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THIRD
SECTION
CASE OF ZORC v. SLOVENIA
(Application
no. 2792/02)
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 Zorc 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. 2792/02) 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 Lojze Zorc (“the applicant”),
on 16 January 2002.
- From
7 June 2004 until 10 May 2006 the applicant was represented before
the Court by Čeferin law firm from Grosuplje, Slovenia.
Otherwise he had no legal representation. 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
proceedings before the domestic courts to which he was a party were
unfair and of unduly long. 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
20 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. Under 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 1954 and lives in Ljubljana.
- At
an undetermined time, he invented a type of fish bait and secured a
patent for production of this bait.
On 17
September 1992 the applicant and J.Z. made a contract to engage in
production of fish baits.
On 24
March 1993 the applicant removed some of the production material and
tools from J.Z.'s premises where the production had been taking
place.
On 7
April 1993 J.Z. requested the applicant to sell him the patent for
the bait, if he wished to keep their business relationship active.
On 16
April 1993 the applicant made an offer to J.Z. to sell him the
patent, which the latter refused.
On 26
April 1993 the applicant informed J.Z. that he wished to end their
business relationship by cancelling the contract of co-operation, but
the latter refused.
1. Proceedings concerning the nuisance claim and the
interim measure
- On
23 April 1993 J.Z. lodged a nuisance claim in the Ljubljana Basic
Court, Ljubljana Unit (Temeljno sodišče v Ljubljani,
Enota v Ljubljani) against the applicant and also sought an
interim measure prohibiting the applicant to use or alienate any
means for production of fish baits.
On 7
June 1993 the court upheld J.Z.'s request for an interim measure in
part.
On 14
June 1993 the applicant replied to the claim and also appealed
against the order issuing the interim measure. J.Z. cross-appealed.
Until
14 June 1994 the court held six hearings. On that day, the court
partially stayed the proceedings because J.Z. had withdrawn the
request for an interim measure in part. The court also allowed the
applicant's appeal and annulled its decision of 7 June 1993.
J.Z.
appealed against this decision to the Ljubljana Higher Court (Višje
sodišče v Ljubljani).
On 28
June 1994 the Convention took effect with respect to Slovenia.
On 21
July 1994 the Ljubljana Higher Court dismissed the appeal concerning
the interim measure.
On 1
January 1995, following the reform of the Slovenian judicial system,
the Ljubljana District Court (Okrožno sodišče v
Ljubljani) gained jurisdiction in the case which was still
pending in the first-instance court in the part referring to the
nuisance claim.
On 20
June 1995 the court upheld J.Z.'s nuisance claim. The judgment was
served on the applicant on 15 November 1995.
- On
22 November 1995 the applicant appealed to the Ljubljana Higher
Court.
On 9
July 1996 the court allowed the appeal and remitted the case to the
first-instance court for re-examination.
- On
10 December 1996 the Ljubljana District Court held a hearing which
was adjourned sine die.
On 10
February 1997, after the applicant had instituted proceedings against
the Republic of Slovenia due to excessive length of proceedings (see
below §§ 11-14), the applicant requested that the case be
transferred to a new court in order to secure the impartiality of the
adjudicator. After his request was dismissed by the Supreme Court
(Vrhovno sodišče) on
29 October 1997, he sought a recusal of the first-instance
court's judge presiding over the case. Also this request was
dismissed, ultimately, by the deputy of the President of the
Ljubljana District Court on 1 September 1999.
On 8
March 2000 the court held a hearing.
On 5
April 2000 the applicant filed preliminary written observations and
adduced evidence.
On 5
April 2000 the court held a hearing and rejected J.Z.'s claim.
- On
14 June 2000 J.Z. appealed to the Ljubljana Higher Court.
On 7
July 2000 the applicant lodged a reply to the appeal.
On 8
January 2002 the court dismissed both appeals.
