THIRD SECTION

CASE OF LESJAK v. SLOVENIA

(Application no. 33553/02)

JUDGMENT

STRASBOURG

6 April 2006

FINAL

06/07/2006

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 Lesjak v. Slovenia,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

Mr J. Hedigan, President
 Mr B.M. Zupančič
 Mrs M. Tsatsa-Nikolovska
 Mr V. Zagrebelsky
 Mr E. Myjer
 Mr D.T. Björgvinsson, 
 Mrs I. Ziemele, judges
and Mr V. Berger, Section Registrar,

Having deliberated in private on 16 March 2006,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 33553/02) 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 Srečko Lesjak (“the applicant”), on 23 January 2001.

2.  The applicant was represented by the Verstovšek lawyers. The Slovenian Government (“the Government”) were represented by their Agent, Mr L. Bembič, State Attorney-General.

3.  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. In substance, he also complained about the lack of an effective domestic remedy in respect of the excessive length of the proceedings (Article 13 of the Convention).

4.  On 7 September 2004 the Court decided to communicate the complaints concerning the length of the proceedings and the lack of remedies in that respect to the Government. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time.

THE FACTS

5.  The applicant was born in 1930 and lives in Štore.

6.  On 23 November 1990 the applicant was injured in a car accident. The perpetrator of the accident had taken out insurance with the insurance company ZT.

7.  On 30 December 1992 the applicant instituted civil proceedings against ZT in the Celje Baisc Court (Temeljno sodišče v Celju) seeking damages in the amount of 6,700,000 tolars (approximately 28,000 euros) for the injuries sustained.

Before 28 June 1994, the day the Convention entered into force with respect to Slovenia, the court held four hearings and appointed a road traffic expert and a medical expert.

On 1 July 1994 the applicant submitted a preliminary written submission.

On 5 July 1994 the court held a hearing and decided to deliver a written judgment.

The judgment, upholding the applicant’s claim in part, was served on the applicant on 30 October 1994.

8.  On 10 October 1994 the applicant appealed to the Celje Higher Court (Višje sodišče v Celju). ZT cross-appealed.

On 14 June 1995 the court allowed both appeals in part and remitted the case to the first-instance court for re-examination.

The judgment was served on the applicant on 17 July 1995.

9.  On 1 January 1995 the reorganisation of the Slovenian judicial system took effect.

After the case had been remitted to the first-instance court, it was initially assigned to the Celje Local Court (Okrajno sodišče v Celju) but after the applicant raised his claim in preliminary written submissions of 31 August 1995, the case was transferred to the Celje District Court (Okrožno sodišče v Celju).

Between 31 August 1995 and 6 June 1997 the applicant made three requests that a date be set for a hearing.

Between 12 January 1996 and 29 August 1997 he lodged six preliminary written submissions and/or adduced evidence.

Of the three hearings held between 12 February 1996 and 4 September 1997 none was adjourned at the request of the applicant.

During the proceedings the court appointed two medical experts.

On 25 September 1997 the judge presiding the case was appointed to the Celje Higher Court and the case was assigned to a new district court judge.

At the last hearing the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 5 November 1997.

10.  On 10 November 1997 the applicant appealed to the Celje Higher Court and requested that the first-instant court corrected its judgment. ZT cross-appealed.

On 21 November 1997 the first-instance court corrected the judgment. The decision was served on the applicant on 8 December 1997

On 18 March 1998 the Celje Higher Court upheld both appeals, annulled the judgment of 25 September 1997 and returned the case to first-instance court for a new trial.

The decision was served on the applicant on 13 May 1998.

11.  Between 6 July 1998 and 17 December 1999 the applicant made eight requests that a date be set for a hearing.

Between 6 July 1998 and 19 January 2000 he lodged seven preliminary written submissions and/or adduced evidence.

Of the four hearings held between 15 September 1998 and 3 February 2000 none was adjourned at the request of the applicant.

During the proceedings the court appointed a medical expert and a road traffic expert.

At the last hearing the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 27 March 2000.

