and lack of an
effective remedy inadmissible;
3. Declares unanimously the remainder of the
application inadmissible;
4. Holds by six votes to one that there has
been a violation of Article 6 § 1 and Article 13 of the Convention;
Done in English, and notified in writing on 18 April 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Mark
Villiger Registrar President
In accordance with Article 45 § 2 of the Convention and
Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Pejchal is
annexed to this judgment.
M.V.
C.W.
DISSENTING OPINION OF JUDGE PEJCHAL
I disagree with the majority’s finding of a
violation of the applicant’s right to a fair trial within “a reasonable time”
for the reasons given already in my separate opinion in the case Podbelšek
Bračič v. Slovenia, no. 42224/04.
