HAJRUDINOVIC v. SLOVENIA - 69319/12 - Chamber Judgment [2015] ECHR 500 (21 May 2015)

JUDGMENT STRASBOURG 21 May 2015 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 Hajrudinović v. Slovenia, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Mark Villiger, President, Angelika Nußberger, Boštjan M. Zupančič, Ganna Yudkivska, Vincent A. De Gaetano, Helena Jäderblom, Aleš Pejchal, judges, and Claudia Westerdiek, Section Registrar, Having deliberated in private on 14 April 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 69319/12 ) 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 Ahmet Hajrudinović (“the applicant”), on 22 October 2012. . The applicant was represented by Mr B. Verstovšek, a lawyer practising in Celje. The Slovenian Government (“the Government”) were represented by their Agent, Mrs V. Klemenc, State Attorney. 3. The applicant alleged, in particular, under Article 6 of the Convention, that the length of the proceedings to which he had been a party had been excessive. He also complained of the lack of an effective domestic remedy in respect of the excessive length of the proceedings (Article 13 of the Convention) . 4. On 2 March 2014 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1956 and lives in Jesenice. A. Labour proceedings 6. On 15 April 1998 the Kranj District Court instituted insolvency proceedings against the company S., at that time the applicant’s employer. 7. On 29 April 1998 the receiver in insolvency issued a decision on the termination of the applicant’s employment contract with the company S. 8. On an unknown date, the applicant lodged his claim for a redundancy payment in the insolvency proceedings. Since the receiver disputed the claim, the Kranj District Court on 11 September 1998 referred the applicant to labour proceedings. 9. On 22 December 1998 the applicant instituted proceedings before the Kranj Divison of the Labour and Social Court. 10. In the same period about 150 claims similar to that of the applicant were lodged before the same court. 11. In 1999 the Kranj Labour and Social Court issued decisions in four cases similar to the applicant’s, dismissing the claims. It held that the workers who had lost their jobs owing to the employer’s insolvency before section 19 of the 1999 Act Amending the Guarantee Fund of the Republic of Slovenia Act (“the 1999 Act”) became effective were not entitled to a redundancy payment. Section 19 explicitly foresaw a right to a redundancy payment for workers who were let go after a company had become insolvent. 12. In 2000 several applications for a constitutional review of section 19 of the 1999 Act were lodged with the Constitutional Court, challenging the constitutionality of non-retroactive application of that provision. 13. On 5 October 2001, following the negative decisions issued in the four cases (see paragraph 11 above), the trade union which was also representing the applicant requested the court to postpone hearings scheduled in other cases. The union wanted to first check whether the other workers wanted to withdraw their claims in order to avoid the costs of the proceedings. 14. No formal decision on adjourning or staying the proceedings was issued by the court. 15. On 10 April 2003 the Constitutional Court dismissed the motions for review of the constitutionality of section 19 of the 1999 Act. It held that they were unfounded, since they were based on the false premises that the right to a redundancy payment for workers laid off because of their employer’s insolvency was introduced only by section 19, and that moreover it did not apply retroactively. Referring to its own decisions issued in 1994, 1995 and 2000, it stressed that this right had already been foreseen by the general labour legislation in force prior to the adoption of the 1999 Act. It explained that the purpose of Section 19 was solely to explicitly clarify that also workers who lost their jobs because of the insolvency of their employers were entitled to redundancy payments. Such clarification was needed because of the conflicting case-law of the lower courts. In this respect the Constitutional Court emphasised that while it could not interfere with the correct interpretation of legal norms by the lower courts, the latter could not apply an interpretation which would be unconstitutional, arbitrary, or clearly wrong. 16. On 14 July 2003, the parties settled with the company S., which acknowledged the applicant’s claim. B. Proceedings concerning a claim for damages on account of the length of the labour proceedings (“the compensation proceedings”) 17. On 13 July 2006 the applicant lodged a claim for compensation for damage sustained because of the length of the labour proceedings. 18. On 27 September 2007 the Ljubljana Local Court dismissed his claim. It held that Section 25 of the 2006 Act on Protection of the Right to a Trial without Undue Delay (“the 2006 Act”) was not applicable, since that provision only applied to cases where an individual had already lodged an application on account of length of proceedings before an international court. Applying the general rules of the 2001 Code of Obligations on pecuniary damages, it further concluded that since the case had been settled the applicant had failed to prove that he had incurred any damage. In any case, there was also no causal link between the conduct of the court and the damage allegedly sustained. The applicant appealed. . On 9 January 2008 the Ljubljana Higher Court upheld the applicant’s appeal and remitted the case back to the first-instance court. . On 8 May 2008 the Ljubljana Local Court, in a renewed set of proceedings, again dismissed the applicant’s claim. It concluded that he had failed to prove either any damage on account of delays in the proceedings or any causal link. The applicant appealed. . On 5 November 2008 the Ljubljana Higher Court dismissed the applicant’s appeal. The applicant lodged a constitutional appeal. . On 27 May 2010 the Constitutional Court granted the applicant’s constitutional appeal by referring to its decision of 18 March 2010 (see paragraph below) and remitted the case to the higher court. . On 15 September 2010 the Ljubljana Higher Court remitted the case back to the first-instance court. . On 25 October 2010 the Ljubljana Local Court, applying by analogy, in accordance with the instructions of the Constitutional Court, the provisions of the 2006 Act, dismissed the applicant’s claim. Referring to the case-law of the European Court of Human Rights, it held that it had been reasonable to suspend the examination of the applicant’s claim pending the outcome of some similar cases and of the proceedings before the Constitutional Court (see paragraph above). It held that it could not identify any unreasonable delays in these similar cases, which took five years at three levels of jurisdiction, of which three years were before the Constitutional Court. The applicant appealed. . On 13 April 2011 the Ljubljana Higher Court dismissed the applicant’s appeal. The applicant lodged an application for leave to appeal on points of law and a constitutional appeal. . On 14 July 2011 the Supreme Court dismissed the applicant’s request for leave to appeal on points of law. . On 8 May 2012 the Constitutional Court rejected the applicant’s constitutional appeal. II. RELEVANT DOMESTIC LAW AND PRACTICE 28. The relevant domestic law and practice are exposed in Lukenda v. Slovenia , no. 23032/02 , §§ 9-27, 6 October 2005, and Grzinčič v. Slovenia , no. 26867/02 , § § 38-48, 3 May 2007. . In addition, in its decision nos. U-I-207/08 and Up-2168/08 of 18 March 2010 the Constitutional Court declared Section 25 of the 2006 Act unconstitutional, in so far as it did not regulate the status of the injured parties who claimed just satisfaction before domestic courts owing to a violation of the right to a trial without undue delay in respect of proceedings which had terminated before 1 January 2007, in the same manner as it regulated the status of persons who claimed just satisfaction before an international court. It ordered the National Assembly to remedy the established inconsistency, and instructed that until then the courts should in respect of such cases apply the criteria set out in the respective provisions of the 2006 Act. On 15 May 2012 the National Assembly remedied the established inconsistency by amending Section 25 of the 2006 Act. The amendments were published in the Official Gazette, no. 38/2012. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 30. The applicant complained that the length of both sets of 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...” A. Admissibility 31. The Court notes that, in respect of both sets of proceedings, the 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. It must therefore be declared admissible. B. Merits 1. Length of the labour proceedings (a) The parties’ submissions 32. The applicant complained that the proceedings had lasted almost five years at only one level of jurisdiction, without any progress being made until the parties settled the case. He emphasised that because of the nature of the proceedings and his precarious situation following the loss of his employment the court should have dealt with his case with special diligence. He further argued that his representative had not requested the court to suspend the proceedings in respect of his claim, but had merely requested the court to postpone hearings in some similar cases. He stressed that the court had never issued any formal decision on the suspension of the proceedings. Moreover, according to the applicant, the Constitutional Court’s decision had not been decisive for his case. 33. The Government contested the applicant’s arguments. They argued that the Court should acknowledge that the domestic court’s decision to suspend the examination of the applicant’s case was a measure of procedural efficiency in view of the pending appeal proceedings in the four “test” cases and the awaited decision of the Constitutional Court. They stressed that the Constitutional Court’s decision of 10 April 2003 ( see paragraph above) was decisive for the development of the case-law and had as such also contributed to a favourable outcome of the applicant’s case. The Court should hence also consider the reasonableness of the length of the proceedings before the Constitutional Court. They further argued that the applicant’s representative had requested the adjournment of the proceedings in respect of the remaining claims, including the applicant’s, after the first negative decisions had been issued in similar cases. In any event, the applicant never requested that the proceedings be accelerated. They finally argued that the present dispute was not to be considered as a labour dispute within the meaning of the Court’s case-law (see, for instance, Ruotolo v. Italy , 27 February 1992, § 17, Series A no. 230-D , and Frydlender v. France [GC], no. 30979/96 , § 45, ECHR 2000-VII), and therefore did not call for special diligence. According to the Government, the notion of labour dispute only referred to disputes relating to a termination or existence of an employment relationship. (b) The Court’s assessment 34. The Court notes that the period to be taken into consideration began on 22 December 1998 (see paragraph 9 above), when the applicant instituted proceedings before the labour court, and ended on 1 4 July 2003 (see paragraph above) , when the parties to the proceedings settled the case. The proceedings thus lasted four years, six months and twenty-two days at one level of jurisdiction. 35. 