CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 25 novembre 2008

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Zupančič,   Alvina Gyulumyan,   Egbert Myjer,   Ineta Ziemele,   Ann Power, judges, and Santiago Quesada, Setion Registrar , Having regard to the above application lodged on 23 March 2006, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Mr Jusuf Nezirović, is a Slovenian national who was born in 1961 and lives in Trbovlje. He was represented before the Court by Mr Boštjan Verstovšek, a lawyer practising in Celje. A.     The circumstances of the case 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     The main proceedings 3.     On 12 October 1999 the applicant was injured in an industrial accident. The applicant’s employer had taken out insurance with the insurance company ZT. 4.     On 12 September 2001 the applicant instituted civil proceedings against ZT in the Ljubljana District Court ( Okrožno sodišče v Ljubljani ) seeking damages in the amount of 8,590,967 Slovenian tolars (approximately 35,800 euros) for the injuries sustained. Between 1 October 2001 and 19 January 2006 the applicant lodged seven preliminary written submissions and/or adduced evidence. Between 3 September 2003 and 21 September 2005 he made four requests that a date be set for a hearing. In letters to the applicant of 11   September 2003 and 28 June 2004, the judge explained that his case was not yet at the top of the list of cases for examination by the court. Between 15 December 2004 and 27 September 2006 four hearings were held. One hearing, scheduled for 25 November 2005, was adjourned at the applicant’s request. During the proceedings the court appointed a medical expert. The court also sought an additional opinion from the appointed expert. On 27 September 2006 the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 16 November 2006. 5.     On 30 November 2006 the applicant appealed to the Ljubljana Higher Court ( Višje sodišče v Ljubljani ). On 9 May 2007 the court allowed the applicant’s appeal in part and increased the amount of damages awarded. The judgment was served on the applicant on 31 May 2007. 6.     On 22 June 2007 the applicant lodged an appeal on points of law with the Supreme Court ( Vrhovno sodišče ). 7.     On 22 August 2007 the Ljubljana Higher Court dismissed the applicant’s request for the correction of an alleged material error in its judgment. The proceedings before the Supreme Court would appear to be still pending. 2.     The proceedings under the 2006 Act 8.     On 27 February 2008, while the proceedings were pending before the Supreme Court, the applicant lodged a supervisory appeal with the Ljubljana District Court, in accordance with section 6 of 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”). In his supervisory appeal, the applicant explained that the proceedings had begun on 12 September 2001   and were still pending. As a consequence, his right to a trial within a reasonable time had been violated. He requested that the proceedings on his appeal on points of law be expedited and that a decision be delivered by the end of 2008 at the latest. There is no decision as to this supervisory appeal in the case file. 9.     On 27 March 2008 the applicant lodged a new supervisory appeal with the Ljubljana District Court, in which he described more thoroughly the processing of his case by the courts and alleged that his right to a trial within a reasonable time had been breached. 10.     On 10 April 2008 the president of the Supreme Court, to whom the supervisory appeal had been transferred, rejected it under section 6, subsection 5, of the 2006 Act. He noted that case had been submitted to the Supreme Court on 13 December 2007. Having regard to the measures available to him under the 2006 Act, he concluded that the proceedings could not be expedited. He added, however, that he had taken steps to eliminate the systemic delays at the Supreme Court, namely the employment of additional judges and legal secretaries. 11.     On 25 April 2008, relying on the same grounds as in his supervisory appeal, the applicant lodged a motion for a deadline with the Supreme Court. He requested that the case be decided within a month. 12.     On 9 May 2008, referring to his findings in the decision rejecting the supervisory appeal, the president of the Supreme Court rejected the motion for a deadline as unfounded, on the basis of section 11, subsection 3, of the 2006 Act. B.     Relevant domestic law 1.     The Lukenda Project 13.     Following the judgment in Lukenda v. Slovenia (no. 23032/02, 6   October 2005), and decision no.   U-I-65/05 of the Constitutional Court (22   September 2005), both of which bound the Slovenian State to establish conditions in which the right to a trial without undue delay was to be afforded, the Slovenian Government adopted on 12 December 2005 a Joint State Project on the Elimination of Court Backlogs, the so-called “Lukenda Project”. Its goal is the elimination of backlogs in Slovenian courts and prosecutors’ offices by the end of 2010, by providing for structural and managerial reform of the judiciary. 2.     The 2006 Act 14.     The 2006 Act (see paragraph 8 above), the preparation of which was part of the Lukenda Project, was enacted by the Slovenian Parliament on 26   April 2006. It was published in the Official Gazette on 12   May 2006 and came into force on 17 May 2006. On 1 January 2007 it became operational, which means that it has been implemented since that date. 15.     