SOTOŠEK v. SLOVENIA - 33333/11 - Committee Judgment [2013] ECHR 1106 (07 November 2013)

In the case of Sotošek v. Slovenia,

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

          Angelika Nußberger, President,
          Boštjan M. Zupančič,
          Helena Jäderblom, judges,
and Stephen Phillips, Deputy Section Registrar,

Having deliberated in private on 15 October 2013,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 33333/11) 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 Janez Stojan Sotošek (“the applicant”), on 5 May 2011.

2. The Slovenian Government (“the Government”) were represented by their Agent.

3. On 26 September 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1939 and lives in Ljubljana.

5. On 5 May 1986 the applicant instituted civil proceedings against six defendants before the Ljubljana Basic Court claiming non-pecuniary damages for defamation.

6. By 28 June 1994 when the Convention came into force in respect of Slovenia, the court had scheduled eight main hearings which were all adjourned.

7. A hearing was scheduled for 19 September 1994 but was adjourned after the applicant had on 15 September 1994 lodged a motion for the referral of the matter to a Labour and social Court.

8. On 19 September 1994 the applicant’s motion was dismissed.

9. By 17 September 1998 when the Ljubljana District Court held a main hearing further four scheduled hearings had been postponed, one at the request of the applicant. On the latter date the court issued its decision, granting the applicant’s claim. The defendants appealed.

10. On 29 March 2000 the Ljubljana Higher Court upheld the appeal and dismissed the applicant’s claim. The applicant lodged an appeal on points of law.

11. On 8 March 2001 the Supreme Court granted the applicant’s appeal on points of law and remitted the case back to the second instance court which on 21 June 2002 issued a decision to remit the case back to the first instance court.

12. On 29 November 2002 the applicant requested that a scheduled main hearing be postponed due to health reasons.

13. The hearing scheduled for 10 March 2003 was postponed after the applicant had on 6 March 2003 lodged a motion for suspension of the presiding judge, a motion to have disciplinary proceedings instituted against the judge, a motion to have the presiding judge excluded and a motion to transfer the case to another court.

14. On 23 April 2003 the Ljubljana District Court imposed a fine on the applicant for abusing procedural rights and for contempt of court.

15. On 25 May 2004 the applicant made a motion to have the case transferred to another court. On 24 June 2004 the Supreme Court dismissed the motion.

16. On 31 May 2004 a main hearing was held. The applicant did not appear at the hearing.

17. On 11 November 2004 the court held a main hearing and issued its decision, dismissing the applicant’s claim. The applicant appealed.

18. On 15 June 2006 the Ljubljana Higher Court dismissed the applicant’s appeal. The applicant lodged an appeal on points of law.

19. On 9 October 2008 the Supreme Court dismissed the applicant’s appeal on points of law. The applicant lodged a constitutional appeal.

20. On 3 November 2010 the Constitutional Court dismissed the applicant’s constitutional appeal. The decision was served on the applicant on 6 November 2010.

II. RELEVANT DOMESTIC LAW

21. For relevant domestic law, see the judgments Lesjak v. Slovenia (no. 33946/03, 21 July 2009) and Tomažič v. Slovenia (no. 38350/02, 13 December 2007).

THE LAW

I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION

22. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in 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...”

23. 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 [this] 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

24. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds (see, mutatis mutandis, Lesjak v. Slovenia, no. 33553/02, §§ 47-53, 6 April 2006 and Tomažič v. Slovenia, no. 38350/02, 13 December 2007, §§ 41-45. It must therefore be declared admissible.

B. Merits

1. Article 6

25. 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).

26. It notes that the period to be taken into consideration began on 28 June 1994, when the Convention entered into force with respect to Slovenia and ended on 6 November 2010 when the Constitutional Court’s decision was served on the applicant. The proceedings thus lasted sixteen years and four months at four levels of jurisdiction.

27. In assessing the reasonableness of the time that elapsed after the Convention came into force with respect to Slovenia, account must be taken of the state of proceedings at the time. The Court notes in this connection that at the relevant time the proceedings had already been pending for eight years.

28. The Court notes that the case concerned civil proceedings and that, in the absence of any arguments to the contrary put forward by the Government, it does not appear that the proceedings were particularly complex.

29. Examining the applicant’s behaviour, the Court observes that he lodged repeated requests for postponement of the hearings and motions for transfer of the case to another court as well as motions against the presiding judge. The Court further observes that a fine was imposed on the applicant for abusing procedural rights and for contempt of court. In this respect the Court recalls that while an applicant is entitled to make use of his procedural rights, he must bear the consequences when his exercise leads to delays (see, inter alia, Malicka-Wąsowsa v. Poland (dec.), no. 41413/98, 5 April 2001, and Peryt v. Poland, no. 42042/98, 2 December 2003). In the circumstances of this case the Court finds that the applicant’s conduct had an adverse effect on the length of the proceedings.

30. Notwithstanding the applicant’s contribution to the delays, the Court cannot ignore the fact that within the Court’s jurisdiction ratione temporis it took the first-instance court an additional four years to deliver its judgment after the case had already been pending for eight years. The Court also notes that after the case had been remitted back from the second instance court it took the first instance court in a renewed set of proceedings more than two years to issue a decision.

31. Having regard to the foregoing and to its case-law on the subject (see Rumpf v. Germany, no. 46344/06, §§ 41-46, 2 September 2010, Tomažič v. Slovenia, no. 38350/02, §§ 54-61, 13 December 2007, Jazbec v. Slovenia, no. 31489/02, §§ 64-69, 14 December 2006), 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

32. 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). In view of its findings in the cases Tomažič v. Slovenia (no. 38350/02, 13 December 2007, §§ 41-45) and Lesjak v. Slovenia (no. 33946/03, 21 July 2009), the Court finds 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 their right to have their case heard within a reasonable time, as set forth in Article 6 § 1.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

33. Lastly, the applicant invoked Article 6 § 1 of the Convention with regard to the alleged unfairness of the proceedings and Article 14 of the Convention.

34. Having examined the above complaints, the Court finds, in the light of all the materials in its possession, and in so far as the matters complained of are within its competence, that they do not disclose any appearance of a violation of the Articles relied on by the applicant. It follows that the remaining complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

35. 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

36. The applicant claimed 41,719 euros (EUR) in respect of non-pecuniary damage.

37. The Government contested these claims.

38. The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards award him EUR 7,800 under that head.

B. Costs and expenses

39. The applicant also claimed EUR 5,913 for the costs and expenses incurred before the domestic courts.

40. The Government contested the claim.

41. Regard being had to the documents in its possession and to its case-law, the Court rejects the claim for costs and expenses in the domestic proceedings.

C. Default interest

42. The Court considers it appropriate that the default interest rate 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,

1. Declares the complaint concerning the excessive length of the proceedings and lack of an effective remedy admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 and Article 13 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months EUR 7,800 (seven thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 7 November 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Angelika Nußberger
Deputy Registrar President

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