THIRD SECTION

CASE OF ŽNIDAR v. SLOVENIA

(Application no. 76434/01)

JUDGMENT

STRASBOURG

9 March 2006

FINAL

09/06/2006

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 Žnidar 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 David Thór Björgvinsson, 
 Mrs I. Ziemele, judges
and V. Berger, Section Registrar,

Having deliberated in private on 14 February 2006,

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

PROCEDURE

1.  The case originated in an application (no. 76434/01) 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, Ms Marija Žnidar (“the applicant”) on 3 July 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 she was a party was excessive. In substance, she 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 8 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.

THE FACTS

5.  The applicant was born in 1931 and lives in Škofja vas.

6.  On 6 August 1990 the applicant fell in the Celje community health care centre (the “health centre”) and injured herself. The health centre had taken out insurance with the insurance company ZT.

7.  On 16 December 1993 the applicant instituted civil proceedings against the health centre and Celje Hospital in the Celje Basic Court (Temeljno sodišče v Celju) seeking damages in the amount of 2,111,460 tolars (approximately 8,800 euros) for the injuries sustained, which she unsuccessfully claimed from ZT in the preceding dispute before the same court.

On 5 April 1994 the applicant lodged a preliminary written submission reducing her claim to the amount of 1,561,460 tolars (approximately 8,800 euros).

Between 6 September 1994 and 26 April 1996 she made eight requests that a date be set for a hearing.

On 1 January 1995 the Celje District Court (Okrožno sodišče v Celju) gained jurisdiction in the present case due to the reform of the Slovenian judicial system.

8.  On 28 February 1997 the court declared the case out of its jurisdiction and decided to transfer the case, once the decision became final, to the Celje Local Court (Okranjo sodišče v Celju). The decision was served on the applicant on 10 March 1997.

9.  On 5 June 1997 the applicant added a subsidiary claim in the amount of 2,370,296 (approximately 9,900 euros) to her initial claim.

Consequently, on 10 June 1997 the court declared the case out of its jurisdiction and decided to transfer the case, once the decision became final, to the Celje District Court (Okrožno sodišče v Celju). The decision was served on the applicant on 16 June 1997.

On 17 June 1997 the applicant appealed to the Celje Higher Court (Višje sodišče v Celju).

On 18 December 1997 the court dismissed the appeal. The decision was served on the applicant on 22 January 1998.

10.  Between 8 April and 4 June 1998 the applicant made three requests that a date be set for a hearing. On 31 May and 12 October 1999 she filed preliminary written observations.

Of the three hearings held between 19 November 1998 and 9 November 1999 none was adjourned at the request of the applicant.

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 2 February 2000.

11.  On 4 February 2000 the applicant appealed to the Celje Higher Court. The health centre and Celje Hospital cross-appealed.

On 1 February 2001 the court rejected the applicant’s appeal, allowed the appeals of the opposite parties in part and rejected the applicant’s claim.

The judgment was served on the applicant on 19 April 2001.

12.  On 14 May 2001 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče).

On 10 April 2002 the court dismissed the applicant’s appeal.

The judgment was served on the applicant on 13 May 2002.

13.  On 20 June 2002 the applicant lodged a constitutional appeal.

On 11 May 2004 the Constitutional Court (Ustavno sodišče) dismissed the applicant’s appeal. The decision was served on the applicant on 12 May 2004.

THE LAW

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

14.  The applicant complained about the excessive length of the proceedings. She 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...”

15.  In substance, the applicant further complained that the remedies available for excessive legal proceedings in Slovenia were ineffective. Article 13 of the Convention 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

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

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

18.  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.

19.  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.

20.  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

21.  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 12 May 2004, the day on which the Constitutional Court’s decision was served on the applicant. It therefore lasted nearly nine years and eleven months for four levels of jurisdiction.

22.  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).

23.  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

24.  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.

25.  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

26.  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

27.  The applicant claimed 17,500 euros (EUR) in respect of non-pecuniary damage.

28.  The Government contested the claim.

29.  The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards her EUR 2,000 under that head.

B.  Costs and expenses

30.  The applicant also claimed approximately EUR 1,420 for the costs and expenses incurred before the Court.

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

32.  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

33.  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 2,000 (two thousand 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 9 March 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Vincent Berger John Hedigan 
 
Registrar President


ŽNIDAR v. SLOVENIA JUDGMENT


ŽNIDAR v. SLOVENIA JUDGMENT