Section 3 of the 2006 Act provides for two remedies to expedite pending proceedings - a supervisory appeal ( nadzorstvena pritožba ) and a motion for a deadline ( rokovni predlog ) - and, ultimately, for a claim for just satisfaction in respect of damage sustained on account of the undue delay ( zahteva za pravično zadoščenje ). 16.     Section 4 defines the criteria that domestic authorities should take into account when assessing such complaints: Section 4 - Criteria for decision-making “When deciding on the legal remedies under this Act, the circumstances of the particular case shall be taken into account, namely: its complexity in terms of facts and law; actions of the parties to the proceedings, in particular as regards the use of procedural rights and fulfilment of obligations in the proceedings; compliance with rules on the set order for resolving cases, or with statutory deadlines for fixing preliminary hearings or for giving court decisions; the manner in which the case was heard before a supervisory appeal or a motion for a deadline was lodged; the nature and type of case and its importance for a party.” 17.     The supervisory appeal is governed by sections 5 and 6, which, in so far as relevant, provide: Section 5 - Supervisory appeal “(1) If a party considers that the court is unduly protracting the decision-making, he or she may lodge a supervisory appeal in writing before the court hearing the case; the decision thereon is taken by the .... president of the court (hereinafter ‘the president of the court’). (2) For the purposes of decision-making concerning the protection of the right to a trial without undue delay, the supervisory appeal shall contain the following elements: ...   – indication of circumstances or other particulars concerning the case, which demonstrate that the court is unduly protracting the decision-making;   ... Section 6 - Decision on supervisory appeal “(1) If the supervisory appeal is manifestly unfounded having regard to the timetable for resolving the case concerned by the supervisory appeal, the president of the court shall dismiss the appeal by a ruling. (2) If the supervisory appeal does not contain all the required elements referred to in section 5(2) of this Act, the president of the court shall dismiss it by a ruling. No appeal shall lie against that ruling. (3) If no ruling as provided for in paragraphs 1 or 2 of this section is given, the president of the court shall, in the framework of his court management competence under the statute governing the court system, forthwith request the .... judge or chair of a court panel (hereinafter ‘the judge’) to whom the case has been assigned for resolution to submit a report indicating reasons for the duration of proceedings, not later than fifteen days after receiving the request of the president of the court or after obtaining the file, if necessary for drawing up the report. The report shall include the declaration in respect of criteria referred to in section 4 of this Act and the opinion on the time-limit within which the case may be resolved. The president of the court may also require the judge to submit the case file if he assesses that, in the light of allegations of the party indicated in the supervisory appeal, its examination is necessary. (4) If the judge notifies the president of the court in writing that all relevant procedural acts will be performed or a decision issued within a time-limit not exceeding four months following the receipt of the supervisory appeal, the president of the court shall inform the party thereof and thus conclude the consideration of the supervisory appeal. (5) If the president of the court establishes that in view of the criteria referred to in section 4 of this Act the court is not unduly protracting the decision-making in the case, he shall dismiss the supervisory appeal by a ruling. (6) If the president of the court ... in view of the criteria referred to in section 4 of this Act, (he) establishes that the court is unduly delaying the decision-making in the case, he shall, depending on the status and nature of the case and by a ruling, order a deadline for the performance of certain procedural acts, and may also order that the case be resolved as a priority owing to the circumstances of the case, particularly when the matter is urgent. If he orders that appropriate procedural acts be performed by the judge, he shall also set the time-frame for their performance, which may not be less than fifteen days and not longer than six months, as well as the appropriate deadline for the judge to report on the acts performed. (7) If the president of the court establishes that the undue delay in decision-making in the case is attributable to an excessive workload or an extended absence of the judge, he may order that the case be reassigned. He may also propose that an additional judge be assigned to the court or order other measures in accordance with the statute governing the judicial service. ...” 18.     