2. Proceedings referring to the claim for damages
- On
27 January 1997 the applicant instituted civil proceedings in the
Ljubljana District Court against the Republic of Slovenia seeking
damages in the amount of 34,740,000 Slovenian tolars (approximately
145,000 euros) for damages sustained due to excessive length of
proceedings concerning the nuisance claim and interim measure.
On 21
April 1998 the applicant filed preliminary written observations,
raised his claim and requested that a date be set for a hearing.
On 8
January 1998 the court held a hearing.
On 14
December 1998 the court rejected the applicant's claim holding that
the judge in charge of the case in the first-instance, conducted the
proceedings in accordance with the legislation in force. The decision
was served on the applicant on 15 March 1999.
- On
29 March 1999 the applicant appealed to the Ljubljana Higher Court.
On 16
June 1999 the court dismissed the appeal. The judgment was served on
the applicant on 9 July 1999.
- On
28 July 1999 the applicant lodged an appeal on points of law with the
Supreme Court.
On 20
April 2000 the court dismissed the appeal.
- On
30 June 2000 the applicant lodged a constitutional appeal.
On 11
June 2001 the Constitutional Court (Ustavno sodišče)
declared the case inadmissible as it was manifestly ill-founded. The
decision was served on the applicant on 10 July 2001.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE
CONVENTION
- The
applicant complained about the fairness and 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 fair ... 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. He 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.”
A. Admissibility
1. The first set of proceedings
a) Fairness
- In
accordance with the Article 35 of the Convention, the Court may only
consider the complaints raised by the applicant, after the applicant
had 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 Ljubljana Higher Court of
8 January 2002 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 this part of the application must be rejected for
non-exhaustion within the meaning of Article 35 § 1 of the
Convention.
b) Length
- 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.
- As
regards the first set of the proceedings, 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 these complaints are not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. Nor are they inadmissible on any other grounds. They must
therefore be declared admissible.
2. The second set of proceedings
a) Fairness
- The
Court notes that the applicant's complaints amount essentially to an
objection to the outcome of the proceedings before the domestic
judicial authorities and to the errors of interpretation and
application of domestic law allegedly committed by them.
- The Court recalls that while its duty, according to
Article 19 of the Convention, is to ensure the observance of the
engagements undertaken by the Contracting Parties to the Convention,
it is not its function to deal with errors of fact or law allegedly
committed by a national court unless and in so far as they may have
infringed rights and freedoms protected by the Convention. Moreover,
it is primarily for the national administrative and judicial
authorities, notably the courts, to interpret and apply domestic law
(see, inter alia, Streletz, Kessler and Krenz v. Germany
[GC], nos. 34044/96, 35532/97, 44801/98, § 49,
ECHR 2001-II, and Nadbiskupija Zagrebačka v. Slovenia
(dec.), no. 60376/00, 27 May 2004).
- In
the Court's assessment, the national judicial authorities gave
reasoned decisions, addressing all relevant submissions by the
applicant. There is nothing to show that the conclusions of the
national judicial authorities were arbitrary or contrary to the
provisions of domestic law applied by them.
Ultimately,
this application is manifestly ill-founded and must be declared
inadmissible in accordance with Article 35 §§ 3 and 4 of
the Convention.
b) Length
- The
period to be taken into consideration began on 27 January 1997, the
day the applicant instituted proceedings with the Ljubljana District
Court, and ended on 10 July 2001, the day the Constitutional Court's
decision was served on the applicant. It therefore lasted over four
years and five months for four 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).
- Having
examined all the material submitted to it, and having regard to its
case-law on the subject (see Katte Klitsche de la Grange v. Italy,
judgment of 27 October 1994, Series A no. 293 B, §§ 51
- 63), the Court considers that complaint concerning the length of
the second set of the proceedings is manifestly ill-founded and must
be declared inadmissible in accordance with Article 35 §§ 3
and 4 of the Convention.