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 , cited above, § 43). . Referring to the criteria above, the Court notes with regard to the applicant’s conduct that his representative had requested the Labour and Social Court to adjourn some hearings scheduled in similar cases. Even if this request could have been linked to the applicant’s case, the Court agrees with him that the Government had not produced any documents showing that the applicant had actually requested the suspension of examination of his own case or in some other way contributed to the length of the proceedings. 37. Moreover, as regards the conduct of the domestic courts, the Court notes that no procedural step was taken or any decision adopted for a period of more than four years and six months. It is true, however, that in 2000 the Constitutional Court had been requested to review the constitutionality of Section 19 of the 1999 Act, a provision applicable to the applicant’s case (see paragraph above). It was only on 10 April 2003 that the Constitutional Court gave its decision (see paragraph above). . Even in the absence of a formal decision, the Court is ready to assume that during this period the examination of the applicant’s case had been suspended awaiting the outcome of the proceedings before the Constitutional Court. . The Court agrees with the Government that it might be reasonable for national courts to await, as a measure of procedural efficiency, under certain circumstances, the outcome of parallel proceedings, including those before the Constitutional Court. However, such a decision must be proportionate and have regard to the special circumstances of the case (see König v. Germany , 28 June 1978, § 110, Series A no. 27; Boddaert v. Belgium , 12 October 1992, § 39, Series A no. 235-D; and Herbst v. Germany , no. 20027/02 , § 78, 11 January 2007 ). . The Court further observes that in principle the obligation of a constitutional court to hear cases within a reasonable time could be construed differently from the way it would be for an ordinary court (see, among other authorities, Süßmann v. Germany , 16 September 1996, §§ 55-57 , Reports of Judgments and Decisions 1996-IV; Tričković v. Slovenia , no. 39914/98 , § 63, 12 June 2001; Leela Förderkreis e. V. and Others v. Germany , no. 58911/00 , § 63, 6 November 2008; and Peter v. Germany , no. 68919/10 , § 47, 4 September 2014). . Nevertheless, it considers that in the present case the issue before the Constitutional Court was not of particular complexity (see, a contrario , Peter , cited above, § 45). It notes in this regard that, on the basis of a prima facie examination of the legal issue, in its decision of 10 April 2003 the Constitutional Court dismissed the applications for constitutional review of Section 19 of the 1999 Act as unnecessary, holding that the premises on which they were based were false ( see paragraph above). . The Court further observes that the Government have not provided any explanation as to why the proceedings before the Constitutional Court took more than three years, in particular against the background of a large number of similar cases pending before the lower courts. It notes in this respect that the States are under the obligation to organise their legal systems so as to ensure compliance with the requirements of Article 6 § 1, including the reasonable-time requirement (see, among many authorities, Guincho v. Portugal , 10 July 1984, § 38, Series A no. 81, and Süßmann , cited above, § 55). . The Court is lastly unable to follow the Government’s argument that the applicant’s case did not belong to a category of cases that by their nature called for special expedition (see paragraph above). . It observes that the notion of “employment disputes” in its case-law is not confined solely to disputes concerning the lawfulness of a suspension or a dismissal, or the determination of a right to a pension, but also includes other employment-related issues, such as the recognition of a right to a professional qualification (see Caleffi v. Italy , 24 May 1991, § 17, Series A no. 206-B), compliance with a “competition clause” (see Wojtunik v. Poland , no. 64212/01 , § 42, 12 December 2006), or entitlement to a parental leave allowance (see Kocsis v. Romania , no. 10395/02 , § 90, 20 December 2007). 45. In the present case the applicant sought redundancy payments when he was dismissed as a result of the insolvency of his employer, a fact which had deprived him of his main source of revenue . Therefore, the Court considers that the applicant had a considerable interest in swift termination of the proceedings, and that special diligence was required on the part of the authorities. . The foregoing considerations are sufficient to enable the Court to conclude that 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. Length of the compensation proceedings (a) The parties’ submissions 47. The applicant complained that the proceedings had lasted almost six years. He stressed that the fact that the case had been remitted three times shows that the domestic courts were not capable of deciding on the question of entitlement to just satisfaction in accordance with the State’s obligations under the Convention. He argued that in assessing the length of the proceedings the Court should take into account the fact that the duration of both sets of proceedings, the labour and the compensation proceedings, amounted to fourteen years. He further argued that he was not responsible for the fact that there was a legal gap in the 2006 Act in respect of his case, but that it was the State that was responsible for systemic issues and deficiencies in legislation. He finally stressed that he had in no way himself contributed to the duration of the proceedings. 48. The Government stressed that when assessing the length of this set of proceedings the Court should take into account the “specific circumstances” as indicated in the case of CE. DI. SA Fortore S. N. C. Diagnostica Medica Chirurgica v. Italy (nos. 41107/02 and 22405/03 , § 39, 2 September 2011). They argued that the duration of the proceedings was due to several remittals of the case, provoked by a legislative gap in the 2006 Act and not by a deficiency in the judicial system. This gap was not filled until the Constitutional Court’s decision of 10 March 2010 (see paragraph above). They finally stressed that all the courts dealing with the applicant’s claim had rendered their decisions quickly and without any delays. (b) The Court’s assessment 49. The period to be taken into consideration began on 13 July 2006 (see paragraph 17 above), when the applicant instituted proceedings, and ended on 8 May 2012 (see paragraph ) , when the Constitutional Court dismissed his constitutional appeal. The proceedings thus lasted five years, nine months and twenty-seven days at four levels of jurisdiction. 50. The Court reiterates that according to its case-law it would not apply the criteria established for assessment of the reasonableness of the duration of the regular proceedings to determine the reasonableness of the length of the proceedings concerning claims for damage sustained due to the length of the regular proceedings. It further considers that the issue of the duration of proceedings should normally not be treated as particularly complex. Moreover, special diligence is required from the State when dealing with cases in which the parties seek redress for damages sustained due to unreasonable length of proceedings (see, for instance, Belperio and Ciarmoli v. Italy , no. 7932/04 , § 42, 21 December 2010) . 51. The Court further observes that it has previously held in respect of the remedies provided for excessive length of proceedings under the Italian “Pinto” law that in principle proceedings should not take more than two years at two levels of jurisdiction, unless special circumstances would justify a longer time for processing of the claims (see CE. DI. SA Fortore S. N. C. Diagnostica Medica Chirurgica, cited above, § 39, and Francesco Quattrone v. Italy , no. 13431/07 , § 33, 26 November 2013 ) . 52. The Court sees no reason to depart from this requirement in respect of the remedies provided by the respondent State. . Turning to the present case, the Court welcomes the changes in the domestic case-law, followed by the legislative amendments to the 2006 Act (see paragraph above). It however considers that the fact that the remittals of the applicant’s case were due to a legislative gap does not justify a longer time for processing his claim. On the contrary, it shows a deficiency in the domestic system, which is imputable to the authorities and not to the applicant (see, among many others, Wierciszewska v. Poland , no. 41431/98 , § 46, 25 November 2003, and Matica v. Romania , no. 19567/02 , § 24, 2 November 2006). . Under these circumstances, t he Court cannot consider reasonable a period of almost six years for adjudicating a claim for damages due to excessive delay. There has accordingly been a breach of Article 6 § 1 also in this respect. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 55. Lastly, the applicant complained that owing to the length of the compensation proceedings his right to an effective legal remedy under Article 13 of the Convention had also been violated. 56. The Court considers that following the Constitutional Court’s decision of 17 May 2010 (see paragraph above) and the remittal of the case to the lower courts, the applicant was in principle given an effective remedy within the meaning of Article 13 concerning his complaint about the length of the labour proceedings (see the principles established in Kudła v. Poland [GC], no. 30210/96 , § 156, ECHR 2000-XI, and Cocchiarella v. Italy [GC], no. 64886/01 , §§ 73-98, ECHR 2006-V). . It further notes that the “effectiveness” of a “remedy” within the meaning of Article 13, does not depend on the certainty of a favourable outcome for the applicant ( see Kudła , cited above, § 157). . Reiterating lastly that while it cannot be ruled out that excessive delays in an action for compensation will render the remedy inadequate (see Paulino Tomás v. Portugal (dec.), no. 58698/00 , ECHR 2003-VIII; Belinger v. Slovenia (dec.), no. 42320/98; and Cocchiarella , cited above, § 86), the Court considers that in the present case the duration of the proceedings, even though amounting to a violation of Article 6 § 1 of the Convention, was not of such significance as to call into question the effectiveness of the remedy as such (see Belperio and Ciarmoli , cited above , § 53) . 59. It follows that this complaint is 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 60. 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 61. The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage. 62. The Government contested the claim. 63. The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 5,200 under that head. B. Costs and expenses 64. The applicant also claimed EUR 4,111.61 for costs and expenses incurred before the domestic courts and for those incurred before the Court. 65. The Government contested the claim as excessive and not supported by sufficient documentary evidence. 66. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,000 covering costs for the proceedings before it and before the domestic courts. C. Default interest 67. 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 complaints concerning Article 6 § admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article § of the Convention on account of the excessive length of the labour proceedings; 3. Holds that there has been a violation of Article § of the Convention on account of the excessive length of the compensation proceedings; 4. 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, the following amounts: (i) EUR 5,200 (five thousand two hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 3,000 (three 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; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 21 May 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. 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