Sections 8 and 11 define the motion for a deadline and provide for measures that may be applied by the court dealing with the motion. They read, in so far as relevant, as follows: Section 8 - Motion for a deadline “(1) If, under section 6(1) or (5) of this Act, the president of the court dismisses the supervisory appeal or fails to respond to the party within two months or fails to send the notification referred to in section 6(4) of this Act within the said time-limit or if appropriate procedural acts have not been performed within the time-limit set in the notification or ruling of the president of the court, the party may lodge an application for a deadline on the grounds stated in section 5(1) of this Act with the court hearing the case. ... (3) The party may lodge the motion for a deadline within fifteen days after receiving the ruling or after the time-limits provided for in paragraph 1 of this section.” Section 9 - Competence for decision-making (1) The president of the higher court in the judicial area covering the local court, district court or other court of first instance, shall have the competence to decide on the motion for a deadline concerning the cases heard by the local court, district court or other court of first instance. (2) The president of the Supreme Court of the Republic of Slovenia shall have the competence to decide on the motion for a deadline concerning cases heard by higher court or court having the status of higher court. (3) The president of the Supreme Court of the Republic of Slovenia shall have the competence to decide on the motion for a deadline concerning cases heard by the Supreme Court of the Republic of Slovenia. (4) Other judges may be assigned by the annual schedule of allocation to act in place of or together with the presidents of courts referred to in previous paragraphs for decision-making on motions for a deadline. Section 11 - Decision on the motion for a deadline ... (3) If the president of the court establishes that, in view of the criteria referred to in Article 4 of this Act, the court does not unduly delay with the decision-making of the case, he shall reject the motion for a deadline by way of a ruling. ...   (5) The president of the court shall decide on the motion for a deadline within fifteen days after receiving it.” 19.     Section 15 provides for the conditions under which a claim for just satisfaction can be lodged and section 16 regulates the monetary compensation and criteria for its assessment:   Section 15 – Just satisfaction   “(1) If the supervisory appeal lodged by the party was granted or if a motion for a deadline has been lodged, the party may claim just satisfaction under the present Act. ...” Section 16 - Monetary compensation “(1) Monetary compensation shall be payable for non-pecuniary damage caused by a violation of the right to a trial without undue delay. Strict liability for any damage caused shall lie with the Republic of Slovenia. (2) Monetary compensation for individual finally decided cases shall be granted in the amount of 300 up to 5,000 euros. (3) When deciding on the amount of compensation, the criteria referred to in section   4 of this Act shall be taken into account, in particular the complexity of the case, actions of the State, actions of the party and the importance of the case for the party.”   20.     Sections 19 and 20 govern just satisfaction proceedings: Section 19 - Proceedings before the State Attorney’s Office “(1) Proceedings to enforce a claim for just satisfaction, provided that the condition referred to in section 15(1) of this Act is met, shall be instituted by a party by means of a motion for settlement lodged with the State Attorney’s Office with a view to reaching an agreement on the type or amount of just satisfaction. The party may lodge such motion within nine months after the final resolution of the case... ...” Section 20 - Proceedings in a court “(1) If no agreement under section 19 of this Act is reached upon the motion for settlement, or the State Attorney’s Office and the party fail to negotiate an agreement within three months of the date of the motion being lodged, the party may bring an action for damages. (2) An action for damages against the Republic of Slovenia shall be brought not later than eighteen months after the final resolution of the party’s case. ...” 2.     The Civil Procedure Act 21.     The relevant provisions of the Civil Procedure Act ( Zakon o pravdnem postopku , Official Gazette no.   83/2001) provide: Section 319   “A judgment, against which an appeal can no longer be lodged, shall become final ( pravnomočen ), insofar as the party’s claim or counter-claim has been decided therein. ...” Section 333 “The parties may lodge an appeal against a judgment delivered at first instance within thirty days from the service of its written grounds... An appeal, lodged on time, precludes the judgment from becoming final in the part which has been challenged in the appeal.” Section 367 “The parties may lodge an appeal on points of law against a final judgment, delivered at second instance, within thirty days from the service of its written grounds.” COMPLAINTS 22.     The applicant complained, under Article 6 § 1 of the Convention, that the length of the civil proceedings, in particular before the first-instance court, had been excessive. In substance under Article 13 of the Convention, he complained that the remedies at his disposal for the length of proceedings complaint had been ineffective. As regards the latter, the applicant argued that it would be unreasonable to expect him to lodge acceleratory remedies in the second-instance proceedings as the delays had occurred before the 2006 Act became operational. Moreover, unreasonable delays in court proceedings were a systemic problem in Slovenia which could not be resolved by the 2006 Act. THE LAW 23.     The applicant complained under Article 6   §   1 of the Convention about the length of the civil proceedings. In so far as relevant, Article 6 § 1 provides:   “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 24.     He further complained that the remedies available in respect of the excessively lengthy 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.” 25.   