FIFTH SECTION
CASE OF
JAMA v. SLOVENIA
(Application no.
48163/08)
JUDGMENT
STRASBOURG
19 July 2012
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 Jama v. Slovenia,
The European Court of Human Rights (Fifth Section), sitting as
a Chamber composed of:
DeanSpielmann, President,
MarkVilliger,
KarelJungwiert,
Boštjan M.Zupančič,
AnnPower-Forde,
AngelikaNußberger,
AndréPotocki, judges,
andClaudia Westerdiek, Section Registrar,
Having deliberated in private on 26 June 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an
application (no. 48163/08) 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 Vinko Jama (“the applicant”), on 18
September 2008. In the course of the proceedings, the applicantdied. His daughter, Marija Preželj, declared that she wished to
pursue his application before the Court.
The applicant was
represented by Mr Z. Korenčan, a lawyer practising in Ljubljana. The
Slovenian Government (“the Government”) were represented by their Agent, Mrs T.
Mihelič Žitko, State Attorney.
On 7 April 2011the
application was communicatedto the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1914 and lived in Ljubljana. He died in 2008.
On 1 September 1970 a decision by which the
applicant’s house was expropriated in favour of the Municipality of Ljubljana became final.
In 1971, the municipality instituted
non-contentious court proceedings to determine the amount of compensation due
for the expropriated property. The applicant was a party to those proceedings.
By 1988, the first-instance court had ruled on
the matter four times due to three remittals of the case by the second-instance
court. The last judgment of the first-instance court, issued on 15 July 1988,
was quashed by the Ljubljana Higher Court on 2 March 1989. The latter found
that the facts had been insufficiently established. It ordered a re-examination
of the case by the first-instance court.
In 1989 the
proceedings were suspended pending the outcome of another set of proceedings in
which the applicant challenged the validity of the expropriation. After a
series of hearings cancelled at the request of the applicant, who maintained
that other related sets of proceedings were still pending, the court again
suspended the present set of proceedings. At a hearing on5 April 2004 the
applicant’s daughter, who was representing the applicant in the proceedings,
informed the court that the denationalisation proceedings no. UE 351-307/93
concerning the real estate, apparently comprising the house in question and the
land on which it was situated, were still ongoing. In September 2004 a hearing
was cancelled as the case was being transferred to another judge. The latter
took over the case in December 2005.
Hearings were held on 30 March and 20 April 2006.
At a hearing of 8 June 2006 the applicant submitted, inter alia,
that his claim for compensation with respect to the denationalisation of the
same property was still pending before the Administrative Court.
On 7 June 2006 the
applicant lodged an application with the Court, complaining of a violation of
his right to trial within a reasonable time. On 11 December 2007 the Court
declared the application inadmissible, finding that the applicant had failed to
exhaust the remedies available under the Act on the Protection of the Right to
a Trial without Undue Delay (Jama v. Slovenia (dec.), no.
29978/06).
In the meantime, at the hearing of 14 November
2007, the Ljubljana Local Court established that the proceedings concerning
compensation with respect to the denationalisation of the propertywere pending
before the Supreme Court. On 25 February 2008 the latter proceedings were
terminated with a decision by which the applicant received compensation comprising
state certificates for the nationalised land.His request for denationalisation
of the house situated on that land was rejected.
On 21 February
2008 the applicant lodged a supervisory appeal with the Ljubljana Local Court.
On 13 March 2008 the court informed the applicant that a hearing had beenscheduled
in his case.
At the hearing of 10 April
2008 the court established that the termination of the denationalisation
proceedings had made it possible to continue the present set of proceedings
concerning compensation for the expropriated house. The court appointed an
expert in construction to prepare a report on the matter.
On 19 September 2008 the court issued a decision
setting out the questions which the expert was requested to examine.
In the meantime,
on 29 July 2008, the applicant lodged a supervisory appeal asking the court to
inform him of the date on which the proceedings would be terminated. On 22
August 2008 the court explained to the applicant that an expert had been
appointed in order to prepare a report in the case.
On 1 September
2008 the applicant lodged a motion for a deadline.
On 19 October 2008 the
applicantdied at the age of 94. Subsequently, his daughter, Mrs M. Preželj,
expressed the wish to continue the proceedings before the Courtinitiated by him.
The expert, who had been hospitalised and had
undergone heart surgery in the meantime, submitted his report on 25 March 2010.
On 13 January 2011 the court
held a hearing and decided to appoint a new expert. At that hearing the court
also requested the applicant’s representative to inform the court of the
applicant’s successors. On 24 February 2011 the representative submitted
the requested documents. The inheritance decision of 7 May 2010 showed that the
applicant’s daughter, M. Preželj, had been named by the applicant as the only
person to manage his estate and inherit his property after hisdeath. She was
also appointed as an executor of the will and requested to take over all the applicant’s
pending proceedings concerning the denationalization of and compensation for
the expropriated house. Three remaining next-of-kin weregiven a certain share
in accordance with inheritance law. The applicant’s representative was now his
daughter’s representative in the proceedings.
On 6 June 2011 the applicant’s daughter’s representative lodged a supervisory appeal
complaining about the delays in the proceedings and pointing out that he had
received no reply to the motion for a deadline.
On 8 June 2011 the applicant’s daughter’s
representative submitted pleadings in which he argued that there had been no
reason for the other successors to enter the proceedings, as the power of
attorney given to him by the applicant had not been contested by any of them.
In addition, he argued that by virtue of the inheritance decision the applicant’s
daughter was authorised to take part in the pending proceedings concerning the
applicant’s property and to bring them to an end.
On 1 July 2011 the President of the Ljubljana Local Court sent the applicant’s daughter’s representative a report outlining the
major events that had occurred in the proceedings. It was noted in the report
that the judge in the case had instructed her assistant lawyer to appoint a new
expert.
On 9 September 2011 the President of the Ljubljana Higher Court sent a letter to the applicant’s daughter’s representative in which he
noted that the motion for a deadline of 1 September 2008 had been referred to
him only three days earlier. He further informed him that the motion had
beengrantedand that the first-instance judge had beeninstructed to treat this
case with priority and to providehim with a progress report every three months.
II. RELEVANT DOMESTIC LAW AND PRACTICE
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.
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 3 of the 2006 Act provides for two
remedies to expedite pending proceedings – a supervisory
appeal (nadzorstvena pritožba) and
a motion for a deadline (rokovni predlog)
– and, after the case has been finally resolved, for a claim for just
satisfaction in respect of damage sustained because of the undue delay (zahteva za pravično zadoščenje).
The “final resolution” of the case in principle refers to the final decision
against which no ordinary appeal lies; that would normally be the first, or if
an appeal has been lodged, a second-instance court’s decision.Moreover, the
amount which can be awarded for non-pecuniary damage sustained as a result of
the excessive length of the proceedings in each finally resolved case cannot
exceed 5,000 euros (EUR).
For a more detailed presentation of the relevant
domestic law see Žunič v. Slovenia, (dec.) no. 24342/04, §§ 16-26, 18 October 2007, and Žurej v. Slovenia (dec.), no. 10386/03, 16 march 2010.
THE LAW
I. AS TO THE LOCUS STANDI OF MRS M.
PREŽELJ
The Court notes at the
outset that the applicant died on 19 October 2008, after the lodging of his
application, while the case was pending before the court. His daughter, Mrs M
Preželj, who is also his heir, informed the Court that she wished to pursue his
application.
The Court points outthat
in various cases where applicants havedied in the course of the proceedings it
has taken into account the wishesof their heirs or close members of their familiesto
pursue the proceedings before the Court (see, for example, X. v. France, Series A no. 234-C, p. 89,
§ 26, and Kveder v. Slovenia, no. 55062/00, §§ 59-64, 9 March 2006). It
sees no reason to reach a different conclusion in the present case and
therefore accepts that the applicant’s daughter, Mrs M Preželj, can pursue the
application initially brought by him.
