Joze LAZAR v Slovenia - 5953/03 [2011] ECHR 1364 (30 August 2011)

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The European Court of Human Rights (Fifth Section), sitting on 30 August 2011 as a Committee composed of:

Ganna Yudkivska, President,
Boštjan M. Zupančič,
Angelika Nußberger, judges,
and Stephen Phillips, Deputy Section Registrar,

Having regard to the declaration submitted by the respondent Government on 12 August 2010 requesting the Court to strike the application out of the list of cases and the applicants’ heirs’ reply to that declaration,

1. The applicant, Mr JoZe Lazar, was a Slovenian national who was born in 1917 and lived in Dekani. He died on 14 January 2005, in the course of the proceedings before the Court. On 12 June 2007 the applicant’s daughter, Ms Dragica Lazar Šut and his granddaughter, Ms Maja Schutt, informed the Court about the applicant’s death and declared that they wished to pursue the application before the Court as his legal successors. Neither the initial applicant nor his heirs were represented before the Court.

2. The Slovenian Government (“the Government”) were represented by their Agent, Mr L. Bembič, the State Attorney-General.

The facts of the case, as submitted by the parties, may be summarised as follows.

3. On 19 February 1999 the applicant instituted proceedings against Mr M. H. at the Koper Local Court for having removed some ground next to their house retaining wall, which could in the applicant’s opinion collapse anytime. On 2 July 2004 the court delivered a judgment rejecting all the applicant’s claims. The applicant appealed.

5. On 6 June 2005, in the framework of the inheritance proceedings, the Koper Local Court declared the applicant’s daughter, Ms Dragica Lazar Šut and his granddaughter, Ms Maja Schut as the applicant’s only heirs.

6. On 18 April 2006 the Koper Higher Court upheld the judgment of the first-instance court of 2 July 2004 and rejected all the applicant’s claims. The judgment was served on the applicant’s representative on 24 June 2006.

7. In 13 July 2006 the applicant’s daughter, Ms Dragica Lazar Šut and his granddaughter, Ms Maja Schutt lodged an appeal on points of law. On 14 July 2006 the appeal was dismissed by the Koper Local Court because, inter alia, they did not enclose to the appeal the documents certifying that they were legal successors to the applicant. The decision was served on them on 17 August 2006 and 18 August 2006, respectively.

8. On 28 August 2006 Ms Dragica Lazar Šut and Ms Maja Schutt submitted to the court the documents concerning their legal succession to the applicant and appealed against the decision of the Koper Local Court of 14 July 2006. On 24 April 2007 the appeal was rejected by the Koper Higher Court. It also fined Ms Dragica Lazar Šut and Ms Maja Schutt for contempt of court. They appealed to the Supreme Court.

9. On 7 August 2007 the Koper Local Court dismissed the appeal to the Supreme Court because, inter alia, an appeal on points of law to the Supreme Court may only be lodged by a person who has passed the bar exam. Ms Dragica Lazar Šut and Ms Maja Schutt appealed to the Koper Higher Court and also lodged a constitutional appeal.

10. On 3 September 2007 the Constitutional Court dismissed the constitutional appeal for non-exhaustion of domestic remedies. On 11 September 2007 the decision was served on Ms Dragica Lazar Šut and Ms Maja Schutt.

11. On 26 June 2008 the Supreme Court upheld the decision of the Koper Higher Court of 24 April 2007 to fine Ms Dragica Lazar Šut and Ms Maja Schutt for contempt of court. On 15 July 2008 the decision was served on both of them.

12. On 13 January 2009 the Koper Higher Court upheld the decision of the Koper Local Court of 7 August 2007 to dismiss the appeal on points of law for not having been lodged by a person who has passed the bar exam.

13. Section 184 of the Code of Obligations (Obligacijski zakonik, Official Journal no. 83/2001) reads as follows:

“1. The claim for repayment of non-pecuniary damage shall pass to the heirs if it was recognised by a final decision or a written agreement.

2. Under the same conditions, this claim may be the subject of assignment, offset and enforcement.”

14. Moreover, the Act on the Protection of the Right to a Trial without Undue Delay (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Gazette, No. 49/2006 – “the 2006 Act”) became operational on 1 January 2007.

15. Further relevant provisions of the 2006 Act may be found in the Court’s judgment TomaZič v. Slovenia (no. 38350/02, judgment of 13 December 2007, § 23).

16. The initial applicant complained under Article 6 § 1 of the Convention about the length of civil proceedings and under Article 13 of the Convention about the lack of effective remedies in this respect. His heirs also invoked Articles 6 § 1, 13 and 14 of the Convention and claimed that the proceedings were unfair and discriminatory, since their appeals to the Supreme Court and the Constitutional Court were not considered on the merits. Finally, they complained under Article 1 of Protocol No. 1 to the Convention that neither had their house retaining wall been repaired nor the damage compensated.

17. The Court must first examine whether Ms Dragica Lazar Šut and Ms Maja Schutt have legal standing to pursue the application originally lodged by the applicant Mr JoZe Lazar, who died on 14 January 2005, in the course of the proceedings before the Court.

18. On 12 June 2007 the applicant’s daughter, Ms Dragica Lazar Šut, and his granddaughter, Ms Maja Schutt, submitted to the Court documents certifying that that they were the applicant’s heirs and declared that they wished to pursue the application of their father and grandfather before the Court.

19. On 18 September 2009 the Government disputed the standing of the applicant’s heirs before the Court and claimed that since Ms Dragica Lazar Šut and Ms Maja Schutt were late with submitting to the domestic courts the documents certifying their legal succession to the applicant, they gained too late the standing in the domestic proceedings in order to be the victims of its excessive length.

20. In various cases in which an applicant has died in the course of the proceedings the Court has taken into account the statements of the applicant’s heirs or of close members of his family who have expressed the wish to pursue the proceedings before the Court (see, for example, Kovačić and Others v. Slovenia [GC], nos. 44574/98, 45133/98 and 48316/99, §§ 189-192, 3 October 2008, Mlakar v. Slovenia (dec.), no. 30946/02, 12 December 2006 and Trnovšek v. Slovenia (dec.), 20844/03, 1 June 2010). The Court would also point out that the applicant’s legal successor does not need to be himself the victim of the alleged violation of a human right, but that he may continue the application before the Court in the applicant’s stead (see, e.g., Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, 13 December 2000).

21. Regard being had to the fact that Ms Dragica Lazar Šut and Ms Maja Schutt have been confirmed under national law as the only applicant’s heirs, the Court considers that they have a legitimate interest in pursuing the application. The Government’s objection that the applicant’s heirs are not themselves the victims of the alleged violations must therefore be rejected. The Court will accordingly continue to examine the application at the request of Ms Dragica Lazar Šut and Ms Maja Schutt (hereafter: the applicants).

B. Complaints under Articles 6 § 1 and 13 of the Convention as to the length of domestic proceedings

22. The applicants complained about the excessive length of the proceedings. They 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 fair... hearing within a reasonable time by [a] ... tribunal...”

23. They further complained that the remedies available for excessive length of the domestic court proceedings in Slovenia were ineffective. They relied on 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.”

24. From the first submissions of the initial applicant and the other two applicants it followed that the main domestic proceedings terminated with the judgment of the Koper Higher Court of 18 April 2006. However, in their letter of 7 October 2009 the applicants maintained, to the contrary, that the main proceedings were still pending at the Supreme Court. Nevertheless, none of the numerous documents they submitted to the Court supported that claim.

25. On 13 September 2007 the Government were given notice of the application under Rule 54 § 2 (a) of the Rules of Court, in the part concerning the proceedings at the Koper Local Court and the Koper Higher Court which terminated with the judgment of the Koper Higher Court of 18 April 2006, which was served on the applicant’s representative on 24 June 2006. On 27 February 2008 the Government submitted information according to which the proceedings were still pending at the Supreme Court.

26. On 15 April 2009 the application was communicated to the Government under Rule 54 § 2 (b) of the Rules of Court, in the part concerning the length of domestic proceedings and the lack of domestic remedies in this respect.

27. On 18 September 2009 the Government submitted observations, in which they revoked their previous claims that the main domestic proceedings were still pending before the Supreme Court when the 2006 Act entered into force. They clarified that the case had been wrongly registered into the list of cases pending at the Supreme Court and that the mistake was later corrected. The Supreme Court only decided as a second-instance court on the applicants’ appeal with respect to the decision of the Koper Higher Court of 24 April 2007 to fine the applicants for contempt of court. The main proceedings thus indeed terminated with the judgment of the Koper Higher Court of 24 April 2007, by which the court rejected all the applicant’s complaints. The Government also supported their claims with the necessary documents.

