FIFTH SECTION
CASE OF
FORTUNAT v. SLOVENIA
(Application no.
42977/04)
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 Fortunat 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. 42977/04) 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 Zdenko Fortunat (“the applicant”), on
29 November 2004.
The Slovenian Government (“the Government”) were
represented by their Agent.
On 10 May 2010 the Court
decided to communicate the complaints concerning the length of the proceedings
and the lack of remedies in that respect to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1962 and lives in Portorož.
A. First set of criminal proceedings (no. K 51/96)
On 4 March 1996 the applicant was taken into
custody.
On 3 July 1996 after the investigation had been
terminated, an indictment was lodged against the applicant before the Nova
Gorica District Court. He was charged with fraud, larceny, forgery and abuse of
trust.
On 8 October 1996 the first hearing was held. Between
8 October 1996 and 20 January 1997 the court held twenty-eight hearings. In
1997 the court held fifty hearings, in 1998 forty-one hearings and in 1999 twenty
hearings.
On 30 September 1999 the Public Prosecutor
modified the indictment.
Between December 1999 and March 2001 the court
held eleven hearings.
On 13 March 2001 the Public Prosecutor modified
the indictment for the second time.
On 22 October 2001 the case was assigned to a
new judge P.G. Under the new judge, the court held twenty hearings. Following
several motions for recusal of the judge and an action for damages lodged against
him by the applicant, the first judge resigned from the case.
On 8 January 2003 the first-instance court
decided to try one count of fraud in a separate set of proceedings (K 3/2003).
On 3 March 2004 the case was assigned to a new
judge, G.K. Following a civil action for damages lodged against the judge P.G.,
he requested to be removed from the case (see paragraph 11 above). In the
course of the proceedings the applicant lodged several criminal complaints and
actions for damages against the judges, the president of the court and the
president of the Koper Higher Court as well as requests for change of venue.
On 27 October 2004 the first hearing under the
newly appointed judge was held.
On 8 November 2004 the court held a hearing and
the applicant lodged a request for recusal of the judge. He also lodged a
criminal complaint against him, an action for damages and a constitutional
appeal.
During the hearing, held on 11 November 2004,
the applicant again lodged a request for recusal of the judge and the president
of the court.
Until the end of 2004 the court held nine more
hearings. The applicant, by way of protest, refused to participate at six
hearings out of nine.
On 10 January 2005 the Nova Gorica District
Court after holding over 200 hearings, examining multiple witnesses and appointing
one expert, delivered a judgment. The applicant was found guilty of criminal
offences concerning fraud and abuse of trust. He was sentenced to six years of
imprisonment. Both parties appealed.
On 25 October 2006 the Koper Higher Court
delivered a judgment. In its decision the appeal court modified in part the
first-instance judgment and found the applicant guilty of an additional
criminal offence. The sentence was increased to six years and six months of
imprisonment.
On 22 January 2007 the applicant lodged with the
Supreme Court an appeal against the second-instance judgment and a request for
protection of legality.
On 5 April 2007 the applicant lodged a request
for recusal of the Supreme Court judges.
On 26 April 2007 the Supreme Court rejected the
request for protection of legality. The requests for recusal were also
rejected.
On 26 June 2007 the Supreme Court decided on the
appeal against the second-instance judgment. The appeal was upheld and the
second-instance judgment amended. The applicant was sentenced to five years and
six months of imprisonment.
On 11 October 2007 the applicant’s
representative lodged a request on protection of legality challenging the
decision upon appeal (see paragraph 23).
On 7 July 2008 the Supreme Court rejected the
request on protection of legality. The applicant lodged a constitutional
appeal.
On 5 November 2010 the Constitutional Court rejected
his appeal.
B. Second set of criminal proceedings (no. K 3/2003)
On 30 October 2006, following the decision on
separation of proceedings (see paragraph 12 above) the Nova Gorica District
Court delivered a judgment. The applicant appealed.
On 16 January 2008 the Koper Higher Court
rejected the appeal. He lodged an appeal on points of law.
On 16 December 2009 the Supreme Court rejected
the appeal. He lodged a constitutional appeal.
On 10 October 2011 the Constitutional Court
rejected the appeal.
II. RELEVANT DOMESTIC LAW
For relevant domestic law see Tomažič v.
Slovenia (no. 38350/02, 13 December 2007).
