FIFTH SECTION
CASE OF
ZABOVNIK v. SLOVENIA
(Applications nos.
17596/06 and 17608/06)
JUDGMENT
STRASBOURG
18 October 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 Zabovnik v. Slovenia,
The European Court of Human Rights (Fifth Section), sitting as
a Chamber composed of:
Dean Spielmann, President,
Mark Villiger,
Karel Jungwiert,
Boštjan M. Zupančič,
Ann Power-Forde,
Angelika Nußberger,
André Potocki, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 18 September 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in two
applications (nos. 17596/06 and 17608/06) 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, Ms Helena Zabovnik and Mr Božidar
Zabovnik (“the applicants”), on 23 March 2006.
The applicants were represented
by Mr Z. Lipej, a lawyer practising in Medvode. The Slovenian Government
(“the Government”) were represented by their Agent.
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. They also
complained under Article 13 of the Convention of the lack of an effective
domestic remedy in this respect.
On 12 May 2010 the applications
were communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicants were born in 1946 and 1940
respectively. They are husband and wife and live in Velenje.
On 26 January 2001 the applicants instituted
proceedings before the Ljubljana District Court seeking compensation for
damages sustained in a car accident.
Between 6 May 2003 and 5 May 2005 three hearings
were held and one expert appointed. At the last hearing the first-instance
court rendered a judgment rejecting the applicants’ request. They appealed.
On 15 February 2006 the Ljubljana Higher Court
rejected the appeal. The applicants lodged an appeal on points of law.
On 6 November 2008 the Supreme Court rendered a
decision and remitted the case for re-examination before the first-instance.
The decision was served on the applicants’ representative on 5 December 2008.
On 19 December 2008 a notice of the forthcoming
hearing was sent to the applicants.
The hearing was held on 2 February 2009 and the
first-instance court rendered a judgment on the same day. The judgment was
served on the applicants on 13 March 2009.
II. RELEVANT DOMESTIC LAW
For relevant domestic law see Nezirović
v. Slovenia ((dec.) no. 16400/06, 25 November 2008).
THE LAW
I. JOINDER
Having regard to the fact that the application
concern the same set of proceedings, the Court finds it appropriate to join
them.
II. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF
THE CONVENTION
The applicants complained that the proceedings
to which they were a party 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. Admissibility
The Government argued non-exhaustion of domestic
remedies.
The applicants contested those arguments.
The Court observes that on 1 January 2007, when
the Act on the Protection of the Right to a Trial
without Undue Delay (“the 2006 Act”) became operational, the proceedings were
pending before the Supreme Court. The Supreme Court issued a decision on 6
November 2008 and remitted the case for re-examination before the
first-instance court. The decision was served on the applicants on 15 November
2008. The proceedings terminated on 2 February 2009, when the first-instance
court rendered a judgment.
. The
Court notes that unlike in the case of Lesjak Robert v. Slovenia (no.
33946/03, 21 October 2009) the proceedings in the present case were finally
resolved on 2 February 2009. After that, the applicants could have claimed
compensation for the overall length of proceedings, provided that they had used
the acceleratory remedies at first-instance, namely a supervisory appeal and a
motion for deadline, in accordance with the procedural rules laid down in the
2006 Act.
However, considering that after the remittal by
the Supreme Court, the proceedings on first-instance lasted for only two months
(see paragraphs 9-11 above) the question that arises in the present case
is whether the applicants had a real opportunity to properly exhaust
acceleratory remedies in order to be able to claim compensation for the
violation of the reasonable time requirement after the final resolution of the
proceedings (see Nezirović v. Slovenia (dec.), no. 16400/06, § 41, 25 November
2008).
In this connection the Court reiterates the judgment
in the case of Maksimovič v. Slovenia (no. 28662/05, 22 June 2010,
§§ 21-23) where it found that the period of three months was not enough for the
applicant to have been realistically expected to exhaust the acceleratory
remedies.
Finding no reason to reach a different
conclusion in the present case, the Government’s objection concerning
non-exhaustion of domestic remedies should be dismissed.
The Court notes that the applications are not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that they are not inadmissible on any other
grounds. They must therefore be declared admissible.
B. Merits
1. Article 6
The period to be taken into consideration began
on 26 January 2001, the day the applicants instituted proceedings before the Ljubljana
District Court, and ended on 13 March 2009, the day the Ljubljana District
Court’s judgment of 2 February 2009 was served on the applicants. It therefore
lasted eight years and one month at three 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 examined all the material submitted to
it, and having regard to its case-law on the subject (see, Kumer v. Slovenia,
no. 77542/01, §§ 17-19, 9 March 2006; Krašovec v. Slovenia,
no. 77541/01, §§ 17-19, 9 March 2006; Videmšek v. Slovenia, no. 75701/01,
§§ 17-19, 30 March 2006), 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). In view of its findings
in the case Maksimovič v. Slovenia (cited above, §§ 29-30), the
Court finds 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 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.
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 applicants claimed 12,518.78 euros (EUR) in
respect of non-pecuniary damage.
The Government contested the claim.
The Court considers that the applicants must
have sustained non-pecuniary damage. Ruling on an equitable basis, it awards
award them EUR 3,200 under that head.
B. Costs and expenses
The applicants also claimed EUR 2,086.46 for the
costs and expenses incurred before the Court.
The Court notes that although the applicants’
representative was reminded by the Court of the requirements concerning just
satisfaction claims set out in Rule 60 of the Rules of the Court, he had not
itemised or substantiated these claims. The Court therefore makes no award
under this head.
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. Decides to join the applications;
2. Declares the applications admissible;
3. Holds that there has been a violation of
Articles 6 § 1 and 13 of the Convention;
4. Holds
(a) that the respondent State is to pay the applicants,
within three months EUR 3,200 (three thousand and two hundred 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;
5. Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 18 October 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean
Spielmann Registrar President
