STREHAR v. SLOVENIA - 34787/04 [2011] ECHR 1178 (21 July 2011)

JUDGMENT STRASBOURG 21 July This judgment is final but it may be subject to editorial revision. In the case of Strehar v. Slovenia, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Ganna Yudkivska, President, Boštjan M. Zupančič, Angelika Nußberger, judges, and Stephen Phillips , Deputy Section Registrar , Having deliberated in private on 28 June 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE The case originated in an application (no. 34787/04) 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, Ms Hilda Strehar (“the applicant”), on 6 September 2004 . The applicant was not represented before the Court. The Slovenian Government (“the Government”) were represented by their Agent, T. Mihelič Zitko, State Attorney. The applicant alleged under Article 6 § 1 of the Convention that the length of the proceedings before the domestic courts to which she was a party was excessive. In substance, she also complained that there was no effective domestic remedy in respect of the excessive length of the proceedings (Article 13 of the Convention). On 14 October 2010 the Court decided to communicate the complaints concerning the length of the proceedings and the lack of remedies in that respect to the Government. In accordance with Protocol No. 14, the application was assigned to a committee of three Judges. THE FACTS I. THE CIRCUMSTANCES OF THE CASE The applicant was born in 1943 and lives in Polskava. On 5 September 1997 the applicant instituted civil proceedings before the Slovenska Bistrica Local Court seeking annulment of a purchase contract. On 6 July 1999 the first-instance court annulled the contract. An appeal was lodged. On 24 October 2000 the Maribor Higher Court upheld the appeal and remitted the case for re-examination. Between 12 July 2006 and 15 February 2007 three hearings were held. On 27 February 2007 the applicant withdrew the claim and a decision on termination of proceedings was issued on 21 March 2007. II. RELEVANT DOMESTIC LAW A description of relevant domestic law can be found in the Nezirović v. Slovenia decision (no. 16400/06, 25 November 2008, §§ 13 20). THE LAW I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION The applicant complained about the excessive length of the proceedings. She relied on 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 ...” In substance, 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 [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.” A. Admissibility The Government pleaded non-exhaustion of domestic remedies. They stated, in particular, that the applicant should have availed herself of a just satisfaction claim as provided by the section 25 of the 2006 Act. The applicant did not comment on that issue. The Court observes that t he transitional provision of the 2006 Act, namely section 25, provides for the procedure to be followed in respect of applications where the violation of the “reasonable time” requirement has already ceased to exist and which were lodged with the Court before 1 January 2007. As the proceedings to which the applicant was a party terminated on 21 March 2007, the above provision does not apply to the applicant’s case. The Court further notes that the present application is similar to the case of Maksimovi č v. Slovenia (no. 28662/05, 22 June 2010). In that case the Court dismissed the Government’s objection of non-exhaustion of domestic remedies because it found that the legal remedies at the applicant’s disposal were ineffective (ibid., §§ 21–24). The Court finds that the Government have not submitted any convincing arguments which would require the Court to distinguish it from the above-mentioned case and therefore rejects this objection. The Court further notes that the application is not manifestly ill founded within the meaning of Article 35 § 3 (a) of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Article 6 § 1 The period to be taken into consideration began on 5 September 1997, the day the applicant instituted proceedings with the Slovenska Bistrica District Court, and ended on 21 March 2007, the day the decision terminating the proceedings was issued. It therefore lasted nine years and six months and two levels of jurisdiction were involved. 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). Having examined all the material submitted to it, and having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement (see, for example, Marjan Hriberšek v. Slovenia , no. 36054/02, §§ 16-18, 27 April 2006). There has accordingly been a breach of Article 6 § 1. 2. Article 13 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 concerning the exhaustion of domestic remedies (see paragraphs 14-17 above) and having regard to the fact that the arguments put forward by the Government have already been rejected in the case of Maksimovič v. Slovenia (cited above, §§ 29–30), 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 his right to have her case heard within a reasonable time, as set forth in Article 6 § 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 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 The applicant claimed 140,682 euros (EUR) in respect of pecuniary damage. The applicant explained that this amount consisted of the following expenditure: the price of the apartment she had purchased, the construction of a garage, the purchase of a new garage door, the installation of the sound isolation, the price of one part of the building she had purchased, and, lastly, the façade finishing works. The applicant further claimed EUR 10,000 in respect of non-pecuniary damage. The Government contested both claims. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it considers that the applicant must have sustained non-pecuniary damage in respect of the excessive length of the proceedings and of the lack of an effective remedy. Ruling on an equitable basis, it awards her EUR 8,000 under that head. B. Costs and expenses The applicant did not seek reimbursement of costs and expenses relating to the proceedings before the Convention organs and this is not a matter which the Court has to examine of its own motion (see Motière v. France , no. 39615/98, § 26, 5 December 2000). C. Default interest The Court considers it appropriate that the default interest 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 Declares the application admissible; Holds that there has been a violation of Article 6 § 1 of the Convention; Holds that there has been a violation of Article 13 of the Convention; Holds (a) that the respondent State is to pay, within three months, EUR 8,000 (eight thousand 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; Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 21 July 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen Phillips Ganna Yudkivska Deputy Registrar President BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII