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THIRD
SECTION
CASE OF UMEK v. SLOVENIA
(Application
no. 35463/02)
JUDGMENT
STRASBOURG
8 January
2009
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 Umek v. Slovenia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Elisabet Fura-Sandström,
Boštjan
M. Zupančič,
Alvina Gyulumyan,
Egbert
Myjer,
Ineta Ziemele,
Ann Power, judges,
and
Santiago Quesada, Section
Registrar,
Having
deliberated in private on 2 December 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 35463/02) 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, Mrs Darija
Umek (“the applicant”), on 20 August 2002.
- The
applicant was represented by Mr Golovrški, a
lawyer practising in Ljubljana. The
Slovenian Government (“the Government”) were represented
by their Agent, Mr L. Bembič, State Attorney-General.
- The
applicant alleged, inter alia, 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 and, under Article 13
of the Convention, that no effective domestic remedy was available in
respect of the length of the proceedings.
- On
28 September 2006 the
Court decided to communicate the complaints concerning the length of
the proceedings and the lack of remedies in that respect to the
Government. According to Article 29 § 3 of the Convention, it
decided to examine the merits of the application at the same time as
its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1954 and lives in Litija.
- Since
1979 the applicant was engaged as a typist at Slovenian Railways –
“SZ” (Slovenske Zeleznice).
In 1983 a fire broke out on the premises. However, the work continued
in the offices that were not directly affected by the fire. In 1984
the applicant was diagnosed as suffering from asthma and was advised
to avoid dust and contact with certain material. She subsequently
received daily injections. In 1985 she was recognised as suffering
from level three invalidity. Subsequently, she was transferred to an
administrative post. In August 1985 she stopped working, only
returning for a period of eight days in 1988. In 1990 she retired
owing to her invalidity.
- On
23 November 1989 the applicant lodged a claim for compensation and
loss of earnings against SZ.
- On
31 October 1991 the second-instance court upheld a judgment by the
Ljubljana Court of Associated Labour (Sodišče
zdruZenega dela v Ljubljani) that partly rejected the
applicant's claim for compensation against SZ. On 24 April 1992 the
Ljubljana Court of Associated Labour decided the remainder of her
claim.
Several
hearings were held in the above proceedings.
- On
19 November 1993 the applicant lodged a request for the reopening of
the proceedings on the basis of new evidence, in particular new
scientific findings concerning the effect on the respiratory system
of certain gaseous emissions during a fire. The request was upheld on
14 February 1994.
- On
28 June 1994 the Convention entered into force in respect of
Slovenia.
-
On 5 July 1994 SZ lodged an appeal, which was rejected on 17 October
1995 by the Higher Labour and Social Court. On the latter date the
decision to reopen the case became final and the proceedings were
subsequently reopened.
- On
25 November 1996 the court appoint an expert, which produced a report
on 26 March 1997.
Between
9 January 1996 and 27 May 1997 the court held 7 hearings.
On 27
May 1997 the renamed Ljubljana Labour and Social Court (Delovno in
socialno sodišče v Ljubljani) delivered an interim
judgment in which it found SZ liable for the damage caused by the
work-related disease – bronchial asthma.
- On
9 September 1997 SZ appealed to the Higher Labour and Social Court
(Višje delovno in socialno sodišče).
On 18
December 1997 the court allowed the appeal on the grounds, inter
alia, that the interim judgment contained insufficient reasoning,
and remitted the case to the first-instance court for re-examination.
- In
the re-examination proceedings, the expert produced an additional
opinion on 18 June 1998.
- The
court held five hearings between 24 February 1998 and 23 March
1999.
On 23
March 1999 the first-instance court delivered an interim judgment in
which it found SZ liable for 50% of the damages suffered by the
applicant due to the asthma.
- Both
parties appealed.
On 19
November 1999 the Higher Labour and Social Court delivered a judgment
rejecting the applicant's claim for compensation.
- On
16 February 2000 the applicant lodged an appeal on points of law with
the Supreme Court (Vrhovno sodišče).
On 10
October 2000 the Supreme Court allowed the applicant's appeal on the
grounds that the law had been wrongly applied, with the result that
the facts had not been established sufficiently. It quashed the lower
courts' judgments and remitted the case to the first-instance court
for re-examination.
- In
the re-examination proceedings, the applicant replied to two sets of
submissions by SZ.
