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THIRD
SECTION
CASE OF ŠAKANOVIČ v. SLOVENIA
(Application
no. 32989/02)
JUDGMENT
STRASBOURG
13
December 2007
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 Šakanovič v. Slovenia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr C. Bîrsan,
President,
Mr B.M. Zupančič,
Mrs E.
Fura-Sandström,
Mr E. Myjer,
Mr David Thór
Björgvinsson,
Mrs I. Ziemele,
Mrs I. Berro-Lefèvre,
judges,
and Mr S. Naismith, Deputy Section Registrar,
Having
deliberated in private on 22 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 32989/02)
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
Bosnia and Herzegovina national, Mrs Minka Šakanovič
(“the applicant”), on 11 January 2001.
- 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 she was
a party was excessive. In substance, she 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
28 September 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.
- In
accordance with Article 36 § 1 of the Convention and Rule 44 of
the Rules of Court, the Registrar informed the Government of Bosnia
and Herzegovina of their right to submit
written comments. They did not indicate that they wished to exercise
their right.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1956 and lives in Jesenice, Slovenia.
- On
18 February 1995 the applicant's alleged common law partner
(izvenzakonski partner),
S.A.K., died.
- On
21 March 1995 the Jesenice Local Court (Okrajno sodišče
na Jesenicah) received the coroner's certificate (smrtovnica).
S.A.K. was survived by three daughters – one of them, K.Š.,
was also a daughter of the applicant.
- On
12 June 1995 the applicant was given notice of the court's intention
to hold a hearing and an invitation to attend it. The hearing took
place on 28 June 1995. It appears from the records of the hearing
that the applicant participated in the proceedings on her own behalf
– as the potential heir – and also represented her
juvenile daughter.
- The
second hearing fixed for 21 January 1998 was cancelled at the
applicant's request.
- At
the third hearing, held on 28 February 1998, the court stayed the
inheritance proceedings and instructed the applicant to institute
separate civil proceedings with a view to determining the legal
nature of her relationship with S.A.K.
- Consequently,
on 9 March 1998 the applicant lodged a claim with the Jesenice Local
Court, which, due to lack of jurisdiction, referred the case to the
competent Kranj District Court (OkroZno sodišče v
Kranju).
The
first hearing, scheduled for 13 September 1999, was called
off at the request of the applicant. The Kranj District Court
afterwards held three hearings between 10 February 2000 and
5 December 2000.
Between
13 September 1999 and 3 November 2000 the applicant lodged five
preliminary written submissions.
At
the hearing on 5 December 2000 the court issued a judgement rejecting
the applicant's claim. The court found that she could not be
considered S.A.K.'s common law partner at the time of his death and
thus had no inheritance rights in respect of his estate.
The
applicant appealed to the Ljubljana Higher Court (Višje
sodišče v Ljubljani) in January 2001. On 6 March 2002
the court dismissed her appeal. The Ljubljana Higher Court's judgment
was served on the applicant on an unspecifed day in March 2002.
- Subsequently,
the inheritance proceedings continued before the Jesenice Local
Court. The latter issued a decree of distribution (sklep o
dedovanju) on 12 February 2003. Relying on the judgments of
5 December 2000 and 6 March 2002 (paragraph 12 above),
the court did not include the applicant as one of S.A.K.'s heirs. The
decision was served on the parties to the proceedings on 28 February
2003.
II. RELEVANT DOMESTIC LAW
1. The Inheritance Act
- Section
164 of the Inheritance Act (Official Gazette SRS, no. 15-645/1976,
with amendments, – Zakon o dedovanju) provides that
inheritance proceedings should begin ex officio as soon as the
court learns that somebody has died or has been pronounced dead. In
inheritance proceedings the court should establish the heirs, the
property which is to be included in the deceased's estate and the
rights of heirs, beneficiaries and others (section 162).
- According
to section 199, after receiving the coroner's certificate (a document
concerning personal data about the deceased and his estate and
information relevant for the inheritance, normally prepared by a
registrar – matičar), the court examines whether it
is competent to hold a hearing and, if not, sends the case to the
competent court. According to sections 203 and 205, the court must
hold a hearing if the deceased owned immovable property. It is the
court's obligation to invite those who might be affected to the
hearing (section 205).
2. The Act on the Protection of the Right to a Trial
without undue Delay
- 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) has been implemented since 1
January 2007. Under its sections 1 and 2, 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 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 after 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 party fail to negotiate an agreement within four
months after the date on which the party filed its proposal, the
party may bring an action before the competent court under this Act.
The party may bring an action within six months after receiving 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. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE
CONVENTION
- The
applicant complained about the excessive length of the proceedings.
She 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 length of 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 after the implementation of the Act on the
Protection of the Right to a Trial without undue Delay (the “2006
Act”) from 1 January 2007.
- The applicant did not comment on that issue.
- 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
that the conditions laid down in that section were not 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 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
(a) Applicability
- It
was not disputed between the parties that, in principle, Article 6
applies to inheritance proceedings in Slovenia. The Court, having in
mind its case-law on the subject (see, Gluhar v. Slovenia,
no. 14852/03, 21 December 2006, mutatis mutandis,
Siegel v. France, no. 36350/97, §§ 33-38,
ECHR 2000 XII and Osinger v. Austria, no. 54645/00,
24 March 2005, and), sees no reason to disagree. As regards
the applicability of Article 6 to particular stages of the
proceedings in the present case, the Court considers it appropriate
to deal with this matter in the context of the period to be taken
into consideration (see paragraphs 32-38 below).