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF
THE CONVENTION
The applicant complained about the excessive
length of the proceedings. He relied on Article 6 § 1 of the Convention, which
reads as follows:
“In the determination of ... any criminal charge against him,
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
The Government pleaded non-exhaustion of
domestic remedies for both sets of proceedings.
As regards the first set of proceedings the
Government argued that as the applicant received a settlement proposal under
section 25 of the Act on the Protection of the Right to a Trial without undue
Delay (“the 2006 Act”), he should have availed himself of the domestic remedies
under section 25. Furthermore, they also pleaded non-exhaustion of domestic
remedies for the part of the proceedings before the Supreme Court, which were conducted
after 1 January 2007, the date when the new legislation became operational.
The applicant contested these arguments.
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. 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.
38. 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. 10386/03, § 17, 16 March 2010), 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 Government’s objection concerning the
exhaustion of domestic remedies as regards the first set of proceedings should
therefore be dismissed.
The Court further notes that this part of the
application is not manifestly ill-founded within the meaning of Article 35 § 3 (a)
of the Convention. Nor is it inadmissible on any other grounds. It must therefore
be declared admissible.
As to the second set of proceedings the Court
notes they were pending at second instance on 1 January 2007 and have continued
for more than three months. Following the Court’s findings in the cases Grzinčič
v. Slovenia (no. 26867/02, § 110, 3 May 2007) and Nezirovič v.
Slovenia (no. 16400/06, (dec.), §§ 27-42, 18 November 2008) the complaints
under Articles 6 and 13 must be declared inadmissible in accordance with Article 35
§§ 1 and Article 35 §§ 3 and 4 of the Convention, respectively.
B. Merits
1. Article 6
The period to be taken into consideration began
on 4 March 1996, the date when the applicant
was taken into detention, and ended on 5 November 2010, when the
Constitutional Court’s decision was issued. The proceedings thus lasted fourteen
years and seven 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).
The Court notes that the case concerned criminal
proceedings dealing with several criminal offences, which can be considered as
complex.
Examining the applicant’s behaviour, the Court
observes that he lodged repeated requests for the recusal of judges as well as
criminal complaints and compensation claims against them, which resulted in
three judges stepping down from the case. In this respect the Court recalls
that while the applicant is entitled to make use of his procedural rights, he
must bear the consequences when his exercise leads to delays (see, inter
alia, Malicka-Wąsowsa v. Poland (dec.), no. 41413/98, 5 April
2001, and Peryt v. Poland, no. 42042/98, 2 December 2003). In the
circumstances of this case the Court finds that the applicant’s conduct had an
adverse affect on the length of the proceedings.
Notwithstanding the applicant’s contribution to
the delays and the complexity of the case, the Court cannot ignore the fact
that it took the first-instance court nine years to deliver its judgement. The
longest periods of inactivity being in the period when the case had been
reassigned to new judges (see paragraphs 11-13 above).
Having regard to the foregoing and to its case-law
on the subject (see Rumpf v. Germany, no. 46344/06, §§ 41-46, 2
September 2010, Tomažič v. Slovenia, no. 38350/02, §§ 54-61,
13 December 2007, Jazbec v. Slovenia, no. 31489/02, §§ 64-69, 14
December 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 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 37-38 above). As
regards the remedies available prior to the implementation of the 2006 Act, the
Court sees no reason to take a different approach to 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
upholding his right to have his case heard within a reasonable time, as set
forth in Article 6 § 1.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, the applicant complained under Article 6
that the domestic proceedings were unfair and the judges arbitrary and
incompetent. He complained inter alia that he was tried in absentia, he
did not have the adequate time to prepare his defence, that the indictment was
unlawfully broadened, that the evidence-taking was unfair and to his detriment,
since most of his requests were rejected. He further complained that the courts
were biased, the judgments ambiguous and that his conviction was based on illegally
obtained evidence.
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 this part of the application is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
III. 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 10,000 euros (EUR) 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 6,720 under that head.
B. Costs and expenses
The applicant also claimed EUR 500 for the costs
and expenses incurred before the Court.
The Court notes that he had not itemised or substantiated
his 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
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 unanimously the remainder of the
application inadmissible;
3. Holds by six votes to one that there has
been a violation of Article 6 § 1 and Article 13 of the Convention;
4. Holds by six votes to one
(a) that the respondent State is to pay the applicant,
within three months EUR 6,720 (six thousand seven hundred and twenty 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 unanimously the remainder of the
applicant’s claim for just satisfaction.
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.
