FIFTH SECTION
CASE OF
OROŽIM v. SLOVENIA
(Application no.
49323/06)
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 Orožim 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. 49323/06) 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 a Slovenian national, Ms Štefanija Orožim (“the applicant”), on
13 November 2006.
The Slovenian Government (“the Government”) were
represented by their Agent.
The applicant alleged, inter
alia, 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.
She also complained under Article 13 of the Convention of the lack of an
effective domestic remedy in this respect.
On 14 January 2011 the
application was communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1939 and lives in Lesce.
In 1993 the company DOMPLAN Kranj instituted
enforcement proceedings against the applicant before the Kranj Basic Court. The
enforcement order was issued on 20 April 1993.
On 28 June 1994 the Convention came into force in
respect of Slovenia.
On 28 July 1994 the case was reassigned to the
Radovljica District Court.
On 23 December 1994 the enforcement order was
served on the applicant. She lodged an objection.
On 13 September 1995 the enforcement order was
annulled and the case was to be adjudicated in the framework of contentious
proceedings.
On 3 October 1995 the creditor lodged another
request for enforcement against the applicant. The enforcement order was issued
on 23 October 1995.
On 26 January 1999 the Radovljica District Court
issued a decision joining the two cases.
On 23 April 2001 the first-instance court held a
hearing.
On 9 July 2001 the first-instance court rendered
a judgment, upholding the creditor’s requests. The applicant appealed.
On 24 April 2002 the Ljubljana Higher Court
rejected the appeal.
On 7 October 2002 the creditor lodged a request
for enforcement based on the judgment of 9 July 2001.
On 14 October 2002 the Radovljica District Court
issued an enforcement order.
On 30 October 2002 the applicant lodged an
objection to the order and at the same time a request for postponement of the
enforcement expressing willingness to reach a settlement. The applicant’s
objection was sent to the creditor on 12 September 2003. The creditor responded
on 5 March 2004.
On 25 May 2006 the first-instance court held a
hearing and issued a decision regarding the objection against the enforcement
order. The creditor appealed.
On 8 March 2007 the creditor requested the
proceedings to be terminated following an out-of-court settlement reached
between the parties. The decision on termination of proceedings was issued on
16 March 2007.
II. RELEVANT DOMESTIC LAW
For relevant
domestic law see Nezirović v. Slovenia ((dec.) no. 16400/06,
25 November 2008).
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 and 13 OF
THE CONVENTION
. The
applicant complained that the proceedings to which she was a party had been
excessively long. 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
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 Court 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 (see Maksimovič
v. Slovenia, no. 28662/05, §§ 21-24, 22 June 2010 and Korelc v.
Slovenia, no. 28456/03, §§ 59-63, 12 May 2009). It must therefore be
declared admissible.
B. Merits
1. Article 6
The Government argued that for the purposes of
calculation of the duration of proceedings the enforcement proceedings and the
contentious proceedings should be considered separately, since they are
proceedings governed by different rules and conducted independently one from
another.
The Court observes that the proceedings
comprised of three stages. They began as enforcement proceedings instituted by
the creditor, which later continued as contentious proceedings ending on 9 July
2001, when the first-instance judgment was issued. Based on this final judgment
the creditor again instituted enforcement proceedings, which ended on 16 March
2007.
The Court reiterates its case-law on the
subject, where it stated that the execution of a judgment given by any court is
to be regarded as an integral part of the “trial” for the purposes of Article 6
of the Convention (see Hornsby v. Greece, judgment of 19 March 1997,
Reports of Judgments and Decisions 1997-II, p. 510, § 40). This principle has
been found applicable in cases concerning the length of proceedings (see, for
example, the Di Pede v. Italy and Zappia v. Italy judgments of 26
September 1996, Reports of Judgments and Decisions 1996-IV, pp. 1383-1384, §§
20-24, and pp. 1410-1411, §§ 16-20, respectively) and is therefore also
applicable in the present case.
Having regard to the above, the period to be taken into consideration began on 28
June 1994, the day the Convention came into force in
respect of Slovenia, and ended on 16 March 2007,
the day the decision on termination of proceedings was issued. It therefore
lasted twelve years and nine months. The case was considered first as
enforcement proceedings at one instance and in contentious proceedings on two
instances (see paragraphs 14, 15 and 19 above).
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, Frydlender v. France [GC],
no. 30979/96, § 43, ECHR 2000-VII).
In this connection the Court observes that longest
period of inactivity attributable to the State lasted between October 1995 and
June 2001 (see paragraphs 11-13 above). The applicant’s contribution to the
delays on the other hand amounts to approximately two years, namely from
October 2002 and May 2006 (see paragraphs 18-19 above), when she requested the
postponement of the enforcement and failed to promptly settle her debt.
Having examined all the material submitted to
it, and having regard to its case-law on the subject (see, Simončič
v. Slovenia, no. 7351/04, §§ 23-26, 18 January 2011, Ovniček
v. Slovenia, no. 33561/02, §§ 17-19, 27 April 2006; Soleša v.
Slovenia, no. 21464/02, §§ 17-19, 13 April 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 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. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, the applicant complained under Articles
6 and 14 of the Convention that the proceedings were unfair and the domestic
courts were clearly on the creditor’s side, completely ignoring her submissions
and evidence. She further complained that she was discriminated against by
everyone, including her attorney.
The Court notes that the applicant did not lodge
a constitutional complaint. The above complaints must therefore be rejected for
non-exhaustion of domestic remedies under Article 35 §§ 1 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 17,609.45 euros (EUR) in
respect of pecuniary and non-pecuniary damage.
The Government contested these claims.
The Court does not discern any causal link
between the violation found and the pecuniary damage alleged; it therefore
rejects this claim. On the other hand, it awards the applicant EUR 6,400 in
respect of non-pecuniary damage.
B. Costs and expenses
The applicant also claimed EUR 842,02 for the
costs and expenses incurred before the domestic courts and EUR 41,08 for those
incurred before the Court.
The Government contested the claim for
reimbursement of costs and expenses incurred before the domestic courts.
Regard being had to the documents in its
possession and to its case-law, the Court rejects the claim for costs and
expenses in the domestic proceedings and considers it reasonable to award the
sum of EUR 50 for the proceedings before the Court.
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 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, the following amounts:
(i) EUR 6,400 (six thousand four hundred euros),
plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 50 (fifty euros), plus any tax that may be
chargeable to the applicant, in respect of costs and expenses;
(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;
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.