(b) Compliance with Article 6 § 1
(i) The parties' submissions
- The
Government submitted that, according to domestic legislation, a court
should initiate inherence proceedings ex officio immediately
after receiving the information about a person's death. On the basis
of this information, the case is entered into the court records.
According to the Government, this represents the commencement of
inheritance proceedings. The Government further submitted that
before a hearing is held, the competent court may take the necessary
preparatory measures, such as an appraisal of the deceased's estate.
- The
Government argued that this stage of inheritance proceedings, i.e.
before the court invites potential heirs to a hearing, is conducted
by a court independently from the parties to the proceedings.
Therefore, it does not affect their situation and should not be taken
into account in calculating the relevant period. In their opinion,
the relevant period in the present case should start running only on
12 June 1995, which is the day the applicant was invited to a
hearing.
- The
Government averred that the proceedings ended on 28 February 2003
when the decree of distribution was served on the parties.
- As
regards the “reasonableness” of the length of the
proceedings, the Government submitted that the applicant had
contributed significantly to the delay in the proceedings.
- The
applicant did not comment on the Government's observations.
(ii) The Court's assessment
- The
Court recalls that Article 6 § 1 of the Convention
requires that all stages of legal proceedings for the “determination
of ... civil rights and obligations”, not excluding stages
subsequent to judgment on the merits, be resolved within a reasonable
time (see Robins v. the United Kingdom, judgment of
23 September 1997, Reports of Judgments and Decisions 1997-V, §
28).
- As
regards the beginning of the period to be taken into consideration in
determining the length of the proceedings, the Court observes that
under section 164 of the Inheritance Act (see paragraph 14 above) a
competent court should always start inheritance proceedings ex
officio as soon as it is informed of a person's death. That
moment, as the Government confirmed, represents the commencement of
inheritance proceedings (see paragraph 27 above).
- The
Government, however, argued that the period which should be taken
into account for calculating the length of proceedings had started
only on the day the applicant was first invited to a hearing.
- The
Court sees no reason why in the present case the relevant period
should start running only at that point. As in other types of
judicial proceedings concerning the determination of civil rights and
obligations, the fact that certain stages are exclusively controlled
by the domestic court does not exclude them from the protection of
Article 6. To hold otherwise in the present
case would entail that the courts dealing with inheritance
proceedings could delay the first hearing and, as a result, the
determination of the parties' inheritance rights, without being
subject to the “reasonable time” requirement.
- In
view of the above, and since it is not disputed that the applicant
had been aware of S.A.K.'s death and of the issue of inheritance
being pending before the domestic court, the Court considers that the
relevant period started running at the latest on 21 March 1995, when
the Jesenice Local Court received the coroner's certificate (see
paragraph 8 above).
- As
regards the end of the relevant period, the Court notes that it was
established by the judgment of 5 December 2000, which was upheld by
the Ljubljana Higher Court on 6 March 2002, that the applicant could
not be considered S.A.K.'s heir and thus had no inheritance rights
over his estate. It transpires from the case-file that since then the
applicant has not been involved in the inheritance proceedings. Even
if it might be that the applicant continued to represent her daughter
in the proceedings, the Court must conclude, in the absence of any
convincing argument to the contrary, that the inheritance proceedings
further to the Ljubljana Higher Court's judgment of 6 March 2002
did not involve a determination of the applicant's civil rights. The
period to be taken into account therefore ended in March 2002
(paragraph 12 above).
- Regard
being had to the above, the relevant period lasted about seven years
and involved two sets of proceedings: the inheritance proceedings and
the related set of civil proceedings.
- 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
Court considers that the case was not particularly complex to
determine and, although two hearings were adjourned at the request of
the applicant (see paragraphs 10 and 12 above), it cannot be said
that her behaviour contributed in a significant way to the length of
the proceedings. The Court observes that significant periods of
inactivity occurred in the course of the proceedings; in particular,
between 28 June 1995 and 21 January 1998 (see paragraphs 9 and
10 above) and between 9 March 1998 and 13 September
1999 (see paragraph 12 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 her right to have her 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
- The
applicant claimed approximately 30,000 euros (EUR) in respect of
non-pecuniary damage and cost and expenses.
- The
Government submitted that the claim was exaggerated.
- The
Court considers that the applicant must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards her EUR 2,200 under
that head.
B. Costs and expenses
- The
applicant also claimed, under the above stated amount (paragraph 45
above), the reimbursement of her costs and expenses without further
specifying the claim.
- The
Government contested the claim.
- Under
the Court's case-law, an applicant is entitled to the reimbursement
of her 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, regard being had to the
information in its possession and the above criteria, the Court
rejects the claim for costs and expenses insofar it might relate to
the domestic proceedings but considers that the applicant, who was
not represented by a lawyer, must have had to bear expenses in
connection with the proceedings before the Court. The Court considers
it reasonable to award her the sum of EUR 150 in that connection
(see, for example, Bauer v. Slovenia, no. 75402/01,
§ 26, 9 March 2006, and Vidic v. Slovenia,
no. 54836/00, § 31, 3 August 2006).
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 in accordance with
Article 44 § 2 of the Convention, EUR 2,200 (two
thousand two hundred euros) in respect of non-pecuniary damage and
EUR 150 (one hundred fifty euros) in respect of costs and expenses,
plus any tax that may be chargeable;
(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 13 December 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Corneliu Bîrsan
Deputy
Registrar President
