FIFTH SECTION
CASE OF
BELTRAM AND BELTRAM CEROVŠEK v. SLOVENIA
(Application no.
10017/10)
JUDGMENT
STRASBOURG
10 October 2013
This judgment is final but it may
be subject to editorial revision.
In the case of Beltram and Beltram Cerovšek v. Slovenia,
The European Court of Human
Rights (Fifth Section), sitting as a Committee
composed of:
Angelika
Nußberger, President,
Boštjan M. Zupančič,
Helena Jäderblom, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 17 September 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an
application (no. 10017/10) 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, Mr Marijan Beltram and Mrs Anuška Beltram
Cerovšek (“the applicants”), on 9 February 2010.
The applicants were
represented by Mr R. Završek, a lawyer practising in Ljubljana. The Slovenian
Government (“the Government”) were represented by their Agent.
On 22 November 2012 the application was
communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicants were born in 1977 and live in Ljubljana.
On 2 October 2007 the applicants instituted civil
proceedings against O. J. before the Ljubljana District Court with regard
to the defects of the apartment they had bought from her.
. On
2 April 2008 the applicants requested a hearing.
. On
4 April 2008 the Ljubljana District Court responded that the applicants’ case
could not be granted priority and that it would not be possible to schedule a
hearing until the end of 2008.
. On
6 February 2009 the applicants lodged a supervisory appeal. They stressed inter
alia that according to the Court Rules the first instance decision should
be issued within eighteen months whereas their case had already been pending
for fourteen months.
. On
26 February 2009 the President of the Ljubljana District Court dismissed
the applicant’s supervisory appeal, informing the applicants that the case
could not be granted priority and that it was foreseen that, according to the
order of precedence for non-priority cases a hearing would be scheduled in the
second half of 2009.
. On
5 March 2009 the applicants lodged a motion for a deadline with the Ljubljana Higher Court.
. On
27 March 2009 the Ljubljana Higher Court dismissed the applicants’ motion for a
deadline. It referred to the order of precedence and to the fact that their
case was not considered to be a priority case.
. On
25 May 2009 the applicants lodged a constitutional appeal against the dismissal
of the supervisory appeal and motion for a deadline, alleging that their right
to a trial within reasonable time had been violated.
. On
3 November 2009 the Constitutional Court dismissed the applicants’
constitutional appeal.
. On
22 January 2010 the Ljubljana District Court held a main hearing and appointed
a construction expert to assess the submissions in the claim.
. On
2 March 2010 the Ljubljana District Court dismissed the expert appointed in
January 2010 and appointed another expert.
. Two
hearings were postponed between April and June 2010.
. On
27 September 2010 the court held a hearing, heard the expert witness, issued an
order addressed to the construction company K. Z. to provide the court with
documentation concerning the construction of the apartment and adjourned the
hearing until 8 December 2010.
. On
15 October 2010 the company K. Z. lodged an appeal against the order of the
court to provide it with the documentation on the grounds that the order was
insufficiently precise.
. A
hearing scheduled for 8 December 2010 was postponed due to the appeal of the
company K. Z. pending before the higher court.
. On
17 February 2011 the Ljubljana Higher Court granted the appeal of K. Z. and
remitted the case back to first instance.
. At
the hearing on 9 March 2011 the Ljubljana District Court indicated that a new
order with regard to the company K. Z. would be issued and adjourned the
hearing.
. On
24 March 2011 the Ljubljana District Court issued a new order addressed to the
company K. Z.
. After
the company K.Z. informed the court by letter dated 14 April 2011 that
they would make the requested documentation available at the company’s office,
the court on 19 April 2011 requested the expert to inspect the documentation
and supplement the expert opinion.
. On
7 October 2011 the expert submitted the supplementary opinion.
. At
the hearing on 11 January 2012 the court granted the applicant’s motion to
appoint an expert on noise exposure.
. On
4 April 2012 the court appointed an expert on noise exposure.
. On
25 May 2012 the court received the expert opinion.
. On
24 August 2012 the court held a main hearing. It granted the motion that the construction
expert opinion be amended by taking into account the opinion on noise
pollution.
. On
15 October 2012 the construction expert submitted his supplemented opinion.
. On
15 March 2013 the Ljubljana District Court held a main hearing and heard the construction
expert. On the same date the court issued its decision granting in large part
the claim of the applicants. The decision was served to the applicants on 17
April 2013. Both parties appealed.
. The
proceedings are still pending before the Ljubljana Higher Court.
II. RELEVANT DOMESTIC LAW
For 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.
In addition, according to Article 50 of the
Court Rules (Sodni red, Official Journal, No. 17/95, with the amendments
published in Official Journal No. 82/2007), civil proceedings before the first
instance court that have lasted more than eighteen months are considered as
judicial delay.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The applicants 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 applicants had not exhausted the domestic remedies available to them. 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 Court considers that the period to be taken into consideration began on 2
October 2007, when the applicants instituted proceedings before the Ljubljana
District Court, and has not yet ended. The relevant period has therefore so far
lasted almost six years at two 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).
Applying the criteria, the Court observes that the proceedings do not appear
to be complex and no significant delays in the proceedings can be attributed to
the applicants. But it nevertheless took the first instance court more than two
years to schedule the first hearing, and further three years and a half to deliver
a judgment.
In this context, the Court reiterates that it is for the State to organise
its legal system in such a way to enable its courts to comply with the
requirement of Article 6 § 1 of the Convention (see, mutatis mutandis,
Tusa v. Italy, 27 February 1992, § 17, Series A no. 231-D,
Jama v. Slovenia, no. 48163/08, § 36, 19 July 2012).