In a letter of 9 October 2006 the State Attorney General officially informed the Court that, further to its judgment in the Lukenda case (cited above) binding the Slovenian State to adopt appropriate legal measures and administrative practices in order to secure the right to a trial within a reasonable time, the 2006 Act had been enacted on 26   April   2006 and became operational on 1   January   2007. 26.     The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring their case against the State before an international judicial organ to use first the remedies provided by the national legal system. Consequently, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal systems. The rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system. (see, among many other authorities,   Aksoy v. Turkey , 18   December 1996, §   51, Reports of Judgments and Decisions 1996-VI). 27.     As regards the remedies available under the 2006 Act, the Court notes that during the first- and second-instance proceedings, a claimant may use a supervisory appeal if he or she considers that the court is unduly protracting the decision-making. If the president of the court dismisses the supervisory appeal or, inter alia , fails to respond to the claimant within two months, he or she, relying on the same grounds, can lodge a motion for a deadline with the court hearing the case. The motion for a deadline is to be dealt with by the president of the higher court. He or she is to decide on the motion for a deadline within fifteen days of receiving it (see paragraphs 17-18 above). 28.     As regards the proceedings before the Supreme Court, a claimant can use a supervisory appeal and a motion for a deadline in order to speed up the proceedings. It would appear from the text of the 2006 Act that both procedures are dealt with by the president of the Supreme Court (see paragraphs 17-18 above). 29.     In addition to these acceleratory remedies, the 2006 Act also provides the possibility to obtain redress through a compensatory remedy, namely by bringing a claim for just satisfaction. With regard to the latter, it transpires from sections 15, 19 and 20 of the 2006 Act that two cumulative conditions must be satisfied in order for the party to be able to lodge a claim for just satisfaction. Firstly, during the first- and/or second-instance proceedings the applicant must have successfully availed himself of the supervisory appeal or have lodged a motion for a deadline, regardless of its outcome. Secondly, the proceedings must have been finally resolved (see paragraphs 19-20 above). The “final resolution” of the case refers in principle to the final decision against which no ordinary appeal lies: that would normally be a decision of the first-instance court or, if the appeal has been lodged, the second-instance court (see paragraph 21 above). The claim for just satisfaction does not appear to be available in respect of the length of proceedings before the Supreme Court. 30.     The Court observes that the purpose of the remedies introduced by the 2006 Act is precisely to enable the Slovenian authorities to redress breaches of the “reasonable time” requirement at domestic level. The Court further reiterates that the mere fact that an applicant had lodged his or her application before the implementation of the 2006 Act does not absolve him or her from exhausting the remedies available under the 2006 Act (see Korenjak v. Slovenia ((dec.) no. 463/03, §§ 63-61, 15   May   2007). It notes that it has found in the previous cases against Slovenia that the applicants were required to make use of the acceleratory remedies if the proceedings were pending before the first or second-instance court (see Korenjak , cited above), and that they were also required to use the compensatory remedy provided that, after exhausting the acceleratory remedies, they had reasonably prompt access to it ( Žunič   v. Slovenia, (dec.) no. 24342/04, §§   43-55, 18   October 2007). 31.   As regards the present case, the Court notes that the first-instance proceedings lasted more than five years and terminated before the 2006 Act became operational. The second-instance proceedings were instituted on 30   November 2006 and terminated on 9 May 2007, which is about four months after the beginning of the implementation of the 2006   Act. On this date the case became “finally resolved”. Subsequently, the proceedings continued with an appeal on points of law, which is an extraordinary remedy, and are still pending before the Supreme Court. 32.     The Court observes that in the present case the alleged excessive delays occurred in the first-instance proceedings. It notes that in order to be able to claim compensation for non-pecuniary damage suffered as a result of these delays, the applicant would have to make use of acceleratory remedies in the proceedings before the second-instance court, in accordance with the requirement set out in section 15 of the 2006 Act. Since the applicant did not use the acceleratory remedies in the second-instance proceedings, although he did so in the proceedings before the Supreme Court, he could not claim just satisfaction. The Court must, thus, having regard to his submissions (see paragraph 22 above), determine whether he was required to exhaust these remedies in order to comply with Article 35   §   1 of the Convention. 33.     