12.  On 6 April 2000 the applicant lodged an appeal with the Celje Higher Court. ZT cross-appealed.

On 7 February 2001 the Celje Higher Court rejected the applicant’s appeal, upheld ZT’s appeal in part, and lowered the damages awarded.

The judgment was served on the applicant on 13 March 2001.

13.  On 27 March 2001 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče).

On 18 March 2002 the court dismissed the appeal.

The decision was served on the applicant on 23 May 2002.

14. On 23 October 2002, the first-instance court issued a decision on costs and expenses.

15.  The applicant appealed.

The Celje Higher Court dismissed the appeal on 6 November 2003.

The decision was served on the applicant on 5 January 2004.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION

16.  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 his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

17.  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

18.  The Government pleaded non-exhaustion of domestic remedies.

19.  The applicant contested that argument, claiming that the remedies available were not effective.

20.  The Court notes that the present application is similar to the cases of Belinger and Lukenda (Belinger v. Slovenia (dec.), no. 42320/98, 2 October 2001, and Lukenda v. Slovenia, no. 23032/02, 6 October 2005). In those cases the Court dismissed the Government’s objection of non-exhaustion of domestic remedies because it found that the legal remedies at the applicant’s disposal were ineffective. The Court recalls its findings in the Lukenda judgment that the violation of the right to a trial within a reasonable time is a systemic problem resulting from inadequate legislation and inefficiency in the administration of justice.

21.  As regards the instant case, the Court finds that the Government have not submitted any convincing arguments which would require the Court to distinguish it from its established case-law.

22.  The Court further 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. It must therefore be declared admissible.

B.  Merits

1.  Article 6 § 1

23.  The period to be taken into consideration began on 28 June 1994, the day when the Convention entered into force with respect to Slovenia, and ended on 5 January 2004, the day the Supreme Court decision was served on the applicant. It therefore lasted over nine years and six months and decisions have been rendered on nine instances.

24.  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).

25.  The Court notes that the decisions were rendered on nine instances and, consequently, cannot conclude that the courts were inactive in the present case. On the contrary, the delay in the present case was caused mainly by the re-examination of the case. Although the Court is not in a position to analyse the juridical quality of the case-law of the domestic courts, it considers that, since the remittal of cases for re-examination is usually ordered as a result of errors committed by lower courts, the repetition of such orders within one set of proceedings may disclose a serious deficiency in the judicial system (see, e.g., Wierciszewska v. Poland, no. 41431/98, § 46, 25 November 2003). The Government have failed to provide any explanation that would lead the Court to reach a different conclusion.

26.  Having examined all the material submitted to it, and having regard to its case-law 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

27.  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). It notes that the objections and arguments put forward by the Government have been rejected in earlier cases (see Lukenda, cited above) and sees no reason to reach a different conclusion in the present case.

28.  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

29.  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

30.  The applicant claimed 12,500 euros (EUR) in respect of non-pecuniary damage.

31.  The Government contested the claim.

32.  The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 3,500 under that head.

B.  Costs and expenses

33.  The applicant also claimed approximately EUR 1,570 for the costs and expenses incurred before the Court.

34.  The Government argued that the claim was too high.

35.  According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. The Court also notes that the applicant’s lawyers, who also represented the applicant in Lukenda (cited above), lodged nearly 400 applications which, apart from the facts, are essentially the same as this one. Accordingly, in the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the applicant the sum of EUR 1,000 for the proceedings before the Court.

C.  Default interest

36.  The Court considers it appropriate that the default interest 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 Article 6 § 1 of the Convention;

3.  Holds that there has been a violation of Article 13 of the Convention;

4.  Holds

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,500 (three thousand five hundred euros) in respect of non-pecuniary damage and EUR 1,000 (one thousand euros) in respect of costs and expenses, plus any tax that may be chargeable;

(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 the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 6 April 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Vincent Berger John Hedigan 
 Registrar President


LESJAK v. SLOVENIA JUDGMENT


LESJAK v. SLOVENIA JUDGMENT