CEDH · CASELAW;CLIN;ENG — 3 mai 2007

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Slovenia - 26867/02 Judgment 3.5.2007 [Section III] Article 35 Article 35-1 Exhaustion of domestic remedies Effective domestic remedy Effectiveness of new domestic remedy concerning length of judicial proceedings: inadmissible   Facts : In 1996 the applicant instituted civil proceedings seeking compensation for non-pecuniary damage suffered as a result of unjustified detention. In 2004 a final judgment awarding the compensation was given. In 1999 criminal proceedings were instituted against the applicant. They are now pending before a higher court. Following the judgment in Lukenda v . Slovenia (no. 23032/02, 6   October 2005, Information Note no. 79), the Slovenian Government adopted a Joint State Project on the Elimination of Court Backlog, part of which was the 2006 Act on the Protection of the Right to a Trial without undue Delay (the “Act”) which entered into force on 1 January 2007. The Act provides for two remedies to expedite pending proceedings – a supervisory appeal and a motion for a deadline– and, ultimately, for a claim for just satisfaction in respect of damage sustained because of the undue delay. Law : Civil proceedings – Given that the impugned civil proceedings had ended and the present application had been communicated to the respondent Government before the 2006 Act became operational, the remedy provided therein could not be regarded as effective. The length of proceedings had been excessive. Conclusion : violation of Articles   6(1) and 13 (unanimously). Criminal proceedings – As regards the pending criminal proceedings, the applicant had been entitled to seek their acceleration and redress, when the Act became operational. In particular, a supervisory appeal and a motion for a deadline were designed in the Act to obtain acceleration of pending proceedings and/or a finding that time-limits had been exceeded. Furthermore, the Act provided for a compensatory remedy whereby a party could be awarded just satisfaction for any non-pecuniary and pecuniary damage sustained. The Court was thus satisfied that the aggregate of remedies provided by the Act in cases of excessively long pending proceedings was effective in the sense that they were in principle capable of both preventing the continuation of the alleged violation of the right to a hearing without undue delay and of providing adequate redress for any violation that has already occurred. As for the exhaustion requirement in respect of applications lodged before the 2006 Act became operational, the purpose of the remedies introduced by it was precisely to enable the Slovenian authorities to redress breaches of the “reasonable time” requirement at domestic level. There was no reason to doubt their effectiveness, even in the absence of long-term practice of domestic authorities applying the Act. That was valid not only for applications lodged after the date on which the Act became operational, but also for those concerning domestic proceedings pending at first and second instance which were already on the Court's list of cases by that date. However, the Court's position could be subject to review in the future and the burden of proof as to the effectiveness of the remedies in practice remained upon the Government. National authorities should therefore take particular care to ensure that the Act be applied in conformity with the Convention as far as both future case-law and the general administration of justice are concerned. Appropriate measures should be taken in order to avoid clogging up domestic avenues. In this connection, the Court noted that the Government had adopted the so-called Lukenda Project to address this structural problem from different angles. The applicant was therefore required by Article   35(1) of the Convention to use the remedies available to him under the Act with effect from 1 January 2007. Conclusion : inadmissible (non-exhaustion of domestic remedies as regards Article   6 and manifestly ill‑founded as regards Article   13).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes