BELTRAM AND BELTRAM CEROVŠEK v. SLOVENIA - 10017/10 - Committee Judgment [2013] ECHR 955 (10 October 2013)

JUDGMENT STRASBOURG 10 October 2013 This judgment is final but it may be subject to editorial revision. In the case of Beltram and Beltram Cerovšek v. Slovenia, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Angelika Nußberger, President, Boštjan M. Zupančič, Helena Jäderblom, judges, and Stephen Phillips , Deputy Section Registrar, Having deliberated in private on 17 September 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE The case originated in an application (no. 10017/10) 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 two Slovenian nationals, Mr Marijan Beltram and Mrs Anu ška Beltram Cerovšek (“the applicants”), on 9 February 2010. The applicants were represented by Mr R. Završek, a lawyer practising in Ljubljana. The Slovenian Government (“the Government”) were represented by their Agent. On 22 November 2012 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE The applicants were born in 1977 and live in Ljubljana. On 2 October 2007 the applicants instituted civil proceedings against O. J. before the Ljubljana District Court with regard to the defects of the apartment they had bought from her. . On 2 April 2008 the applicants requested a hearing. . On 4 April 2008 the Ljubljana District Court responded that the applicants’ case could not be granted priority and that it would not be possible to schedule a hearing until the end of 2008. . On 6 February 2009 the applicants lodged a supervisory appeal. They stressed inter alia that according to the Court Rules the first instance decision should be issued within eighteen months whereas their case had already been pending for fourteen months. . On 26 February 2009 the President of the Ljubljana District Court dismissed the applicant’s supervisory appeal, informing the applicants that the case could not be granted priority and that it was foreseen that, according to the order of precedence for non-priority cases a hearing would be scheduled in the second half of 2009. . On 5 March 2009 the applicants lodged a motion for a deadline with the Ljubljana Higher Court. . On 27 March 2009 the Ljubljana Higher Court dismissed the applicants’ motion for a deadline. It referred to the order of precedence and to the fact that their case was not considered to be a priority case. . On 25 May 2009 the applicants lodged a constitutional appeal against the dismissal of the supervisory appeal and motion for a deadline, alleging that their right to a trial within reasonable time had been violated. . On 3 November 2009 the Constitutional Court dismissed the applicants’ constitutional appeal. . On 22 January 2010 the Ljubljana District Court held a main hearing and appointed a construction expert to assess the submissions in the claim. . On 2 March 2010 the Ljubljana District Court dismissed the expert appointed in January 2010 and appointed another expert. . Two hearings were postponed between April and June 2010. . On 27 September 2010 the court held a hearing, heard the expert witness, issued an order addressed to the construction company K. Z. to provide the court with documentation concerning the construction of the apartment and adjourned the hearing until 8 December 2010. . On 15 October 2010 the company K. Z. lodged an appeal against the order of the court to provide it with the documentation on the grounds that the order was insufficiently precise. . A hearing scheduled for 8 December 2010 was postponed due to the appeal of the company K. Z. pending before the higher court. . On 17 February 2011 the Ljubljana Higher Court granted the appeal of K. Z. and remitted the case back to first instance. . At the hearing on 9 March 2011 the Ljubljana District Court indicated that a new order with regard to the company K. Z. would be issued and adjourned the hearing. . On 24 March 2011 the Ljubljana District Court issued a new order addressed to the company K. Z. . After the company K. Z. informed the court by letter dated 14 April 2011 that they would make the requested documentation available at the company’s office, the court on 19 April 2011 requested the expert to inspect the documentation and supplement the expert opinion. . On 7 October 2011 the expert submitted the supplementary opinion. . At the hearing on 11 January 2012 the court granted the applicant’s motion to appoint an expert on noise exposure. . On 4 April 2012 the court appointed an expert on noise exposure. . On 25 May 2012 the court received the expert opinion. . On 24 August 2012 the court held a main hearing. It granted the motion that the construction expert opinion be amended by taking into account the opinion on noise pollution. . On 15 October 2012 the construction expert submitted his supplemented opinion. . On 15 March 2013 the Ljubljana District Court held a main hearing and heard the construction expert. On the same date the court issued its decision granting in large part the claim of the applicants. The decision was served to the applicants on 17 April 2013. Both parties appealed. . The proceedings are still pending before the Ljubljana Higher Court. II. RELEVANT DOMESTIC LAW For relevant domestic law see Žunič v. Slovenia, (dec.) no. 24342/04, §§ 16-26, 18 October 2007, and Žurej v. Slovenia (dec.), no. 10386/03, 16 March 2010. In addition, according to Article 50 of the Court Rules ( Sodni red , Official Journal, No. 17/95, with the amendments published in Official Journal No. 82/2007), civil proceedings before the first instance court that have lasted more than eighteen months are considered as judicial delay. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION The applicants complained that the length of the 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 The Government raised an objection, arguing that the applicants had not exhausted the domestic remedies available to them. The Court considers that the question whether the requirement that an applicant must exhaust domestic remedies has been satisfied in the instant case is closely linked to the complaint concerning the existence of an effective remedy within the meaning of Article 13 of the Convention. It therefore considers that this objection raised by the Government under Article 6 § 1 of the Convention should be joined to the merits of the complaint under Article 13 of the Convention. It further notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits The Court considers that the period to be taken into consideration began on 2 October 2007, when the applicants instituted proceedings before the Ljubljana District Court, and has not yet ended. The relevant period has therefore so far lasted almost six years at two levels of jurisdiction. 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). Applying the criteria, the Court observes that the proceedings do not appear to be complex and no significant delays in the proceedings can be attributed to the applicants. But it nevertheless took the first instance court more than two years to schedule the first hearing, and further three years and a half to deliver a judgment. In this context, the Court reiterates that it is for the State to organise its legal system in such a way to enable its courts to comply with the requirement of Article 6 § 1 of the Convention (see, mutatis mutandis , Tusa v. Italy , 27 February 1992, § 17, Series A no. 231-D, Jama v. Slovenia , no. 48163/08 , § 36, 19 July 2012 ). Having examined all the material submitted to it and having regard to its case-law on the subject (see Mušič v. Slovenia , no. 37294/02, §§ 16-18 , 1 June 2006; Mulej v. Slovenia , no. 42252/02, §§ 16-18 , 29 June ) , the Court, for the reasons set out above, considers that in the instant case the overall length of the proceedings so far has been excessive and has failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION The applicants also complained of the absence of effective domestic remedies in respect of the excessive length of the proceedings, which falls to be examined under Article 13, which 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 Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits The applicants argued that there had not been any remedy available to them in order to accelerate the proceedings or to obtain compensation for their undue length. The Government argued that the applicants had the remedies provided for by 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”) at their disposal, which they believed had been proven to be effective. They maintained that the applicants lodged the acceleratory remedies as early as one year and four months after the institution of the proceedings which was premature and that they could have re-lodged the remedies at a later stage of proceedings. The Government further stressed that despite the dismissal of their acceleratory remedies as unfounded, the applicants will have the opportunity to claim just satisfaction after the final resolution of the case, as provided for in the 2006 Act. Relying on the Court’s decision in the case of Žunič (cited above), they further argued that in the aforementioned case, the Court had held that the condition of the final resolution of the case for filing a just satisfaction claim was a legitimate way of ensuring that just satisfaction covered the entire duration of the proceedings and thus prevented the repeated filing of such claims while proceedings were still pending. 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). The Court further reiterates that remedies available to a litigant at domestic level for raising a complaint about the length of proceedings are “effective” within the meaning of Article 13 of the Convention if they “[prevent] the alleged violation or its continuation, or [provide] adequate redress for any violation that [has] already occurred” (ibid., § 158). Article 13 therefore offers an alternative: a remedy is “effective” if it can be used either to expedite a decision by the courts dealing with the case, or to provide the litigant with adequate redress for delays that have already occurred (ibid., § 159). The same is necessarily true of the concept of an “effective” remedy within the meaning of Article 35 § 1 (see Mifsud v. France (dec.) [GC], no. 57220/00, ECHR 2002-VIII). 