Hearings
were held on 20 June, 10 October and 5 December 2001 and 31 January
2002.
On 31
January 2002 the Ljubljana Labour and Social Court delivered an
interim judgment in which it found SZ liable for 70% of the damage
suffered by the applicant due to the asthma. The judgment was served
on the applicant on 25 February 2002.
- Both
parties appealed.
On 26
September 2002 the Higher Labour and Social Court allowed the appeals
on the grounds of, inter alia, insufficient reasoning and
again remitted the case to the first-instance court for
re-examination.
- On
30 January 2003 a hearing was held. On the same date the
first-instance court requested the Faculty of Medicine to prepare an
expert report. The expert appointed by the Faculty produced the
report on 4 February 2004.
A
request lodged by SZ on 10 February 2004 for the expert to stand down
was rejected by the court on 18 March 2004.
On 4
May 2004 the court received a reply from the expert to the
defendant's objections to the findings in the report.
On 14
September 2004 the court held a hearing and delivered a judgment
rejecting the applicant's claim which was served on the parties on
21 October 2004.
- On
2 November 2004 the applicant appealed.
On 27
January 2005 the Higher Labour and Social Court rejected the appeal.
- On
17 March 2005 the applicants lodged an appeal on points of law.
On 17
January 2006 the Supreme Court delivered a judgment rejecting the
appeal on points of law. This judgment was served on the applicant on
25 January 2006.
- In
the course of the proceedings, the applicant sent numerous requests
and complaints concerning the length of the proceedings to the
relevant courts and various public bodies, including the Ombudsman
for Human Rights (Varuh človekovih pravic).
- On
31 March 2006 the applicant lodged a constitutional appeal
complaining of the unreasonable length of the proceedings and the
lack of a remedy.
On 3
July 2006 the Constitutional Court rejected her appeal after finding
that she should have made a claim for damages under Article 26 of the
Slovenian Constitution.
II. RELEVANT DOMESTIC LAW
- The
Act on the Protection of the Right to a Trial without Undue Delay
(Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja,
Official Journal, No. 49/2006) has been implemented since 1
January 2007. Under its sections 1 and 2, the right to a trial
within a reasonable time is guaranteed for a party to court
proceedings, a participant under the Act governing non-contentious
proceedings and an injured party in criminal proceedings.
- Section
25 lays down the following transitional rules in relation to
applications already pending before the Court:
Section 25 - Just satisfaction for damage sustained
prior to implementation of this Act
“(1) In cases where a violation of the right to a
trial without undue delay has already ceased and the party had filed
a claim for just satisfaction with the international court before the
date of implementation of this Act, the State Attorney's Office shall
offer the party a settlement on the amount of just satisfaction
within four months after the date of receipt of the case referred by
the international court for the settlement procedure. The party shall
submit a settlement proposal to the State Attorney's Office within
two months of the date of receipt of the proposal of the State
Attorney's Office. The State Attorney's Office shall decide on the
proposal as soon as possible and within a period of four months at
the latest. ...
(2) If the proposal for settlement referred to in
paragraph 1 of this section is not acceded to or the State Attorney's
Office and the party fail to negotiate an agreement within four
months after the date on which the party filed its proposal, the
party may bring an action before the competent court under this Act.
The party may bring an action within six months after receiving the
State Attorney's Office reply that the party's proposal referred to
in the previous paragraph was not acceded to, or after the expiry of
the period fixed in the previous paragraph for the State Attorney's
Office to decide to proceed with settlement. Irrespective of the type
or amount of the claim, the provisions of the Civil Procedure Act
concerning small claims shall apply in proceedings before a court.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE
CONVENTION
- The
applicant complained of the 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...”
- The
applicant further complained that the remedies available in respect
of the length of legal proceedings in Slovenia were ineffective. She
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
- The
Government pleaded non-exhaustion of domestic remedies. They referred
to the remedies which had been available to individuals before the
Act on the Protection of the Right to a Trial without Undue Delay
(the “2006 Act”) became operational, that is 1 January
2007. In addition they submitted that the 2006 Act afforded effective
remedies for length-of-proceedings complaints.
- The
applicant contested that argument, claiming that the remedies
available were not effective.
- The Court notes that it has already found that the
remedies available prior to the entry into force of the 2006 Act,
including a claim for damages under Article 26 of the Slovenian
Constitution (see paragraph 24 above), cannot be considered effective
(Lukenda v. Slovenia, no. 23032/02, ECHR 2005 X). As
regards the remedies available under the 2006 Act, the Court notes
that section 25 of that Act expressly refers to proceedings before
international courts and provides for certain remedies in respect of
domestic proceedings which terminated before 1 January 2007. However,
the Court found in the Grzinčič judgment that the
conditions laid down in that section had not been fulfilled in
respect of applications concerning terminated proceedings which had
been notified to the Slovenian Government before 1 January 2007,
as in the present case (see Grzinčič v. Slovenia,
no. 26867/02, § 67, 3 May 2007).
- The
Court therefore notes that the present application is similar to that
examined in the relevant part of the Grzinčič
judgment (cited above, § 68), in which 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 finds that the Government have not submitted any convincing
arguments which would require the Court to depart 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
(a) The parties' arguments
- The
applicant argued that her case could not be regarded as a
particularly complex one. The factual issue concerning a casual link
between the accident and the deterioration of her health had been
dealt with by the experts, while the legal issues were of no
particular complexity. Referring to the Court's case-law, she argued
that the repeated orders for the re-examination of the case within a
single set of proceedings indicated a serious deficiency in the
judicial system. Likewise, the length of the proceedings and the
remittals of the case brought about, inter alia, complications
such as changes in the composition of the court hearing the case.
- As
regards her conduct in the proceedings, the applicant submitted that
she had not taken any unusual steps and was not to blame for the
delays, especially as the case was of a great importance to her.
- The
Government disputed the applicant's submissions. Referring to the
Court's case-law on the subject, they argued that Article 6 did not
apply to proceedings which determined whether the case was to be
re-opened or not. Accordingly, that part of the proceedings, ending
with the decision of 17 October 1995, was not to be taken into
account when calculating the relevant period.
- They
argued that the case had been very complex both factually and
legally. In the course of the proceedings two expert reports and two
additional opinions had been obtained. In addition, the domestic
court had held 19 hearings after the re-opening of the case.
- As
regards the conduct of the domestic authorities, the Government
submitted that the courts had completed the proceedings as quickly as
possible. They submitted that the State could not be held responsible
for delays caused by the remittal of the case as a result of the
parties' use of remedies. Referring to Article 53 of the Convention,
they argued that using the appeals procedure was an exercise of a
fundamental right guaranteed by the Slovenian Constitution. The
rights to a trial within a reasonable time and to appeal were often
in conflict; in order to strike a balance, the Court had to accept
that the duration of the proceedings in cases where the applicants
had availed themselves of remedies was inevitably longer. Further,
the higher courts were bound by domestic law to remit a case for
re-examination if the nature of the errors committed by the lower
courts so required. In that connection, the Government referred to
the Court's case-law affirming that the domestic courts were in the
best position to assess whether a case should be remitted to the
lower court for re-examination.
- As
regards the conduct of the applicant, the Government argued that she
had contributed to the length of the proceedings and that her
recourse to remedies showed that she was not interested in a prompt
processing of her case.
(b) The Court's assessment
41. The Court notes that the Convention entered into force with
respect to Slovenia on 28 June 1994. On that date the applicant's
request for the re-opening of the case was pending before the courts.
The decision to grant her request was upheld on 17 October 1995 by
the Higher Labour and Social Court and at that point the case was
effectively re-opened (see paragraph 11 above). Having regard to its
case-law on the subject (see, mutatis mutandis, Sablon v.
Belgium, no. 36445/97, §§ 86-89 and 92, 10 April
2001, and Löffler v. Austria, no. 30546/96, § 19,
3 October 2000) the Court considers that the relevant period
started to run with the decision of 17 October 1995. The proceedings
ended on 25 January 2006, the day the Supreme Court's decision was
served on the applicant (see paragraph 22 above). They therefore
lasted about ten years and three months. The case was considered
at three levels of jurisdiction. However, as a result of the
remittals, ten instances were involved in the examination of the case
in the period within the Court's temporal 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 considers that the case was of a certain, but limited,
complexity. Further, it notes that, apart from availing herself of
the appeals procedure, the applicant did nothing to unduly contribute
to the length of the proceedings.
- As
regards the Government's argument that the delays in the proceedings
should not be attributed to the State as they resulted from the
parties' use of remedies, the Court notes that the level of
jurisdiction at which the case was considered as a result of the use
of remedies is normally taken into account in assessing the
reasonableness of the length of the proceedings. Having said that,
the Court notes that in the present case the examination of the
applicant's remedies was not the main reason for the length of the
proceedings in the period within the Court's temporal jurisdiction.