28. Following unsuccessful friendly-settlement negotiations, on 12 August 2010 and 11 February 2011 the Government submitted additional observations, in which they informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention. The declaration provided as follows:

3. The Government acknowledges that there has been a violation of the applicant’s right to a trial without undue delay and/or his right to a trial within reasonable time as protected by Article 6 § 1 of the European Convention of Human Rights (hereinafter: the Convention) in the civil proceedings that had been pending before the Koper Local Court (Okrajno sodišče v Kopru) under case no. P 70/99, and its continuation. The proceedings in the relevant case lasted approximately 7 years and 4 months on two levels of jurisdiction.

4. The applicant’s heiresses disagree with the conclusion of a settlement before the Court. The Government proposes to the addressed Court to strike the application out of its list of cases on the basis of Article 37§1 (c) of the Convention. In addition, the Government would like to draw the Court’s attention to its settled case-law in similar cases where the applicants refused to accept just satisfaction offered to them within the national legal system pursuant to the Court’s case-law and to the Convention whereupon the Court considered that the consideration of the application was no longer justified and that the application had to be struck out of its list of cases (see, to that effect, cases Van Houten v. the Netherlands, application no. 25149/03, judgment of 29 December 2005; Kalanyos and others v. Romania, application no. 57884/00, judgment of 26 April 2004; Gergely v. Romania, application no. 57885/00, judgment of 26 April 2007; Association SOS Attentats in Béatrix de Boëry v. France [GC], application no. 76642/01, decision of 4 October 2006, §36 et seq.).

5. Additionally, the Government makes a unilateral statement binding it to pay to the applicant’s heiresses the sum stated in its declaration of 23 June 2010, i.e. EUR 4,800 representing compensation for pecuniary and non-pecuniary damage as well as the costs of the proceedings before the Court, under the following conditions:

The sum shall be payable within three months from the notification of the Court’s decision on the basis of paragraph 1 of Article 37 of the Convention on the protection of human rights and fundamental freedoms. In case the sum shall not be paid from the expiry of the above-mentioned three months 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.

29. By a letter dated 3 March 2011 the applicants urged the Court not to strike the application out of its list of cases and repeated their previous claims concerning the alleged violations of their rights under the Convention.

30. The Court observes at the outset that the parties were unable to agree on the terms of a friendly settlement of the case. It recalls that, according to Article 38 § 2 of the Convention, friendly-settlement negotiations are confidential and that Rule 62 § 2 of the Rules of Court further stipulates that no written or oral communication and no offer or concession made in the framework of the attempt to secure a friendly settlement may be referred to or relied on in contentious proceedings. However, the unilateral declaration was made by the Government on 12 August 2010 outside the framework of the friendly-settlement negotiations.

31. The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

“However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

32. The Court also recalls that in certain circumstances, it may strike out an application under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued. To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law (Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; Meriakri v. Moldova (striking out), no. 53487/99, 1 March 2005; Swedish Transport Workers Union v. Sweden (striking out), no. 53507/99, 18 July 2006, and Van Houten v. the Netherlands (striking out), no. 25149/03, ECHR 2005 IX; Zajc and 4 Others v. Slovenia (dec.), nos. 13992/03, 33814/03, 37190/03, 3088/03 and 38847/04, 6 May 2008).

33. The Court notes that it has specified in a number of cases the nature and extent of the obligations which arise for the respondent State under Articles 6 and 13 of the Convention as regards the guarantees of the right to a trial within a reasonable time and the requirement of an effective remedy capable of providing appropriate redress for the damage resulting from the breach of this right (see, among many others, Cocchiarella v. Italy [GC], no. 64886/01, §§ 86-98, ECHR 2006-...; Kudła v. Poland [GC], no. 30210/96, ECHR 2000 XI; Krasuski v. Poland, no. 61444/00, ECHR 2005 ... (extracts); Arsović & 4 Others v. Slovenia (dec.), nos. 24030/06, 24108/06, 25084/06, 25101/06 and 25181/06, 17 February 2009). In this connection the Court reiterates that there is a strong but rebuttable presumption that excessively long proceedings will occasion non-pecuniary damage (Scordino v. Italy (no. 1) [GC], no. 36813/97, § 204, ECHR 2006 .... ) and that the characteristics of sufficient redress relates also to the amount awarded in respect of such damages (Scordino, cited above, § 202). Where the Court has found a breach of these Articles it has awarded just satisfaction, the amount of which depended on the particular circumstances of the case.