II. 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...”
A. Admissibility
The Government raised an objection, arguing that
the applicant had not exhausted the domestic remedies available to him. The
Court considers that the question whether the requirement that an applicant
must exhaust domestic remedies has been satisfied in the instant case is
closely linked to the complaint concerning the existence of an effective remedy
within the meaning of Article 13 of the Convention. It therefore considers that
this objection raised by the Government under Article 6 § 1 of the Convention
should be joined to the merits of the complaint under Article 13 of the
Convention. It further notes that this part of the application is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention and that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
The applicant’s
daughter, who after his death took over the proceedings, argued that none of
the facts concerning the applicant’s behaviour referred to by the Government had
contributedto the length of the proceedings in any significant way. She also
argued that the fact that there were other proceedings simultaneously pending
should not justify the delays, as there was nothing preventing the domestic
court fromdeciding on the compensationto be awarded for the expropriated house.
The Government argued that
the proceedings had been delayed until May 2004 at the applicant’s request. The
Government furthermore argued that in the non-contentious proceedingsthe court had
not been in a position to decide on the applicant’s claim until the proceedings
concerning the denationalisation of the same real-estate had beenterminated. As
soon asthe latter proceedings had beenterminated, the court, without receiving
any notification from the applicant, had scheduled a hearing for 10 April 2008.
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).
It notes that the period to be taken into consideration
began on 28 June 1994, when the Convention entered into force with respect
to Slovenia. As regards the end of the relevant period, the Court notes that
the applicant died on 19 October 2008. It is true that the proceedings
continued after his death, with Mrs M. Preželj stepping in to replace him.
However, the Court observes that Mrs M. Preželj has not introduced an
autonomous complaint concerning a potential violation of her right to trial
within a reasonable timewith respect to the part of the proceedings in which
she participated assuccessor toMr Vinko Jama, but merely successfully requested
to pursue the application lodged by the deceased (see paragraphs 27-28above,
and, mutatis mutandis, Sophia Andreou v. Turkey (just
satisfaction), no. 18360/91, §33, 22 June 2010). Under these circumstances,
the Court cannot have regard to the length of the proceeding after the
applicant’s demise. The period in question therefore ended on 19 October
2008. It thus lasted fourteen years and five months. During the period under
consideration the case was pending at one level of jurisdiction.
In assessing the reasonableness of the time that
elapsed after the Convention came into force with respect to Slovenia, account must be taken of the state of proceedings at the time.The Court notes in
this connection that at the relevant time the proceedings had already been
pending for twenty-three years. The applicant, who died thirty-sevenyears after
the start of the proceedings, didnot see his claim for damages for his
expropriated house determined by a final court decision.
The Court understands from the facts as
submitted by the parties that the main reason for the delay in the proceedings
during the period within the Court’s jurisdiction ratione temporis was
the fact that the domestic courtwas waiting for another set of proceedings
which concerned denationalisation of the same real-estate, apparently comprising
the land and the respective house, to be concluded. It is not the Court’s task
to assess whether the suspension of the impugned non-contentious court
proceedings was in fact necessary. It will limit itself to observing that this
obviously was the opinion of the domestic court (see paragraphs13 and 32 above)
as well as the Government and that the applicant did not object to it (see paragraph
8 above). Having said that, the Court notes that the Government have merely
relied on the fact that the delay in the proceedings in question was due to
their suspension. They have not shown that the denationalisation proceedings,
which were allegedly decisive for the continuation of the impugned
non-contentious proceedings and which seem to have lastedover at least fifteen
years, were conducted diligently by the courts. It reiteratesin this connection
that it is for the State to organise its judicial system in such a way as to
enable its courts to comply with the requirements of Article 6 § 1 (see, mutatis mutandis, R.M.D. v. Switzerland, 26 September 1997,
§ 54, Reports of Judgments and Decisions
1997-VI) and finds that no convincing arguments have been adduced by the
Government to show that the length of the proceedings complained of was
reasonable as required by Article 6 § 1 of the Convention.
