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THIRD
SECTION
CASE OF OLENIK v. SLOVENIA
(Application
no. 4225/02)
JUDGMENT
STRASBOURG
2 November 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 Olenik 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 C. Bîrsan,
Mr V.
Zagrebelsky,
Mrs A. Gyulumyan,
Mr David Thór
Björgvinsson,
Mrs I. Ziemele, judges,
and
Mr V. Berger, Section Registrar,
Having
deliberated in private on 12 October 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 4225/02) 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, Ms Suzana Olenik (“the applicant”),
on 23 November 2001.
- 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 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). In
addition, the applicant complained under Article 6 § 1 of the
Convention about the unfairness of the proceedings. Lastly, she
claimed that the attitude of the courts to which she was subjected
breached her rights protected by Article 3 of the Convention.
- On
13 September 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 rule on the admissibility and merits of the application at
the same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1967 and lives in Pobegi.
- On
2 October 1992 the applicant was injured in a car accident. The
perpetrator of the accident had taken out insurance with the
insurance company ZA.
- On
26 January 1994 the applicant instituted civil proceedings against ZA
in the Koper Basic Court, Koper Unit (Temeljno sodišče
v Kopru, Enota v Kopru) seeking damages in the amount of
1,548,050 tolars (approximately 6,450 euros) for the injuries
sustained.
On 28
June 1994 the Convention entered into force with respect to Slovenia.
On 19
July 1994 the applicant requested that a date be set for a hearing.
On 14
October 1994 the court held a hearing and heard the applicant.
On 28
November 1994 the court held a hearing. Since the witness, a police
officer, summoned to the hearing did not appear and because a reform
of the judicial system was planned, the hearing was adjourned sine
die.
On 1
January 1995 the Koper Local Court (Okrajno sodišče v
Kopru) gained jurisdiction in the case due to the reform of the
Slovenian judicial system.
On 17
February 1995 the court held a hearing, heard a witness, the police
officer, and decided to appoint a medical expert.
On 2
March 1995 the court appointed a medical expert and gave him a period
of thirty days to deliver an opinion.
On 13
June and 3 July 1995 the court urged the expert to deliver the
opinion which he did on 10 July 1995.
On 25
August 1995 the court held a hearing and, upon the request of the
applicant, decided to seek an additional opinion from the appointed
expert.
On 1
December 1995 the expert submitted an additional opinion.
At an
undetermined time, but before 12 August 1996, and for an unknown
reason, the case was transferred to a different judge.
On 5
May 1999 the court held a hearing. At the hearing the applicant
increased her claim. For this reason, the court decided that the case
was no longer within its jurisdiction and it was accordingly
transferred to the Koper District Court (Okrožno sodišče
v Kopru).
On 11
November 1999 the court held a hearing.
On 16
December 1999 the court held another hearing and heard the appointed
expert. The court decided to deliver a written judgment.
On 22
December 1999 the court delivered a judgment dismissing the
applicant's claim.
- On
12 January 2000 the applicant appealed to the Koper Higher Court
(Višje sodišče v Kopru). She was
represented by her father who was not a practicing lawyer.
On 9
March 2000 the applicant requested the court to consider that she
lodged an appeal of 12 January 2000 herself and that she had no legal
representation.
On 30
January 2001 the court dismissed the appeal. The judgment was served
on the applicant on 6 September 2001.
The
applicant did not lodge further remedies against the Koper Higher
Court judgment.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The 1991 Constitution
- Article 26 of the Constitution of the Republic of
Slovenia (Ustava Republike Slovenije) reads as follows:
“Everyone shall have the right to compensation
for damage caused by the unlawful acts of a person or body when
performing a function or engaged in an activity on behalf of a state
or local authority or as a holder of public office. ...”
B. The Code of Obligations 2001
- If
a court is responsible for undue delay in the proceedings and an
individual has sustained pecuniary damage as a result, he or she may
claim compensation from the State under the Code of Obligations 2001
(Obligacijski zakonik). The person seeking compensation will
thus have to prove, firstly, that there has been a delay in the
proceedings; secondly, that damage has occurred and, thirdly, that
there is a causal link between the conduct of the court and the
damage sustained.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE
CONVENTION
- 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...”
- 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
Government argued that the period to be taken into consideration
began to run on 28 June 1994, the day the Convention entered into
force with respect to Slovenia and ended on 30 January 2001, the day
the Koper Higher Court dismissed the applicant's appeal. The
proceedings to which the applicant was a party were somewhat complex
since the first-instance court had to examine the file of the
misdemeanours' judge, hear two witnesses and appoint a medical
expert. The court tried the case with all due diligence needed in
such proceedings. The applicant, however, contributed to the length
of proceedings by increasing her claim only five years after the
proceedings had been instituted. Also the fact that she needed to
amend her appeal, because it was initially lodged by an incompetent
person, contributed to some extent to a delay in the proceedings. The
Government conceded, however, that what was at issue in these
proceedings was of some importance to the applicant.