- The
Court recalls that Article 13 requires the State to provide an
effective legal remedy to deal with the substance of an “arguable
complaint” under the Convention and to grant appropriate relief
(see Sürmeli v. Germany [GC], no.
75529/01, § 98, 8 June 2006). Considering that the
complaint about the excessive length of the proceedings is
inadmissible as manifestly ill-founded, the Court finds that the
applicant did not have an arguable claim that his right to an
effective remedy within the meaning of Article 13 was violated.
Therefore, this claim does not reveal any appearance of violation of
this provision.
Accordingly,
this complaint is manifestly ill-founded and must be declared
inadmissible in the meaning of Article 35 §§ 3 and 4 of the
Convention.
B. Merits
1. Article 6 § 1
- The
Government argued that the proceedings at issue were quite complex
because they concerned a business-related dispute. The courts dealt
with the case in accordance with their statutory authority. Although
the dispute was undoubtedly of great importance for the applicant, it
was not a matter that required priority treatment. Lastly, the
applicant's numerous written submissions contributed to the length of
the proceedings.
- The
applicant contested these arguments and reiterated his view that the
proceedings at issue were exceedingly long.
- In determining the relevant period to be taken into
consideration, the Court notes the proceedings at issue started
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 have 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). The period to be taken into
consideration thus began on 28 June 1994, the day when the
Convention entered into force with respect to Slovenia, and ended on
8 January 2002, the day the Ljubljana Higher Court dismissed the
appeals. It therefore lasted over seven years and six months and 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).
- The
Court acknowledges that the case was of come complexity, but this was
not the result of the applicant's submissions, as the Government
argued. These submissions do not appear numerous nor particularly
complex and did not make the case any more intricate. The court notes
in this respect that the Government did not allege that the applicant
abused any of the procedural rights that conferred to him by the
domestic legislation. Considering this fact and having examined all
the material submitted to it, the Court does not find any delays in
the proceedings which could be attributable to the applicant.
- Even
though there was no singular outstanding delay in the proceedings,
the Court nonetheless finds that the domestic courts, in particular
the first-instance court, could have tried the case more diligently
on the whole. Notably, it took a total of over two years and six
months for the courts to dismiss the applicant's request for the
transfer of the case and the recusal of a judge. Moreover, even when
this procedural issue was resolved it took more than six months
before the first-instance court resumed hearing the case.
- In
the view of these findings and having regard to its case-law on the
subject, the Court considers that in the instant case the length of
the proceedings, in particular before the first-instance court, 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. Pecuniary damage
- The
applicant claimed 590,542 euros (EUR) in respect of pecuniary damage
in the loss of production of the fish baits which he sustained due to
the excessive length of proceedings.
- The
Government left the matter to the Court's discretion.
- The Court does not discern any causal link between the
violation found and the pecuniary damage alleged. It therefore
rejects the claim under this head.
B. Non-pecuniary damage
- The
applicant claimed EUR 43,398 in respect of non-pecuniary damage. The
applicant claimed this damage stemmed from the inactivity of the
domestic courts which, eventually, resulted in his bankruptcy and
four-years' unemployment.
- The
Government left the matter to the Court's discretion.
- The
Court considers that the applicant must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards him EUR 1,000 under
that head.
C. Costs and expenses
- The
applicant also claimed approximately EUR 5,000 for the costs and
expenses incurred before the Court.
- The
Government left the matter to the Court's discretion.
- 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 omitted to itemise particulars of her claims and provide
the necessary supporting documents as required by Rule 60 of the
Rules of Court. Next, the Court notes that the applicant was
represented by a lawyer during a part of the proceedings before the
Court, but is without representation at present.
- The
Court finds that the applicant must have incurred some costs and
expenses in the proceedings. 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 700 for the proceedings before the Court.
D. 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
complaints under Articles 6 §
1 and 13 of the Convention as regards the length of the first set of
proceedings admissible 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 1,000 (one
thousand euros) in respect of non-pecuniary damage and EUR 700 (seven
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;
- 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