There has accordingly been a breach of Article 6 § 1 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE
CONVENTION
The applicant complained under Article 13 of the
Convention that the remedies available to him failed to expedite the
proceedings and that the 2006 Act was ineffective in practice.
Article 13 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 Court finds that this complaint is not
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
grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ arguments
The applicant’s
daughter, who took over the proceedings,argued that all the available remedies,
namely,the acceleratory remedies, were exhausted in the present case. A
compensation claim, however, could not be lodged since there had been no final
decision. In her submission, the authorities hadnot wishedto terminate the
proceedings, since this would have led to her entitlement to claim compensation
for their undue length. Moreover, since there was a limit set for the
compensation which could be awarded on account of the undue delays, namely, a
maximum of EUR 5,000, after a certain point the authorities couldno longer
be penalised for their inactivity. The applicant’s daughter also maintained
that the applicant had actually been deprived of any remedy as the authorities
had delayed the proceedings for so long that he had died in the meantime.
The Government
argued that the applicant had effective remedies at his disposal. They
maintained that the claim for just satisfaction under the 2006 Act would be
available to the applicant through his successor after the termination of the
proceedings. They pointed out that the rule which allowed for compensation to
be claimed after acase had been finally resolved was part of the successful
system by which the State was combating the problem of unreasonable delays incourt
proceedings.
As regards the acceleratory remedies, the Government argued that there was no
obligation on the judge dealing with the applicant’s supervisory appeal to set
a deadline for the termination of the proceedings. As regards the applicant’s
motion for a deadline, the Government regretted that it had not been promptly
sent to the competent decision-making body, but also emphasized that this had
no bearingon the applicant’s access to a just satisfaction claim. Furthermore,
the Government argued that the applicant had failed to urge the local court to
send the motion when faced with no reply.
2. The Court’s assessment
(a) Relevant principles and previous findings of the
Court concerning effectiveness of remedies under the 2006 Act
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).
The Court further reiterates that remedies
available to a litigant at domestic level for raising a complaint about the
length of proceedings are “effective” within the meaning of Article 13 of the
Convention if they “[prevent] the alleged violation or its continuation, or
[provide] adequate redress for any violation that [has] already occurred” (see Kudła,
cited above,§ 158). Article 13 therefore offers an alternative: a remedy
is “effective” if it can be used either to expedite a decision by the courts
dealing with the case, or to provide the litigant with adequate redress for
delays that have already occurred (ibid., § 159). The same is necessarily true
of the concept of an “effective” remedy within the meaning of Article 35 § 1
(see Mifsud v. France (dec.) [GC], no. 57220/00, ECHR 2002-VIII).
In the case of Grzinčič v.
Slovenia (no. 26867/02, 3 May 2007), followed by the decision in Korenjak v. Slovenia ((dec.) no.
463/03,15 May 2007), the Court, basing its conclusions on an assessment
of the legislative provisions of the 2006 Act, found that the aggregate of
remedies provided for in cases of excessively long proceedings pending at first
and second instance was effective in the sense that the remedies were in
principle capable both of preventing the continuation of the alleged violation
of the right to a hearing without undue delay and of providing adequate redress
for any violation that has already occurred (Grzinčič,
cited above, § 98).
. In a subsequent case,Žunič v. Slovenia, (dec.) no. 24342/04, 18 October 2007), the Court
specified that it was indispensable that the proceedings, which hadalready lasted
along time, were finally resolved particularly promptly following the exhaustion
of the accelerative remedies (ibid. § 50). Moreover, it emphasized that the
national authorities should ensure that the aggrieved party had prompt access
to the compensatory remedy once he or she has made use of the accelerative
remedies. The Court declared the application in Žunič
inadmissible for being premature, finding that no more than six months had
elapsed since the applicant had exhausted the acceleratory remedies and that progress
had been made in dealing with his claim. It however instructed the authorities
to conclude the proceedings within no more than a year (ibid., §54).
