(Application no. 75813/01)
30 March 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 Goršek v. Slovenia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Mr J. Hedigan, President,
Mr B.M. Zupančič,
Mr L. Caflisch,
Mrs M. Tsatsa-Nikolovska,
Mr E. Myjer,
Mr David Thór Björgvinsson,
Mrs I. Ziemele, judges,
and Mr V. Berger, Section Registrar,
Having deliberated in private on 9 March 2006,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 75813/01) 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 Branko Goršek (“the applicant”) on 26 September 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 16 September 2003 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.
5. The applicant was born in 1969 and lives in Velenje.
6. On 20 April 1994 the applicant was injured while serving military service as a conscript.
7. On 23 April 1997 the applicant instituted civil proceedings with the Celje District Court (Okrožno sodišče v Celju) against the Ministry of Defence of the Republic of Slovenia seeking damages in the amount of 4,373,756 tolars (approximately 18,200 euros) for the injuries sustained.
On 25 September 1997 the presiding judge was appointed to the Celje Higher Court (Višje sodišče v Celju) and the case was assigned to a new judge.
On 23 November 1998 the applicant made a request that a date be set for a hearing.
Between 17 May 1997 and 20 September 2001 the applicant lodged eight preliminary written submissions and/or adduced evidence.
Of the five hearings held between 5 February 1999 and 8 October 2001 none was adjourned at the request of the applicant.
During the proceedings the court appointed a medical expert. The court also sought an additional opinion from the appointed 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 7 November 2001.
8. On 21 November 2001 the applicant appealed to the Celje Higher Court (Višje sodišče v Celju). He also requested that the court corrected its judgment. ZT cross-appealed.
On 5 November 2001 the judge, presiding the case before the first-instance court, was appointed to the Celje Higher Court and the case was assigned to a new judge.
On 10 November 2003 the Celje District Court held a hearing and decided to issue a supplementary judgment. This judgment was served on the applicant on 19 January 2004.
On 29 January 2004 the applicant appealed against the supplementary judgment to the Celje Higher Court.
On 27 May 2004 the court allowed the appeals from both parties, annulled the first-instance court’s judgment and remitted the case to the first-instance court for re-examination.
9. The proceedings before the first-instance court are still pending.
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION
10. The applicant complained about the excessive length of the proceedings. Article 6 § 1 of the Convention 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...”
11. 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.”
12. The Government pleaded non-exhaustion of domestic remedies.
13. The applicant contested that argument, claiming that the remedies available were not effective.
14. 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.
15. 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.
16. As to the applicability of Article 6, the Court recalls that disputes between administrative authorities and employees who occupy posts involving participation in the exercise of powers conferred by public law do not attract the application of Article 6 § 1. However, regard being had to the fact that at the time the applicant sustained his injuries he was a conscript, the Court considers that he was not the holder of a post “wielding a portion of the State’s sovereign power” (see Pellegrin v. France [GC], no. 28541/95, § 67, ECHR 1999-VII). This provision is, accordingly, applicable in the present case.
17. 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.
1. Article 6 § 1
18. The period to be taken into consideration began on 23 April 1997, the day the applicant instituted proceedings with the Celje District Court, and has not yet ended. The relevant period has therefore lasted over eight years and ten months and three instances have been involved.
19. 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).
20. 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
21. 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.
22. 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
23. 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.”
24. The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage.
25. The Government contested the claim.
26. The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 3,200 under that head.
B. Costs and expenses
27. The applicant also claimed approximately EUR 1,160 for the costs and expenses incurred before the Court.
28. The Government argued that the claim was too high.
29. 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
30. 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;
(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 3,200 (three thousand two 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 30 March 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Vincent Berger John Hedigan
GORŠEK v. SLOVENIA JUDGMENT
GORŠEK v. SLOVENIA JUDGMENT