BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
THIRD
SECTION
CASE OF NOSE v. SLOVENIA
(Application
no. 21675/02)
JUDGMENT
STRASBOURG
21 December 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 Nose v. Slovenia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr C. Bîrsan,
President,
Mr B.M. Zupančič,
Mr V.
Zagrebelsky,
Mrs A. Gyulumyan,
Mr David Thór
Björgvinsson,
Mrs I. Ziemele,
Mrs I.
Berro-Lefèvre, judges,
and Mr V. Berger, Section
Registrar,
Having deliberated
in private on 30 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 21675/02) 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 JoZef Nose (“the applicant”),
on 22 May 2002.
- Since
11 July 2006, the applicant was
represented by the Verstovšek lawyers.
The Slovenian Government (“the Government”)
were represented by their Agent, Mr L. Bembič, State
Attorney-General.
- 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).
- On
14 December 2005 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 examine the merits of the application at the same time as
its admissibility.
THE FACTS
- The
applicant was born in 1953 and lives in Kamnik.
- In
early 1990s the applicant established a company called Hipec d.o.o.,
which bought a shop in DomZale, Slovenia. On 25 November 1993 a fire
broke out in the building where the shop was located. The shop's
premises and their contents were destroyed.
- On
18 August 1995 the applicant and Hipec instituted civil proceedings
in the Ljubljana District Court (OkroZno
sodišče v Ljubljani) against five companies
who had built the premises where the applicant had his shop and had
been responsible for the maintenance of the building. They were
seeking damages in the amount of 160.770.941,20 tolars (approximately
670.000 euros) for the destruction caused by the fire.
None
of the thirteen hearings held between 14 February 1996 and 20
September 2000 was adjourned at the request of the applicant. At the
hearings, the court heard seven witnesses.
Between
23 February 1996 and 14 June 2000 the applicant lodged fourteen
preliminary written submissions and/or adduced evidence. He withdrew
the claims against two of the respondents. In this time, the
respondents lodged twenty-seven written submissions.
During
this time the applicant made seven requests that a date be set for a
hearing or that the court continue examining the case.
In
the course of the proceedings the court appointed a fire-safety
expert. Since the originally appointed expert had moved to an unknown
address, a new expert was appointed. The court also heard the
appointed expert and requested him to submit two amendments to his
opinion.
At
the last hearing the court decided to issue a written judgment. The
judgment, dismissing the applicant's claim, was served on the
applicant on 22 November 2000.
- On
28 November 2000 the applicant appealed to the Ljubljana Higher Court
(Višje sodišče v Ljubljani).
On 21
August 2001 the applicant's company Hipec d.o.o. ceased to exist and
was deleted from the Register of Companies.
On 12
July 2002 the court allowed the appeal in part, set aside a part of
the first-instance court's judgment and remitted the case for fresh
examination.
- On
22 January 2003 the Ljubljana District Court held a hearing in the
proceedings pending against three respondents.
Between
22 January 2003 and 18 November 2005 the applicant lodged nine
preliminary written submissions and/or adduced evidence. The
respondents lodged seven preliminary submissions.
He
also made a request for priority treatment of his case, which was
upheld.
None
of the seven hearings held between 19 March 2003 and 18 January 2006
was adjourned at the request of the applicant.
In
the course of the proceedings the court appointed a fire-safety
expert. The court also sought an additional opinion from the
appointed expert.
The
court also appointed a financial expert, who was dismissed at the
applicant's request, because the expert had participated in the
criminal investigation following the burning down of the building at
issue. The court appointed a new financial expert.
At
the last hearing the court decided to issue a written judgment. The
judgment, dismissing the applicant's claim, was served on the
applicant on 16 February 2006.
- On
23 February 2006 the applicant appealed to the Ljubljana Higher
Court.
The
proceedings are still pending.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE
CONVENTION
- 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...”
- 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
- The
Government pleaded non-exhaustion of domestic remedies.
- The
applicant contested that argument, claiming that the remedies
available were not effective.
- The
Court notes that the present application is similar to the cases of
Belinger and Lukenda (see 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.
- 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.
- 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
- The
period to be taken into consideration began on 18 August 1995, the
day the applicant instituted proceedings with the Ljubljana District
Court, and has not yet ended. The relevant period has therefore
lasted over eleven years and three months for two levels of
jurisdiction. Due to a remittal, four instances have been involved.
- 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).
- First,
the Court, noting all the circumstances of the present case, finds
the impugned proceedings somewhat complex.
- Next,
the Court observes that the first instance court held in total
twenty-one hearings. Even so, some noticeable delays occurred in the
proceedings. For example, nearly one year and three months elapsed
between the eight and the ninth hearing; and over one year and six
months between the nineteenth and the twentieth hearing.
- 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
- 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.
- 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
- 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
- The
applicant claimed 25,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government contested the claim.
- The
Court considers that the applicant must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards him EUR 2,400 under
that head.
B. Costs and expenses
- The
applicant also claimed EUR 4,000 for the costs and expenses incurred
before the Court.
- The
Government argued that the claim was too high.
- 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 notes that the applicant had legal representation
only during a part of the proceedings. 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 600 for the proceedings before the
Court.
C. Default interest
- 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
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
13 of the Convention;
- 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 2,400 (two
thousand four hundred euros) in respect of non-pecuniary damage and
EUR 600 (six hundred 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 21 December 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Vincent
Berger Corneliu Bîrsan
Registrar President
