FIFTH SECTION
CASE OF
TRUNK v. SLOVENIA
(Application no.
41391/06)
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 Trunk 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. 41391/06) 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, Mr Franc Trunk (“the applicant”), on 29
September 2006.
The applicant was
represented by Ms M. Končan Verstovšek, a lawyer practising in Celje. The
Slovenian Government (“the Government”) were represented by their Agent.
The applicant alleged under Article 6 § 1 of the
Convention that the length of the proceedings before the domestic courts to
which he was a party was excessive. He also
complained under Article 13 of the Convention of the lack of an effective
domestic remedy in this respect.
On 24 November 2010 the
application was communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1957 and lives in Portorož.
The facts of the case, as submitted by the
parties, may be summarised as follows.
A. First set of proceedings (III Pd 489/96)
The applicant was a public servant working for
the Centre for Educational and Extracurricular Activities (“the Center”). He was
laid off following disciplinary proceedings. On 11 October 1996 he instituted
proceedings before the Ljubljana Labour and Social Court against the Ministry
of Education and Sport (“The Ministry”) and the Centre seeking the annulment of
the decision on termination of his employment contract together with all the
rights and benefits stemming from the termination of the contract.
On 23 February 1998 the first hearing was held.
On 22 September 1998 the court issued a decision
after the applicant withdrew his claim against the Ministry.
Between 8 October 1998 and 8 November 1999 the first-instance
court held three hearings. In addition, in May and April 1999 two hearings were
postponed on the request of the defendant party. A hearing was held on 8
November 1999.
On 22 December 1999 the first-instance court
rendered a judgment rejecting the applicant’s request. He appealed.
On 5 April 2002 the Ljubljana Higher Labour and Social Court upheld the appeal in part and remitted the case for re-examination. The court
remitted part of the case because a preliminary submission of the defendant had
not been sent to the applicant and he could therefore not submit his comments
on the matter.
On 18 June 2002 the first-instance court held a
hearing and rendered a judgment. The court found the first-instance disciplinary
decision (see paragraph 7 above) to be lawful and the second-instance decision
to be unlawful. Accordingly the court concluded that the applicant’s employment
contract had been terminated lawfully, however the decision on termination
became final only when the judgment became final. The court therefore found that
the applicant was entitled to the employment rights and benefits for the
relevant period. The applicant appealed.
On 25 September 2002 the Ljubljana Labour and Social Court issued a corrigendum of the judgment.
On 27 August 2004 the Ljubljana Higher Labour
and Social Court delivered a judgment. As the applicant kept lodging new
requests concerning his rights and benefits throughout the proceedings the
appeal court considered one such request in the appeal as a request for a
supplementary judgment. The court rejected the remainder of the appeal and in
this part the judgment became final. The applicant lodged an appeal on points
of law.
On 4 November 2004 the Ljubljana Labour and Social Court rejected the appeal on points of law on procedural grounds. The applicant
appealed.
On 14 January 2005 the Ljubljana Higher Labour
and Social Court upheld the appeal. The appeal on points of law was sent to the
Supreme Court.
On 25 October 2005 the Supreme Court rejected
the appeal on points of law. The applicant lodged a constitutional appeal.
On 7 June 2006 the first-instance court issued a
judgment (see paragraph 15 above). The applicant appealed.
On 5 October 2006 the appeal was rejected. The
appeal court found inter alia that the applicant had been requesting
rights and benefits after the appeal judgment became final without any grounds.
On 12 February 2007 the Constitutional Court
rejected the constitutional appeal.
B. Second set of proceedings (VP 371/96)
On 20 December 1996 the applicant’s former
employer instituted proceedings against him before the Ljubljana District Court
seeking the restitution of work-related material following the dismissal.
On 14 May 1997 the Ljubljana District Court
issued a decision ordering the applicant to return the disputed material. The
applicant appealed.
On 3 July 1997 the court held a hearing and
annulled the decision. The plaintiff appealed.
On 14 October 1997 the Ljubljana Higher Court
rejected the appeal.
On 18 December 1997 a decision was issued,
whereby due to lack of jurisdiction the case was transferred to the Piran
District Court.
On 28 November 1998 the applicant lodged a
counter claim seeking payment for the updates he made to a computer and car
expenses.
On 8 January 2001 the proceedings were stayed.
The proceedings resumed on 9 April 2001.
On 15 October 2001 the Piran District Court
issued a decision on termination of proceedings following the withdrawal of the
claim by the plaintiff. The applicant, however, decided to pursue his counter
claim.
On 5 February 2002 the Piran District Court
issued a decision on lack of jurisdiction. The case was transferred to the Ljubljana Labour Court.
Between 12 April 2002 and 14 March 2003 the Ljubljana Labour Court held four hearings.
After the last hearing the court rendered a
judgment upholding the applicant’s request in part. Both parties appealed.
On 18 November 2004 the Higher Labour and Social Court upheld the appeals and remitted the case for re-examination.
On 23 March 2007 the Ljubljana Labour Court held
a hearing and rendered a judgment upholding the applicant’s request in part. An
appeal was lodged.
On 10 September 2008 the Higher Labour and Social Court rendered a judgment.
II. RELEVANT DOMESTIC LAW
For relevant domestic law see Tomažič v.
Slovenia (no. 38350/02,
December 2007).
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 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 ...”
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
Firstly, as regards the second set of
proceedings the Court notes that they were pending at second instance on 1
January 2007 and 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.
Secondly, as to the first set of proceedings the
Court notes that the present case concerns proceedings that fall into the
category of cases where the domestic proceedings had been “finally resolved”
before the Act on the Protection of the Right to a Trial without undue Delay
(“the 2006 Act”) entered into force but have afterwards continued before the
Supreme and Constitutional Court. The case is thus similar to the case Kovinar
d.o.o. v. Slovenia (no. 24162/06, 4
December 2012). In that case the Court found that the
legal remedies at the applicant’s disposal were ineffective (ibid., §§ 18-21).
The Court finds that the Government have not
submitted any convincing arguments which would require the Court to distinguish
the present case from the above mentioned case.
The Court further notes that the part of the
application concerning the first set of proceedings 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.
B. Merits
1. Article 6
The period to be taken into consideration began
on 11 October 1996, the date when proceedings were instituted,
and ended on 12 February 2007, when the Constitutional Court’s decision was
issued. The proceedings thus lasted ten years and four 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 for example 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 (see Bedi v. Slovenia, no.
24901/02, §§ 18-20, 13 April 2006; and Žnidar v. Slovenia, no. 76434/01,
§§ 21-23, 9 March 2006) on the subject, 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 39-42 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. 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 26,800 euros (EUR) in
respect of non-pecuniary damage.
The Government did not express an opinion on the
matter
The Court considers that the applicant must have
sustained non-pecuniary damage. Ruling on an equitable basis, it awards award him
EUR 2,400 under that head.
B. Costs and expenses
The applicant also claimed EUR 3,060 for the
costs and expenses incurred before the Court.
The Government did not express an opinion on the
matter
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. In the present case, the
Court notes the representative doubled his fees due to the representation
before an international court, which the Court finds unreasonable, since, for
example, he was allowed to use the Slovenian language before the Court. The
Court therefore considers it reasonable to award the applicant the sum of EUR
1,500 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 proceedings and the lack of an effective
remedy as regards the first set of proceedings 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 2,400 (two thousand four hundred euros)
plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,500 (one thousand five hundred 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.
