FIFTH SECTION

CASE OF JATAIRWAYS, A.D. BEOGRAD v. SLOVENIA

(Application no. 10761/09)

JUDGMENT

STRASBOURG

3 July 2014

This judgment is final but it may be subject to editorial revision.

In the case of Jatairways, A.D. Beograd 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 10 June 2014,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 10761/09) 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 Jatairways, A.D. Beograd, a joint stock company, whose registered office is in Belgrade, Serbia (“the applicant company”), on 20 February 2009.
2.  The applicant was represented by its legal service. The Slovenian Government (“the Government”) were represented by their Agent.
3.  On 5 June 2013 the application was communicated to the Government.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
4.  On 4 December 1991 proceedings before the Ljubljana Court of Associated Labour were instituted against the applicant company by forty-seven of its former employees, following their dismissal from work.
5.  By 28 June 1994 when the Convention came into force in respect of Slovenia, the court held one hearing.
6.  A hearing was scheduled for 8 July 1998 but the Ljubljana Labour and Social Court was unable to serve the summons to the applicant company as the latter changed its address without informing the court. The court therefore ordered that all further court’s writings would be served on the applicant company by a publication on the court’s notice board.
7.  On 30 June 1999 the Ljubljana Labour and Social Court held a hearing in the absence of the applicant company and issued its decision, deciding that the dismissal of the plaintiffs by the applicant company was illegal and ordering the applicant company to acknowledge their rights from the employment contract and to pay them outstanding salaries. The decision was served on the applicant company on 27 October 1999 through diplomatic channels. The applicant company appealed.
8.  On 17 January 2001 the Higher Labour and Social Court upheld the first instance court’s decision in the part concerning the illegality of the dismissal, annulled the remainder of the decision and remitted the case back to the first instance court.
9.  In the remitted proceedings the court’s writings were initially served on the applicant company. Later on, the applicant company authorized a Slovenian lawyer, M. J., to represent it in the proceedings.
10.  On 17 December 2004 the first instance court held a hearing and decided to examine the claims of twenty-two of the plaintiffs separately from the remaining claims. On the same date it issued its decision on the claims of the remaining plaintiffs and upheld their claim concerning the payment of the outstanding salaries. The applicant company appealed.
11.  On 15 March 2005 the Higher Court requested the applicant company’s representative to present his power of attorney.
12.  On 31 May 2005 the plaintiffs filed a motion for interim order.
13.  On 8 June 2005 the court made the interim order requested.
14.  On 20 June 2005 the applicant lodged an objection against the interim order.
15.  On 18 July 2005 the court dismissed the applicant’s objection. The applicant appealed.
16.  On 14 October 2005 the Higher Labour and Social Court quashed the decision of 18 July 2005 and remitted the case back to the first instance court.
17.  On 22 October 2005 the Ljubljana Labour and Social Court again dismissed the applicant’s objection against the interim order. The applicant appealed.
18.  On 15 December 2005 the Higher Labour and Social Court upheld the applicant’s appeal, annulled the first-instance court’s decision of 8 June 2005 and dismissed the plaintiffs’ motion for an interim order.
19.  On 9 November 2006 the Higher Labour and Social Court partially upheld the applicant company’s appeal against the decision of 17 December 2004 and modified the decision of the first instance court in the part concerning the payment of interest and dismissed the remainder of the appeal. The applicant company and the plaintiffs lodged an appeal on points of law.
20.  On 6 February 2007 the applicant company was reminded by the court to pay the court fee for lodging an appeal on points of law.
21.  On 28 February 2007 the applicant company was reminded by the court to pay the court fee for its reply to the appeal on points of law lodged by the plaintiffs.
22.  On 25 February 2008 the Supreme Court dismissed both appeals on points of law and upheld the decision of the Higher Court. The applicant company lodged a constitutional appeal.
23.  On 14 April 2008 the applicant company was again reminded to pay the outstanding court fees.
24.  On 7 July 2008 the Constitutional Court dismissed the applicant company’s constitutional appeal. The decision was served on its representative on 20 August 2008.
II.  RELEVANT DOMESTIC LAW
25.  For relevant domestic law, see the judgments Robert Lesjak v. Slovenia (no. 33946/03, 21 July 2009); Tomažič v. Slovenia (no. 38350/02, 13 December 2007) and Lukenda v. Slovenia (no. 23032/02, ECHR 2005‑X).
THE LAW
I.  ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION
26.  The applicant company 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...”
27.  The applicant company 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 [this] 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
28.  The Government argued non-exhaustion, referring to 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”) and a claim for damages for a violation of the right to a trial within a reasonable time under Article 26 of the Constitution.