In this connection, the Court does not find the condition that the acceleratory remedies must be exhausted before the compensation claim can be lodged unreasonable. It reiterates that a remedy designed to expedite the proceedings in order to prevent them from becoming excessively lengthy is the most effective solution. Such a remedy offers an undeniable advantage over a remedy affording only compensation, since it also prevents violations of the reasonable time requirement (see Scordino v. Italy (no.   1) [GC], no.   36813/97, §   183, ECHR 2006 ‑ ...). 34.     That said, the Court cannot fail to observe that the requirement to use the acceleratory remedies might turn out to be rather formalistic in certain transitional cases where the major delays occurred before the 2006   Act became operational. It notes, however, that the States enjoy some margin of appreciation as to the manner of providing a domestic remedy in respect of the “reasonable time” requirement (see Scordino , cited above, §   189) and that the 2006 Act does not demand that the claimant be successful with the acceleratory remedies. He or she only needs to make use of them and then, once the proceedings are finally resolved, he or she can seek compensation in respect of the length of the proceedings up to their “final resolution” (see Žunič , cited above, § 49). 35.     Having regard to the foregoing, the Court considers that even in cases where the delays occurred before the 2006 Act became operational, the compensation claim could in principle be considered to be an effective remedy (see Žunič , cited above), if the applicant had a real possibility to satisfy the requirements for its admission, including the use of acceleratory remedies as required by section 15. 36.     It remains to be determined whether in the present case the applicant had such a possibility to satisfy the requirement of section 15 during the four months between the date of implementation of the 2006 Act, that is, 1   January 2007, and the “final resolution” of the case, that is, the termination of the second-instance proceedings on 9 May 2007. 37.     In this connection, the Court notes that the plan as to the establishment of new legal remedies in respect of length of proceedings was set out as early as December 2005, when the so-called Lukenda Project was adopted. The 2006 Act was published in the Official Gazette on 12   May   2006 and it is since that date that its content, including the condition in issue, has been known to the public. On 1   January   2007 it became operational with an erga omnes effect. 38.     The Court therefore considers that the present situation should be distinguished from the cases where an effective remedy appeared as a result of a development in the jurisprudence of domestic courts (see Broca and Texier-Micault v. France , nos. 27928/02 and 31694/02, § 20, 21   October   2003, and Di Sante v.   Italy ( dec.), no. 56079/00, 24 June 2004). It deems it reasonable to assume that the 2006 Act must have been public knowledge from 12   May   2006, and that applicants, in particular those represented by lawyers, should have been aware of the 2006 Act on the day it became operational, that is, on 1   January   2007. 39.     In view of the above, the Court considers that in the present case the applicant knew or ought to have known about the requirement to lodge a supervisory appeal and, under certain conditions, a motion for a deadline, as from 1   January 2007. He nevertheless did not avail himself of these remedies in the second-instance proceedings. 40.     The Court does not wish to speculate about the possible outcome of proceedings instituted upon the filing of acceleratory remedies, which did not take place as a result of the applicant’s failure to act. It will confine itself to noting that, given that the second-instance proceedings terminated on 9 May 2007, he would have had a reasonable chance of satisfying the criteria for the admission of the compensation claim by availing himself properly and without delay of the acceleratory remedies (see paragraphs 27 and 29 above). 41.     In conclusion, the Court finds that in the situation such as the present one, an applicant is required to make a constructive attempt to exhaust the acceleratory remedy, at least to secure his or her access to a compensation claim. In the present case, the applicant did not make such an attempt nor did he provide a convincing explanation for his failure to do so. This part of the application must therefore be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §   1 of the Convention. 42.     As regards the proceedings before the Supreme Court, which continued after the “final resolution” of the case, the Court finds that it does not have to consider whether the acceleratory remedies which the applicant used could be considered effective in the absence of availability of a claim in respect of just satisfaction, as this part of the application must in any event be rejected as manifestly ill-founded. The Court notes in this respect that, even assuming that the proceedings are still pending before the Supreme Court, they have taken one year and five months at one level of jurisdiction, which cannot be considered unreasonable. It follows that this part of the application must be rejected as manifestly ill-founded pursuant to Article   35   §   3 of the Convention. 43.     Having regard to the foregoing, the applicant’s complaint under Article 13 that the remedies at his disposal for excessively lengthy proceedings were ineffective must be declared manifestly ill-founded under Article 35 § 3 of the Convention (see Žunič , cited above, § 55). 44.     The application must therefore be rejected under Article   35 §   4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   Santiago Quesada   Josep Casadevall   Registrar   President