Having examined all the material submitted to it and having regard to its
case-law on the subject (see Mušič v. Slovenia, no. 37294/02, §§ 16-18, 1 June 2006; Mulej v. Slovenia, no. 42252/02, §§ 16-18, 29 June
2006), the Court, for the reasons
set out above, considers that in the instant case the overall length of the
proceedings so far has been excessive and has failed to meet the “reasonable
time” requirement.
There has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE
CONVENTION
The applicants also complained of the absence of effective domestic remedies
in respect of the excessive length of the proceedings, which falls to be
examined under Article 13, which 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 and that it is not inadmissible
on any other grounds. It must therefore be declared admissible.
B. Merits
The applicants argued that there had not been any remedy available to them in
order to accelerate the proceedings or to obtain compensation for their undue
length.
The Government argued that the applicants had the remedies provided for by
the Act on the Protection of the Right to a Trial without Undue Delay (Zakon o varstvu pravice do sojenja brez
nepotrebnega odlašanja, Official Gazette, No. 49/2006 - “the 2006
Act”) at their disposal, which they believed had been proven to be effective.
They maintained that the applicants lodged the acceleratory remedies as early
as one year and four months after the institution of the proceedings which was
premature and that they could have re-lodged the remedies at a later stage of
proceedings. The Government further stressed that despite the dismissal of
their acceleratory remedies as unfounded, the applicants will have the
opportunity to claim just satisfaction after the final resolution of the case,
as provided for in the 2006 Act. Relying on the Court’s decision in the case of
Žunič (cited above), they further argued that in the aforementioned
case, the Court had held that the condition of the final resolution of the case
for filing a just satisfaction claim was a legitimate way of ensuring that just
satisfaction covered the entire duration of the proceedings and thus prevented
the repeated filing of such claims while proceedings were still pending.
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” (ibid., § 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).
48. 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 itself on an assessment of the
legislative provisions of the 2006 Act, found that the aggregate of remedies
provided for in cases involving excessively long proceedings pending at first
and second instance was effective in the sense that the remedies were, in
principle, capable of both 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 the subsequent case of Žunič (cited above), the Court
specified that it was indispensable that the proceedings, which had already
lasted a long time, should be finally resolved particularly promptly following
the exhaustion of the acceleratory remedies (ibid., § 50). Moreover, it
emphasised that the national authorities should have ensured that the aggrieved
party had prompt access to the compensatory remedy once he or she had made use
of the acceleratory remedies (ibid., §53).
In the case of Jama v. Slovenia (no. 48163/08, 19 July 2012) the Court found that in the
circumstances of that case both the acceleratory remedies and the compensatory
remedy had proven to be ineffective, since no significant progress had been
made after the applicant had availed himself of the acceleratory remedies, and
he also had not been afforded prompt access to the compensation claim with
respect to damages sustained owing to the unreasonable length of the
proceedings (ibid., §§
47-49).
The Court notes that by the time the applicants lodged the acceleratory
remedies, which were dismissed as premature, their case was already pending
before the first instance court for fourteen months, and that no action had
been taken by the court during this period. The Court observes that, according
to Article 50 of the Court Rules, proceedings that had been pending before the
first instance courts for more than eighteen months were affected by judicial
delays. Relying on this provision, the applicants could have expected that
after fourteen months at least some progress would have been made on their
case. Therefore the Court cannot follow the submissions of the Government that the
applicants’ acceleratory remedies had been lodged prematurely.
The Court notes that as a consequence of the
system provided by the 2006 Act, whereby access to a compensation claim is dependent
on the termination of the proceedings, the applicants have not been afforded
prompt access to just satisfaction claim for the undue delay after having
exhausted the acceleratory remedies.
In view of the above, the Court finds that under
the circumstances of the present case both of the avenues have been shown not
to have been effective. 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 conclusion, it also rejects the Government’s
objection concerning the exhaustion of domestic remedies as to Article 6 of the
Convention.
III. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, the applicants also invoked Articles 6 § 1 of the Convention with regard to the alleged
unfairness of the proceedings, Article 14 of the Convention and Article 1 of
Protocol No. 1 to the Convention.
The Court recalls that in
accordance with Article 35 of the Convention, it may only consider the
complaints raised by the applicants, after the applicants had exhausted all
domestic remedies.
In this respect the Court notes that
the proceedings are still pending. Accordingly, the applicant’s complaints are premature and must be
rejected for non-exhaustion of domestic remedies within the meaning of
Article 35 §§ 1 and 4 of the Convention.
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 applicants claimed together 12,000 euros (EUR) for pecuniary damages
sustained and 4,000 EUR in respect of each for non-pecuniary damages.
The Government contested the claims.
The Court cannot speculate on any pecuniary damages as a result of the
overall length of proceedings and therefore rejects this claim. Nevertheless,
the Court considers that the applicants must have sustained non-pecuniary
damage. Ruling on equitable basis, it awards them jointly EUR 4,000 under that
head.
B. Costs and expenses
The applicants also claimed EUR 3,584 for the costs and expenses incurred before
the Court.
The Government contested the claim.
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 that the representative’s fees exceeded those foreseen under the
domestic scale and that the applicants concluded a special agreement on a
higher fee for legal representation before the Court, which the Court finds
unreasonable, since, for example, the representative was allowed to use the
Slovenian language before the Court. The Court considers it reasonable to award
the applicants 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, UNANIMOUSLY,
1. Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the application
inadmissible;
2. Holds that there has been a violation of
Article 6 § 1 and Article 13 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicants
jointly, within three months, the following amounts:
(i) EUR 4,000 (four thousand
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, plus any tax
that may be chargeable to the applicants, 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;
4. Dismisses the
remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 10 October 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Angelika
Nußberger
Deputy Registrar President