- The
applicant contested the Government's arguments. She claimed that the
relevant period ended on 6 September 2001, the day the Koper Higher
Court's judgment was served on her. In addition, the proceedings were
not at all complex and she did all she could to speed them up.
- The
Court recalls that for the purposes of Article 6 § 1 of the
Convention, the relevant period in the civil proceedings generally
commences to run on the day of the institution of the proceedings
concerning the determination of a dispute over the applicant's civil
rights and obligations. This period terminates, in principle, with
the last decision delivered in the domestic courts which has become
final or, where later, when the written judgment is served on the
applicant (see, e.g., Unión Alimentaria Sanders S.A. v.
Spain, judgment of 7 July 1989, Series A no. 157, § 30).
- The proceedings at issue in the present case were
instituted before 28 June 1994, the day the Convention took
effect with respect to Slovenia. Given its jurisdiction ratione
temporis, the Court can only consider the period which has
elapsed since this day, although it will have regard to the stage
reached in the proceedings in the domestic courts on that date (see,
for instance, Belinger, cited above, and Kudła v.
Poland [GC], no. 30210/96, § 123, ECHR
2000 XI).Therefore, the period to be taken into consideration
began on 28 June 1994, the day when the Convention entered into force
with respect to Slovenia.
- The
Court notes that the last decision in the proceedings before the
domestic courts was issued on 30 January 2001. However, since this
decision was communicated to the applicant only on 6 September 2001,
it was then when the relevant period ended. The period to be taken
into consideration therefore lasted over seven years and two months
for two levels of jurisdiction.
- 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).
- The
Court finds that the proceedings at issue were of no considerable
complexity. Notwithstanding the
Government's argument, the Court does not find that the applicant's
amendment of the claim contributed in a significant manner to
the length of the proceedings. Moreover, the Court does not
accept the Government's argument that the courts dealt with the case
diligently since, for example, the proceedings came to a standstill
for nearly two years and nine months after the case was transferred
to a new judge. Likewise, the Government made no comments as to the
period of over six months which elapsed before the judgment of the
Koper Higher Court was served on the applicant.
- 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 her right to have her case heard within a reasonable time,
as set forth in Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLES 3 AND 6 § 1 OF THE
CONVENTION
- The
applicant complained about the unfairness 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 fair and public hearing...
by [a] ... tribunal...”
- The
applicant also complained that she was unfairly criticized by the
domestic courts. She relied on Article 3 of the Convention, which
reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
- In
accordance with the Article 35 of the Convention, the Court may only
consider the complaints raised by the applicant, after the applicant
has exhausted all domestic remedies.
- In
this respect the Court notes that the applicant did not lodge any
kind of appeal against the judgment of the Koper Higher Court to the
Supreme Court of the Republic of Slovenia and, subsequently, to the
Constitutional Court of the Republic of Slovenia.
- Moreover,
an examination of the case as it has been submitted does not disclose
the existence of any special circumstances which might have absolved
the applicant, according to the generally recognised rules of
international law, from raising her complaints before the said
domestic courts.
It
follows that the domestic remedies were not exhausted within the
meaning of Article 35 § 1 of the Convention.
- In
any event, as to the complaints made under Article 3, the Court notes
that the applicant failed to produce evidence demonstrating that the
treatment complained of reached the threshold of severity required to
bring it within the scope of Article 3 of the Convention.
This
part of the application must be rejected as manifestly ill-founded in
accordance with Article 35 § 4 of the Convention.
III. 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 approximately 45,480 euros (EUR) in respect of
pecuniary damage. She claimed that this amount of damages is
imputable to the other driver involved in the car accident, as was
established by the court-appointed expert. However, by the time the
court appointed the expert, the statute of limitations had passed and
the applicant could no longer claim damages from the allegedly
responsible individual.
- The
Government considered this claim as a claim for non-pecuniary damage.
They argued that the claim for just satisfaction was neither duly
specified nor substantiated by the documents in the case-file and
must therefore be rejected (Mitchell and Holloway v. the United
Kingdom, no. 44808/98, § 69, 17 December 2002). In any
event, the claim was exaggerated.
- The
Court observes that the applicant, claiming to have suffered material
damages due to an excessive delay in proceedings can, under Article
26 of the Constitution and the provisions of the Code of Obligations
2001 (see paragraphs 9 and 10 above), institute civil proceedings
against the State seeking compensation for these damages. The court
has already found that this remedy is in principle effective (see
Lukenda, cited above, § 59).
- In
the present case, the applicant neither availed herself of the said
remedy, nor alleged that this remedy was ineffective in the
circumstances of her case. The applicant thus failed to exhaust
domestic remedies.
Accordingly,
her claim for pecuniary damage must be declared inadmissible.
B. Costs and expenses
- The
applicant, who was not represented by a lawyer, also claimed
approximately EUR 210 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. 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 full sum claimed.
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 admissible the complaints under
Articles 6 § 1 and 13 of the Convention (length of the
proceedings) and the remainder of the application inadmissible;
- 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 210 (two
hundred and ten 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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 2 November 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Vincent
Berger John Hedigan
Registrar President