(b) The present case
The Court observes that the applicant’s first
application,in which hecomplainedof the excessive length of the same set of
proceedings, was rejected as inadmissible by the Court in the decision of
11 December 2007.Noting that the proceedings had lasted, within the Court’s
jurisdictionratione temporis, more than thirteen years by then and acknowledging that in view of the applicant’s age
the proceedings were of undeniable importance to him, the Court found that the
applicant had failed to avail himself of a supervisory appeal, which had been
at his immediate disposal since the implementation of the 2006 Act. The Court noted
that if the applicant had availed himself of a supervisory appeal, he would
either have had the proceedings accelerated or would have been able to lodge a
motion for a deadline and, ultimately, a claim for just satisfaction.
Further to the above-mentioned decisionby the Courtthe
applicant lodged two supervisory appeals and a motion for a deadline. The Court
is struck by the fact that despite the use ofthe acceleratory remedies provided
by the 2006 Act, no significant progress was made in the case, which is still
pending at first instance. The Court notes that as a consequence of the system
provided by the 2006 Act, whereby access to a compensation claim is dependant
on the termination of the proceedings, the applicant and now his successor have
never been able to claim just satisfaction for the undue delay.
Lastly, the Court notes the applicant’s daughter’s
argument concerning the statutory limitation on the amount of compensation
which can be awarded for non-pecuniary damage sustained as a result of the
excessive length of proceedings, thatis,EUR 5,000. Indeed, in a situation where
the proceedings have lasted a very long time and have moreover ground to a haltdespite
the use of acceleratoryremedies, the compensatory remedymay not provide for a
sufficient redress due to the aforementioned limitation.
In view of the above, the Court finds that both
of the avenues referred to in its decision of 11 December 2007 have been shown
not to have been effective in the present case and that the applicant and now hissuccessor
have not been afforded prompt access to the compensation claim with respect to
the damagessustained due to the unreasonable length of the proceedings.Accordingly,the
Court concludes that there has been a violation of Article 13 of the Convention
on account of the lack of an effective remedy. In view of this conclustion, it
also rejects the Government’s objection concerning the 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.”
A. Damage
The applicant claimed EUR 100,000 in respect of
non-pecuniary damage.
The Government contested the claim.
The Court considers that the applicant must have
sustained non-pecuniary damage. Ruling on an equitable basis, it awards award
him EUR 12,000 under that head.
B. Costs and expenses
The applicant also claimed EUR 5,000 for the
costs and expenses incurred before the Court, consisting mostlyof lawyer’s
fees.
The Government contested the claim, submitting
that the applicant had failed to itemise and substantiate it.
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. The Court reiterates that it does not consider itself
bound by domestic scales and practices, although it may derive some assistance
from them (see, among many other authorities, Tolstoy Miloslavskyv. the United Kingdom,
13 July 1995, § 77, Series A no. 316-B, and Başkaya and Okçuoğlu
v. Turkey [GC], nos. 23536/94 and 24408/94, § 98, ECHR 1999-IV).
In the present case, however, the applicant did not justify his claim by
reference to the statutory domestic scale nor did he submit any supporting
documents or detailed information which would show that the costs claimed were
actually and necessarily incurred (see S.I. v. Slovenia, no.
45082/05, § 87, 13 October 2011).
The Court therefore rejects this claim.
C. Default interest
The Court considers it appropriate that the
default interest rate 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
1. Joinsto
the merits the Government’s objection concerning the exhaustion of domestic
remedies and rejects it;
2. Declaresthe application admissible;
3. Holdsthat there has been a violation of
Article 6 § 1 of the Convention;
4. Holds that there has been a violation of
Article 13 of the Convention;
5. 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 ConventionEUR 12,000
(twelve 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;
6. Dismissesthe remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified
in writing on 19 July 2012, pursuant to Rule77§§2 and3 of the Rules of Court.
Claudia Westerdiek Dean
Spielmann
Registrar President
