CEDH · CASELAW;COMMUNICATEDCASES;ENG — 29 juin 2012

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .s3E839E41 { margin-top:12pt; margin-bottom:30pt; text-align:center } .s58ABC179 { margin-top:30pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s11869A80 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sE7C30868 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s984A15CA { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sD5DF731 { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .s6477A72F { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .sA1CDB767 { margin-top:6pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s281358E1 { margin-top:12pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sFD4D42B6 { margin-top:12pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sEC2CB098 { margin-top:6pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .sCA92750 { margin-top:12pt; margin-left:21.25pt; margin-bottom:42pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sC769D9E0 { margin-top:42pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s85D2D43C { margin-top:0pt; margin-bottom:36pt; text-align:center } .s76CF415B { page-break-before:always; clear:both } .s673A384F { margin-top:36pt; margin-bottom:24pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s4B2CF061 { margin-top:24pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify }       FIFTH SECTION Application no. 24125/06 W against Slovenia lodged on 22 May 2006 STATEMENT OF FACTS     The applicant, W, is a Slovenian national. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     Criminal proceedings In the night of 13 April 1990 the applicant, then eighteen years old, was raped by a group of seven men. Three other men allegedly participated; one as an aider and two others by sexually assaulting her. In September 1990 criminal charges of rape, aiding rape and sexual assault, were brought against the above men. All of them defended themselves by alleging that the applicant voluntarily engaged in sexual activity with them. The court held a number of hearings and obtained expert reports. An expert in clinical psychology found that the applicant had an intellectual disability and that she had not been physically or intellectually capable of employing serious resistance. On 13 November 1990 the Maribor Basic Court gave a judgment. The defendants were acquitted of all charges. The court based its verdict on the findings that applicant had not seriously resisted the sexual intercourse; that she had changed her testimony during the proceedings, and that the defendants could not have been considered to employ either force or threats which would be objectively capable of breaking the victim’s resistance. The Public Prosecutor appealed. On 10 April 1991 the Maribor Higher Court quashed the first-instance judgment finding that facts had been insufficiently established. It ordered that the case be freshly examined by the first-instance court which should sit in a different composition, i.e. without the participation of the judges who delivered the impugned judgment. In the new proceedings, the Maribor District Court served the charges against two defendants, one charged with rape and another charged with aiding the commission of rape, whose whereabouts were unknown, into a separate case-file. Between 10 March 1995 and 31 August 2000 the applicant sent at least eight letters in which she urged the court to accelerate the proceedings and/or requested supervision by the President of the court due to the delays. On 5 January 2001 the director of the Department for judicial administration of the Ministry of Justice sent a letter to the applicant. He informed her that the judges had difficulties with finding some of the defendants’ addresses. He moreover noted that between 28 May 1990 and 27 September 2000 there had been a frequent change of the presiding judge in her case due to judges’ promotions. He mentioned that in the aforementioned period seven different judges had been dealing with the case. Between 22 November 2001 and 4 June 2002 the court held five hearings. It also obtained reports from two experts, one in neuropsychiatry and the other in clinical psychology. On 4 June 2002 the court found one defendant guilty of rape under the first paragraph of Article 180 of the Penal Code and five defendants guilty of rape under the second paragraph of Article 180 of the Penal Code. They were sentenced to prison sentences ranging from eight months to one year. The court noted that three of the perpetrators were senior minors at the time of the rape (slightly less than eighteen years old), but that the court was not bound to sentence them to the minimum sentence prescribed by the Panel Code since they had reached twenty one years during the proceedings. The court further noted that the perpetuators were given lenient sentences due to the significant passage of time from the committal of the crime. It further noted that the perpetuators had not shown any genuine regret as regards the acts committed against the applicant who, on the other hand, continued to suffer from the consequences thereof. It concluded that the prison sentence should make them realise the gravity of the offence they had committed. Lastly, the court acquitted the two defendants who had been charged with sexual assault. The convicted defendants appealed. The defendant charged with rape whose charges had been served from the main proceedings was arrested in Slovakia and detained on 21 February 2003. On 4 and 5 September 2003 the court held hearings and on the latter dated convicted him of rape under the second paragraph of Article 180 of the Penal Code. He was sentenced to eight months in prison. He appealed against the verdict. On 30 March 2004 the court held a hearing with regard to the charges against the second missing defendant who had been in the meantime, notably on 9 March 2004, arrested. After the hearing, the court found the defendant guilty of aiding the rape of the applicant. On 25 January and 9 June 2006 the Maribor Higher Court rejected the defendants’ appeals. 2.     