The delays in the proceedings were mainly caused by the remittal of
the case.
- The
Court notes that after the reopening of the case in October 1995, the
first-instance judgment of 27 May 1997 was quashed and the case
remitted for re-examination. The next judgment was delivered by the
first-instance court on 23 March 1999. However, that judgment was
overruled by the second-instance court on 19 November 1999.
Further to the applicant's appeal on points of law the Supreme Court
quashed the lower courts' judgments and the case was again sent to
the first-instance court for re-examination. On 31 January 2002 the
first-instance court delivered a new judgment, which on 26 September
2002 was again quashed, this time by the second-instance court, and
the case remitted to the first-instance court for re-examination. On
14 September 2004, seven years and three months after the first
judgment in the re-opened proceedings, the first-instance court
delivered a judgment which remained effective after being challenged
before the higher courts (see paragraphs 11- 22 above) .
- The
Court acknowledges that the domestic courts were in the best position
to judge whether the case ought to be referred back to the lower
courts under the relevant provision of domestic law (Bock v.
Germany, judgment of 29 March 1989, Series A no. 150,
§ 43). Nonetheless, as it has already stressed in previous
cases (see, for example, DeZelak v. Slovenia, no. 1438/02,
§ 25, 6 April 2006), since the remittal of cases for
re-examination is usually ordered as a result of errors committed by
lower courts, as indeed appears to have happened in the applicant's
case, the repetition of such orders within one set of proceedings
discloses a serious deficiency in the judicial system. That
deficiency is attributable to the authorities, not the applicant
(see Wierciszewska v. Poland, no. 41431/98, § 46,
25 November 2003, and Matica v. Romania,
no. 19567/02, § 24, 2 November 2006).
-
Having regard to the foregoing and taking also into account what was
at stake for the applicant, the Court considers that in the instant
case the length of the proceedings, which lasted more than ten years
in the period within the Court's temporal jurisdiction, was excessive
and failed to meet the “reasonable-time” requirement.
There has accordingly been a breach of Article 6 § 1 of the
Convention.
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 Grzinčič,
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. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained that the proceedings were unfair, as the
witnesses had lied. She also complained that the courts which had
heard her case had not been impartial.
51. The Court notes that the applicant's complaints concerning the
alleged unfairness and lack of impartiality in the proceedings are of
a general character and are not supported by concrete evidence.
Having regard to the foregoing and the documents in the case-file, it
considers that the proceedings before the domestic courts in the
instant case disclose no appearance of a failure to observe the
requirements of fairness or impartiality under Article 6 of the
Convention. It follows that this part of the application must be
rejected as being manifestly ill-founded under Article 35 §§
3 and 4 of the Convention.
- The
applicant further complained under Article 4 of the Convention of the
allegedly harmful conditions in which she had been compelled
to work, in particular between 1983 and 1990, when she had retired.
- The
Court is prevented from considering this part of the application as
the events complained of (see paragraph 6 above) took place before
28 June 1994, the date the Convention entered into force in
respect of Slovenia. It follows that this part of the application is
incompatible ratione temporis with the provisions of the
Convention within the meaning of Article 35 § 3
and must be rejected 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 10,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government contested that claim.
- The
Court considers that the applicant must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards her EUR 6,400 under
that head.
B. Costs and expenses
- The
applicant also claimed EUR 2,000 for costs and expenses incurred
before the Court.
- The
Government submitted that the applicant had failed to indicate the
scale rates on which her lawyer's fees were based and had not
specified the amounts claimed for her expenses and her legal
representation. In any case, the claim was too high.
- Under
the Court's case-law, an applicant is entitled to the reimbursement
of his costs and expenses only in so far as they have been shown to
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, the Court considers, on the basis of
the information in the case-file, that it is reasonable to award the
applicant the full sum claimed under this head,
namely EUR 2,000.
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 complaints concerning the length of
the civil proceedings and the effectiveness of the related legal
remedies admissible;
- Declares inadmissible the remainder of the
application;
- 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 6,400 (six
thousand four hundred euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage and EUR 2,000 (two thousand euros),
plus any tax that may be chargeable to the applicant, in respect of
costs and expenses;
(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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 8 January 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