34. Having regard to the nature of the admissions contained in the Government’s unilateral declaration, as well as the amount of compensation proposed (which can be considered reasonable in comparison with the Court’s awards in similar cases), the Court considers that it is no longer justified to continue the examination of this part of the application (Article 37 § 1 (c)) (see, for the relevant principles, Tahsin Acar as cited above; Riis v. Norway (dec.), no. 23106/02, 8 July 2004; Van Houten, cited above, and, by contrast, Wawrzynowicz v. Poland, no. 73192/01, §§ 40 and 41, 17 July 2007).

35. In the light of all the above considerations, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this part of the application (Article 37 § 1 in fine).

36. Accordingly, this part of the application should be struck out of its list of cases.

C. Complaints under Article 6 § 1 as to the right to a fair hearing, Article 13 (right to an appeal on points of law and a constitutional appeal), Article 14 and Article 1 of Protocol No. 1 to the Convention

37. The applicants also complained that the proceedings were unfair and discriminatory because their appeals to the Supreme Court and the Constitutional Court were never considered on the merits. They consider therefore that they were denied access to the Supreme Court and the Constitutional Court.

38. The Court reiterates its established case-law according to which Article 6 § 1 does not guarantee a right of appeal as such. However, where several levels of jurisdiction do exist, each instance must comply with the guarantees of Article 6, including the right of effective access to court (see Brualla Gómez de la Torre v. Spain, judgment of 19 December 1997, Reports of Judgments and Decisions 1997-VIII, p. 2956, § 37). Moreover, appellants must be able to exercise usefully the rights of appeal available to them (see Hadjianastassiou v. Greece, judgment of 16 December 1992, Series A no. 252, p. 16, § 33 and Marpa Zeeland B.V. and Metal Welding B.V. v. the Netherlands, no. 46300/99, § 48, ECHR 2004-X).

39. The Court observes that in the present case the decisions of the domestic courts to dismiss the applicants’ appeals to the Supreme Court and the Constitutional Court were based on the finding that they were not lodged in accordance with applicable rules of domestic law, in particular the requirement of representation before the Supreme Court by a person who has passed the bar exam and the requirement of submitting a proof of having a legal standing before the court as a legal successor to the initial claimant.

40. The Court therefore considers that the applicants had not been prevented from exercising effectively their rights to appeal, but had failed to comply with the formal requirements laid down in the domestic law, which did not impair the essence of their right to a court (see, e.g., Koch v. Germany (dec.), no. 38082/04, 8 January 2008).

41. The complaints under Article 6 § 1 (unfair trial), Article 13 and Article 14 should therefore be declared as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and rejected in accordance with Article 35 § 4 of the Convention.

42. In substance, the initial applicant and later the other two applicants also invoked Article 1 of Protocol No. 1 with respect to the damage caused to their house retaining wall.

43. The Court notes that these complaints were rejected by the Koper Higher Court, which on 18 April 2006 upheld the judgment of the first instance court. The Court also refers to its above finding that the applicants did not properly exhaust further domestic remedies at their disposal in that they did not raise their complaints in an appeal on points of law and a constitutional appeal in accordance with the requirements of domestic law.

44. It follows that their complaints under Article 1 of Protocol No. 1 must be considered inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention and rejected in accordance with Article 35 § 4 of the Convention.

Takes note of the terms of the respondent Government’s declaration and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike the application concerning the complaints about the length of domestic proceedings under Articles 6 § 1 and 13 of the Convention out of its list of cases in accordance with Article 37 § 1 (c) of the Convention;

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You are here: BAILII >> Databases >> European Court of Human Rights >> Joze LAZAR v Slovenia - 5953/03 [2011] ECHR 1364 (30 August 2011) URL: http://www.bailii.org/eu/cases/ECHR/2011/1364.html Cite as: [2011] ECHR 1364