Civil proceedings On 22 September 1995 the applicant lodged a civil claim seeking compensation for non-pecuniary damage she had sustained as a result of the rape. On 17 June 2002 the civil court stayed the civil proceedings pending a final decision in the criminal proceedings. They resumed in November 2007. Subsequently, two hearings were held and on 21 January 2009 the first instance court gave a judgment. The proceedings are currently pending on appeal. 3.     Proceedings concerning a claim for non-pecuniary damage on account of the alleged delays in the criminal proceedings Following unsuccessful settlement negations with the State Attorney’s Office, the applicant, on 30 November 2009, lodged a claim with the Celje Local Court seeking compensation in the amount of EUR 5,000 for non-pecuniary damage incurred as a result of the length of the criminal proceeding. She relied on 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 – the “2006 Act”). She submitted that her interest in criminal proceedings had not only been of pecuniary nature but also aimed at safeguarding her rights under Article 3 of the Convention. She further argued that it would have been pointless for her to pursue pecuniary claim in criminal proceedings as the criminal court would, in any event, eventually refer her to civil proceedings. On 16 November 2010 the court gave a judgment. The court found that the applicant’s right to the trial within a reasonable time had been breached and that the State was to pay EUR 5,000 to the applicant. In addition, it ordered the State to pay the applicant default interest from 22 May 2006 to 12 June 2009. The court rejected the remainder of the claim.   The applicant and the State Attorney lodged appeals. On 4 August 2011 the Celje Higher Court modified the first-instance judgment in so far as it concerned the costs of proceedings. It rejected the remainder of the appeals. On 13 October 2011 the applicant lodged a constitutional appeal as well as a motion by which she challenged the constitutionality of the 2006 Act. In particular she alleged that the statutory limitation of compensation provided in its section 16 was unconstitutional. On 10 February 2012 the Constitutional Court dismissed the constitutional appeal without giving written grounds and rejected the motion concerning the challenge of constitutionality, finding that the applicant lacked legal interest. B.     Relevant domestic law Article 180 of the Penal Code (Official Gazette no.   63/94) reads, in so far as relevant, as follows;   “(1)     Whoever compels a person of the same or opposite sex to submit to sexual intercourse with him by force or threat of imminent attack on life or limb shall be sentenced to imprisonment for not less than one and not more than ten years. (2)     If the offence under the preceding paragraph has been committed in a cruel or extremely humiliating manner or successively by at least two perpetrators or against an offender serving sentence in a closed or semi-open type of penal institution, the perpetrator(s) shall be sentenced to imprisonment for not less than three years. ...” Section 16 of the 2006 Act provides for a compensatory remedy and fixes the maximum amount that could be awarded. It reads as follows: “(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 in respect of individual, finally decided cases shall be awarded in an amount of between 300 and 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.” COMPLAINTS The applicant complains about the delays in the criminal proceedings against the individuals who raped her or participated thereat. In particular, she submits that the authorities were entirely inactive for ten years between 1991 and 2000 and that the proceeding lasted more than sixteen years during which she lived in uncertainty. She also alleges that the delays in the proceedings further deepened her trauma related to the criminal offence of which she had been a victim. Under Article 6 § 1 of the Convention the applicant complains that her right to a trial within a reasonable time was violated due to the delayed determination of her civil rights, which were dependant on the conduct of the criminal proceedings. Invoking Article   13 of the Convention she further complains about the lack of an effective domestic remedy with respect to her complaint under Article 6 § 1. In her submission following the award of compensation in the domestic proceedings, she alleges that the compensatory claim under the 2006 Act, which was limited to EUR 5,000, was an insufficient remedy, in particular in her case which concerned excessive delays as well as an issue under Article 3 of the Convention. In her submissions of 29 June and 27 August 2009 the applicant maintained that she was complaining under Article 3 on account of the State’s failure to safeguard her rights enshrined in the aforementioned provision by providing effective, including prompt, criminal proceedings against the alleged perpetuators of rape. The delays, in her view, indicated lenient attitude of the authorities and contributed to relatively low sanctions imposed on the perpetrators. QUESTIONS TO THE PARTIES 1. Is the applicant’s complaint concerning procedural obligations under Article 3 of the Convention compatible with the provisions of the Convention, ratione temporis , given that the assault on the applicant dates back to 1990 (see mutatis mutandis , Šilih v. Slovenia [GC], no. 71463/01, §§ 147, 159 and 161-163, 9 April 2009)? 2.     Was the conduct of the criminal proceedings against those accused of raping, aiding rape or sexually assaulting the applicant compatible with the procedural obligations inherent in Article 3 of the Convention (see, among others, M.C. v. Bulgaria , no. 39272/98, §§ 153, 166 and 184, ECHR   2003 ‑ XII)? 3. Was there a violation of the applicant’s right to a trial within a reasonable time, as guaranteed by Article 6 § 1, on account of the length of the criminal proceedings? 4. Did the applicant have at her disposal an effective domestic remedy for her Convention complaints, as required by Article 13 of the Convention? The Government are also requested to submit copies of the courts’ decisions and any other relevant documents issued in the civil proceedings in which the applicant sought compensation for the damage sustained as a result of the criminal offence committed against her.