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European Court of Human Rights |
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You are here: BAILII >> Databases >> European Court of Human Rights >> Adrijano JESENICNIK v Slovenia - 30658/03 [2010] ECHR 87 (12 January 2010) URL: http://www.bailii.org/eu/cases/ECHR/2010/87.html Cite as: [2010] ECHR 87 |
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THIRD SECTION
DECISION
Application no.
30658/03
by Adrijano JESENIČNIK
against Slovenia
The European Court of Human Rights (Third Section), sitting on 12 January 2010 as a Chamber composed of:
Josep
Casadevall,
President,
Corneliu
Bîrsan,
Boštjan
M. Zupančič,
Alvina
Gyulumyan,
Egbert
Myjer,
Luis
López Guerra,
Ann
Power, judges,
and
Stanley Naismith, Deputy
Section Registrar,
Having regard to the above application lodged on 12 September 2003,
Having regard to the observations submitted by the respondent Government,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Adrijano Jeseničnik, is a Slovenian national who was born in 1973 and lives in Nova Gorica. He was represented before the Court by Mr B. Verstovšek, a lawyer practising in Celje. The Slovenian Government (“the Government”) were represented by their Agent, Mr Lucijan Bembič, State Attorney-General.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. On 16 October 1997 the applicant was injured at his workplace.
2. On 29 December 1999 the applicant instituted civil proceedings against the insurance company before the Celje District Court (OkroZno sodišče v Celju) seeking damages for the injuries sustained.
3. Between 19 June 2001 and 18 March 2002 the applicant lodged three preliminary written submissions and/or requests for a hearing to be set.
4. The first hearing was held on 2 October 2002.
5. On 9 April 2003 the Celje District Court gave a judgment. Both parties appealed.
6. On 15 June 2005 the Celje Higher Court (Višje sodišče v Celju) gave a judgment, allowing the insurance company’s appeal in whole and the applicant’s appeal in part. The remainder was rejected. A part of the claim and the question of costs of proceedings were remitted for re-examination.
7. On 17 August 2005 the applicant lodged an appeal on points of law with the Supreme Court against the rejected part of the appeal.
8. On 27 February 2007 the applicant lodged a supervisory appeal with the Celje District Court under the Act on the Protection of the Right to a Trial without Undue Delay (“the 2006 Act”).
9. On 23 March 2007 the President of the Celje District Court dismissed the supervisory appeal on procedural grounds, explaining that the proceedings before the first-instance court had been terminated on 30 April 2003.
10. On 4 October 2007 the Supreme Court gave a judgment dismissing the appeal on points of law.
11. On 17 January 2008 the Celje District Court gave a judgment concerning the remainder of the claim and the question of costs (see paragraph 6 above). The applicant appealed.
12. The proceedings are pending before the Celje Higher Court.
B. Relevant domestic law
13. A description of the relevant domestic law can be found in the Lesjak v. Slovenia judgment (no. 33946/03, 21 July 2009).
COMPLAINTS
14. The applicant complained under Article 6 § 1 of the Convention that his rights had been infringed by the excessive length of the domestic proceedings. He also complained under Article 13 of the Convention of a lack of an effective remedy in respect of the excessive length of the proceedings.
THE LAW
15. The applicant complained under Article 6 § 1 of the Convention about the length of the civil proceedings.
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
16. He further complained that the remedies available in Slovenia in length-of-proceedings cases were ineffective.
Article 13 of the Convention provides:
“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.”
17. On 10 July 2008 the respondent Government were given notice of the application under Rule 54 § 2(b) of the Rules of Court. The Government argued that the applicant had failed to exhaust available domestic remedies. According to the Government, the applicant should have first availed himself of the acceleratory remedies in the proceedings before the Supreme Court and subsequently used the acceleratory remedies for the still-pending part of the proceedings at second instance, thus securing his right to lodge a “just satisfaction claim”. The Government submitted that the application should be declared inadmissible.
18. The applicant did not file submissions.
19. The Court observes that on 1 January 2007, the day the 2006 Act became operational, the part of the applicant’s case which had been decided by the first-instance court was pending before the Supreme Court. The proceedings before the Supreme Court lasted two years and one month (from 17 August 2005 to 4 October 2007), during which the proceedings before the first-instance court were effectively stayed. The proceedings resumed on 4 January 2008 at first instance. A first-instance judgment was given on 17 January 2008 and, following an appeal, the proceedings are pending at second instance.
20. In view of the above, the Court notes that the proceedings have been pending for nearly ten years overall, which is undoubtedly excessive. However, the Court notes that the proceedings are currently pending before the second-instance court and that the applicant has effective remedies at his disposal (see paragraphs 24 and 25 below).
1. Proceedings before the Supreme Court (Articles 6 and 13)
21. The proceedings before the Supreme Court lasted two years and one month and there had been no significant delays on the part of the State. In view of the circumstances of the case, two years before one level of jurisdiction cannot be considered as unreasonable (see Nezirovič v. Slovenia, no. 16400/06, 18 November 2008, § 42).
22. As to the effectiveness of remedies before the Supreme Court, the Court notes that despite its findings in the Lesjak v. Slovenia judgment (no. 33946/03, 21 July 2009, § 55), where the acceleratory remedies before the Supreme Court were found to be ineffective, this can be considered of no relevance for the present case. The length of proceedings before the Supreme Court lasted only two years and one month (see Tričković v. Slovenia, no. 39914/98, 12 June 2001) and therefore there is no arguable claim under Article 13 of the Convention.
23. It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 § 3 of the Convention.
2. Second-instance proceedings (Articles 6 and 13)
24. As for the length of the proceedings before the second-instance court, the Court observes that they are pending and that the applicant has at his disposal both acceleratory remedies (supervisory appeal and a motion for a deadline) and can therefore still bring a claim for just satisfaction and obtain compensation for the whole duration of the proceedings. The Court also notes that the applicant did lodge a supervisory appeal, but has failed to properly exhaust this remedy, since the supervisory appeal was lodged before the first-instance court, while the proceedings were pending before the Supreme Court (see paragraph 9 above). Considering that the proceedings are pending at second instance and that the applicant did not make proper use of the acceleratory remedies, the opportunity is still open for the applicant to effectively avail himself of the remedies provided under the 2006 Act. This complaint should therefore be rejected for non-exhaustion of domestic remedies (see Grzinčič v. Slovenia, no. 26867/02, 3 May 2007; Zunič v. Slovenia, no. 24342/04, 18 October 2007; and Nezirovič v. Slovenia, no. 16400/06, 18 November 2008).
25. The Court has already found that the 2006 Act does afford the applicant an effective remedy in respect of his complaint about the length of proceedings before the first- and second-instance courts (see Grzinčič v. Slovenia, no. 26867/02, 3 May 2007). That finding is also valid in the context of his complaint under Article 13 of the Convention. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 § 3 of the Convention.
26. The application must therefore be rejected under Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Stanley Naismith Josep Casadevall
Deputy Registrar President