48. In the case of Grzinčič v. Slovenia (no. 26867/02, 3 May 2007), followed by the decision in Korenjak v. Slovenia ((dec.) no. 463/03, 15 May 2007), the Court, basing itself on an assessment of the legislative provisions of the 2006 Act, found that the aggregate of remedies provided for in cases involving excessively long proceedings pending at first and second instance was effective in the sense that the remedies 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 ( Grzinčič , cited above, § 98). In the subsequent case of Žunič (cited above), the Court specified that it was indispensable that the proceedings, which had already lasted a long time, should be finally resolved particularly promptly following the exhaustion of the acceleratory remedies ( ibid ., § 50). Moreover, it emphasised that the national authorities should have ensured that the aggrieved party had prompt access to the compensatory remedy once he or she had made use of the acceleratory remedies ( ibid. , §53). In the case of Jama v. Slovenia (no. 48163/08 , 19 July 2012) the Court found that in the circumstances of that case both the acceleratory remedies and the compensatory remedy had proven to be ineffective, since no significant progress had been made after the applicant had availed himself of the acceleratory remedies, and he also had not been afforded prompt access to the compensation claim with respect to damages sustained owing to the unreasonable length of the proceedings ( ibid. , § § 47-49) . The Court notes that by the time the applicants lodged the acceleratory remedies, which were dismissed as premature, their case was already pending before the first instance court for fourteen months, and that no action had been taken by the court during this period. The Court observes that, according to Article 50 of the Court Rules, proceedings that had been pending before the first instance courts for more than eighteen months were affected by judicial delays. Relying on this provision, the applicants could have expected that after fourteen months at least some progress would have been made on their case. Therefore the Court cannot follow the submissions of the Government that the applicants’ acceleratory remedies had been lodged prematurely. The Court notes that as a consequence of the system provided by the 2006 Act, whereby access to a compensation claim is dependent on the termination of the proceedings, the applicants have not been afforded prompt access to just satisfaction claim for the undue delay after having exhausted the acceleratory remedies. In view of the above, the Court finds that under the circumstances of the present case both of the avenues have been shown not to have been effective. Accordingly, the Court concludes that there has been a violation of Article 13 of the Convention on account of the lack of an effective remedy. In view of this conclusion, it also rejects the Government’s objection concerning the exhaustion of domestic remedies as to Article 6 of the Convention. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION Lastly, the applicants also invoked Articles 6 § 1 of the Convention with regard to the alleged unfairness of the proceedings, Article 14 of the Convention and Article 1 of Protocol No. 1 to the Convention. The Court recalls that in accordance with Article 35 of the Convention, it may only consider the complaints raised by the applicants, after the applicants had exhausted all domestic remedies. In this respect the Court notes that the proceedings are still pending. Accordingly, the applicant’s complaints are premature and must be rejected for non-exhaustion of domestic remedies within the meaning of Article 35 §§ 1 and 4 of the Convention. IV. 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 applicants claimed together 12,000 euros (EUR) for pecuniary damages sustained and 4,000 EUR in respect of each for non-pecuniary damages. The Government contested the claims. The Court cannot speculate on any pecuniary damages as a result of the overall length of proceedings and therefore rejects this claim. Nevertheless, the Court considers that the applicants must have sustained non-pecuniary damage. Ruling on equitable basis, it awards them jointly EUR 4,000 under that head. B. Costs and expenses The applicants also claimed EUR 3,584 for the costs and expenses incurred before the Court. The Government contested the claim. 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, the Court notes that the representative’s fees exceeded those foreseen under the domestic scale and that the applicants concluded a special agreement on a higher fee for legal representation before the Court, which the Court finds unreasonable, since, for example, the representative was allowed to use the Slovenian language before the Court. The Court considers it reasonable to award the applicants the sum of EUR 1,500 under this head. C. Default interest 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 complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 and Article 13 of the Convention; 3. Holds (a) that the respondent State is to pay the applicants jointly, within three months, the following amounts: (i) EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, (ii) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable , plus any tax that may be chargeable to the applicants, 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; 4. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 10 October 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen Phillips Angelika Nußberger Deputy Registrar President BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII