(Application no. 77542/01)
9 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 Kumer 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:
1. The case originated in an application (no. 77542/01) 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 Silva Kumer (“the applicant”), on 3 December 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 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 1948 and lives in Celje.
6. On 10 February 1994 the applicant was injured in an accident at work in the Celje Local Court (Okrajno sodišče v Celju). The applicant’s employer had taken out insurance with the insurance company ZT.
7. On 20 February 1995 the applicant instituted civil proceedings against ZT in the Celje Local Court seeking damages in the amount of 1,586,610 tolars (approximately 6,600 euros) for the injuries sustained.
On 30 March 1995 the Supreme Court (Vrhovno sodišče) transferred the case to the Ptuj Local Court (Okrajno sodišče na Ptuju), since the applicant was an employee of the Celje Local Court.
Between 8 June 1996 and 25 September 1997 the applicant made six requests that a date be set for a hearing.
On 20 February 1997 the court held a hearing.
On 17 March 1997 the applicant lodged preliminary written submissions.
On 25 March 1997 the court appointed a medical expert.
On 24 October 1997 the applicant increased her claim to 3,136,610 tolars (approximately 13,000 euros).
On 8 January 1998 the court declared the case out of its jurisdiction and the case was transferred to the Ptuj District Court (Okrožno sodišče na Ptuju)
Between 18 February 1998 and 3 May 1999 the applicant made five requests that a date be set for a hearing.
Between 6 March 1998 and 1 September 1999 she lodged three preliminary written submissions and/or adduced evidence.
Of the three hearings held between 27 November 1998 and 6 September 1999 none was adjourned at the request of the applicant.
During the proceedings the court appointed two medical experts who also appeared before the court.
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 17 September 1999.
8. On 27 September 1999 the applicant appealed to the Maribor Higher Court (Višje sodišče v Mariboru). ZT cross-appealed.
On 11 September 2002 the court allowed the applicant’s appeal in part dismissed the ZT’s appeal.
The judgment was served on the applicant on 4 July 2002.
9. On 10 July 2002 the applicant lodged an appeal on points of law with the Supreme Court.
On 29 May 2003 the court dismissed the applicant’s appeal.
The judgment was served on the applicant on 26 June 2003.
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION
10. 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...”
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.
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. 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
17. The period to be taken into consideration began on 20 February 1995, the day the applicant instituted proceedings with the Celje Local Court, and ended on 26 June 2003, the day the Supreme Court judgment was served on the applicant. It therefore lasted over eight years and five months for three levels of jurisdiction.
18. 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).
19. 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
20. 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.
21. 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 her right to have her case heard within a reasonable time, as set forth in Article 6 § 1.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
22. 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.”
23. The applicant claimed 12,000 euros (EUR) in respect of non-pecuniary damage.
24. The Government contested the claim.
25. The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards her EUR 3,200 under that head.
B. Costs and expenses
26. The applicant also claimed approximately EUR 1,740 for the costs and expenses incurred before the Court.
27. The Government argued that the claim was too high.
28. 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
29. 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
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 9 March 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Vincent Berger John Hedigan
KUMER v. SLOVENIA JUDGMENT
KUMER v. SLOVENIA JUDGMENT