29. The Court firstly notes that the proceedings in the present case had been finally resolved before 1 January 2007 when the 2006 Act became operational but have subsequently continued before the Supreme and the Constitutional Court. Having regard to the 2006 Act as in force at the material time (see by contrast, Žurej v. Slovenia, (dec.), no. 10386/03, 16 March 2010, § 17), the applicant company was not afforded effective remedy in respect of the delays which occurred in the proceedings (see mutatis mutandis, Robert Lesjak v. Slovenia, cited above, §§ 40-53 and Tomažič v. Slovenia, cited above, §§ 41-45).
30.  The Court secondly recalls that in the case of Lukenda v. Slovenia (no. 23032/02, §§47-71, ECHR 2005‑X) it has found the claim for damages under Article 26 of the Constitution ineffective. The Court sees no reason to take a different approach to that taken in the aforementioned case.
31.  The Government’s objection concerning the exhaustion of domestic remedies should therefore be dismissed.
32.  The Court further notes that 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.
B.  Merits
1.  Article 6
33.  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 further reiterates that special diligence is necessary in labour disputes (Ruotolo v. Italy, judgment of 27 February 1992, Series A no. 230-D, p. 39, § 17; Bauer v. Slovenia, no. 75402/01, § 19, 9 March 2006).
34.  It notes that the period to be taken into consideration began on 28 June 1994, when the Convention entered into force with respect to Slovenia and ended on 20 August 2008, when the Constitutional Court’s decision was served on the applicant company. The proceedings thus lasted fourteen years and two months at four levels of jurisdiction.
35.  In assessing the reasonableness of the time that elapsed after the Convention came into force with respect to Slovenia, account must be taken of the state of proceedings at the time. The Court notes in this connection that at the relevant time the proceedings had already been pending for two years and seven months and that by that time the court had held one hearing.
36.  As regards the complexity of the case, the Court considers the case to be of some complexity due to a large number of plaintiffs. It does not however accept the Government’s submissions that solely because the court needed to obtain an expert opinion in order to decide on the compensation claim, the proceedings should be deemed as particularly complex.
37.  Examining the applicant company’s behaviour, the Court observes that the applicant company failed to inform the court of the change of address and that therefore the hearing scheduled for 8 July 1998 needed to be postponed which had an adverse effect on the proceedings. On the other hand the Court notes that, as it appears from the chronology of proceedings, the serving of court’s writings through diplomatic channels directly to the applicant company which had for several years failed to authorize a Slovenian lawyer to represent it in the proceedings did not have a significant impact on the duration of the proceedings. It also does not appear that the applicant’s failure to pay the court’s fees on time delayed the proceedings, as it did not prevent the Supreme Court to decide on the case.
38.  However, notwithstanding the applicant’s possible contribution to the some of the delays, the Court cannot ignore the fact that within the Court’s jurisdiction ratione temporis it took the first-instance court an additional five years to deliver its judgment after the case had already been pending for more than two years. The Court further observes that a significant period of inactivity occurred in the course of the proceedings between the entering of the Convention into force in respect of Slovenia and spring 1998 when the court tried to schedule a hearing. The court also observes that, following the first partial remittal of the case from the second to the first instance court in January 2001, it took the first instance court almost four years to issue a decision.
39.  Having regard to the foregoing and to its case-law on the subject (see Jazbec v. Slovenia, no. 31489/02, §§ 64-69, 14 December 2006 and Fortunat v. Slovenia, no. 42977/04, §§ 42-47, 18 April 2013), 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 above (see, §§ 29-31) 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 company could have obtained a ruling upholding its right to have its case heard within a reasonable time, as set forth in Article 6 § 1.
II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
40.  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
41.  The applicant company claimed EUR 14,710.20 in respect of pecuniary damage which consisted of costs incurred to the applicant in the domestic proceedings.
42.  The Government contested the claim.
43.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.
B.  Costs and expenses
44.  The applicant company also claimed EUR 596.20 for the costs and expenses incurred in the proceedings before the Court.
45.  The Government contested the claim.
46.  Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the applicant company the full sum claimed for the proceedings before the Court.
C.  Default interest
47.  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 application admissible;

2.  Holds that there has been a violation of Articles 6 § 1 and 13 of the Convention;

3.  Holds
(a)  that the respondent State is to pay the applicant company, within three months, EUR 596.20 (five hundred ninety-six euros and twenty cents), 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 amount 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 applicant’s claim for just satisfaction.
Done in English, and notified in writing on 3 July 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Angelika Nußberger
	Deputy Registrar	President