CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 décembre 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                           Application No. 28400/95                       by Ljubo MAJARIC                       against Slovenia        The European Commission of Human Rights (First Chamber) sitting in private on 3 December 1997, the following members being present:              Mrs    J. LIDDY, President            MM     M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs    M. HION            Mr     R. NICOLINI              Mrs    M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 13 December 1994 by Ljubo MAJARIC against Slovenia and registered on 1 September 1995 under file No. 28400/95;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      21 June 1996 and the observations in reply submitted by the      applicant on 28 June 1997;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a Slovenian national born in 1952. He lives in Nova Gorica. The facts of the case, as submitted by the parties, may be summarised as follows.   A.    Particular circumstances of the case        On 6 December 1991 the applicant was charged with sexual assault on a minor and abduction of minors under Article 103 para. 1 in conjunction with Article 96 paras. 2 and 3 of the Criminal Code. He was detained on remand.        On 30 April 1992 the applicant was released from detention on remand, but was re-detained on 16 June 1992 pursuant to the First Instance Court`s decision in view of the nature of the offenses and danger of their repetition.        In the meantime, on 5 June 1992, the applicant's trial opened before the Nova Gorica First Instance Court, but was adjourned the same day.        On 28 August a number of victims were heard and on 3 September 1992 the First Instance Court again adjourned the applicant's trial due to the applicant`s illness.        By decision of the First Instance Court dated 17 September 1992, the applicant was again released.        On 28 September 1992, the trial should have continued but the applicant excused himself because of illness. The trial was adjourned sine die.        On 21 July 1992, the prosecutor lodged a demand for investigation in relation to another sexual assault on a minor, which had been discovered in the course of the proceedings. An investigation was open and an indictment was brought against the applicant on 18 January 1993. The applicant entered a plea against the indictment which was rejected on 15 February 1993. On 17 March 1993, the court decided to join the two proceedings.        On 2 June 1993 the prosecutor requested further investigation on the ground that there was reasonable suspicion that the applicant had also criminally neglected and maltreated a minor under Article 96 paras. 1 and 2 of the Criminal Code.        On 21 October 1993 a preliminary charge was filed for these acts and on 28 March 1995 the court again decided to join these proceedings.        In the period from 18 February 1997 to 14 July 1997 several hearings were held before the First Instance Court (Okrozno sodisce) in Nova Gorica, but there has been no first instance judgment to date.   B.    Relevant domestic law        Article 160 of the Constitution of the Republic of Slovenia provides for the jurisdiction of the Constitutional Court. The Constitutional Court has jurisdiction, amongst other matters, to determine complaints of breaches of human rights and fundamental freedoms by specific acts.        Article 50 of the Constitutional Court Act reads as follows:        "1. Any person may, under the conditions determined by this Act,      lodge a constitutional complaint with the Constitutional Court      if he/she believes that his/her human rights and basic freedoms      have been violated by a specific act of a state body, local      community body or public corporation."        Article 51 of the Constitutional Court Act reads as follows:        "1.    A constitutional complaint may be lodged only after all      remedies have been exhausted.         2.    Before exhaustion of all extraordinary remedies, the      Constitutional Court may exceptionally decide on a constitutional      complaint if the alleged violation is obvious and if the      complainant would suffer irreparable consequences as a result of      the implementation of the individual act."        Articles 72 and 73 of the Law on Courts provide that, in case of delay of proceedings, any party may address a "supervisory appeal" (nadzorstvena pritozba) to the president of the court or to the Ministry of Justice. The president of the court or the Ministry request the judge dealing with the case to prepare a report as to the state of the case and to reply to the allegations of the party. The Ministry may also refer the application to a higher court, which is requested to examine the functioning of the court and report to the ministry on the findings.     COMPLAINTS        The applicant complains under Article 6 para. 1 of the Convention about the length of his criminal proceedings which are still pending before the first instance. The applicant claims that there were no hearings from September 1992 until February 1997.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 13 December 1994 and registered on 1 September 1995.        On 12 April 1996 the Commission decided to communicate the applicant's complaint concerning the length of the criminal proceedings to the respondent Government and to declare the remainder of the application inadmissible.        The Government's written observations were submitted on 21 June 1996. The Government`s observations were sent to the applicant for his observations   to   be   submitted   by 13 August 1996, and again in January 1997 and April 1997 with an extension of the time-limit until 31 May 1997. The applicant only replied on 28 June 1997.     THE LAW        The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention about the length of proceedings which began in December 1991 and are still pending before the first instance court.        Article 6 (Art. 6) of the Convention, insofar as relevant, provides as follows:        "1.    In the determination of his civil rights and obligations or      of any criminal charge against him, everyone is entitled to a      fair and public hearing within a reasonable time..."        The Government state that the only remedy the applicant had at his disposal to accelerate the criminal proceedings was the "supervisory appeal" in accordance with Article 72 of the Law on Courts. In the case of "supervisory appeal" the president of the court or the Ministry do not issue any decision, but merely report to the party on their findings. The Government noted that the applicant filed such an appeal several times, last on 27 May 1994.        The Government conclude that, in the case of delay of proceedings, it is not possible to lodge a constitutional complaint.        The applicant claims that his rights are still being violated, that there is no rule of law in Slovenia and that he is not allowed to prove his innocence.        The Commission recalls the Convention organs' case-law, according to which the decisive question in assessing the effectiveness of a remedy concerning a complaint about the length of proceedings is whether an applicant can raise this complaint before domestic courts by claiming specific redress; in other words, whether a remedy exists that could answer his complaints by providing a direct and speedy, and not merely indirect, protection of the rights guaranteed in Article 6 para. 1 (Art. 6-1) of the Convention (cf. Eur. Court HR, the Deweer v. Belgium judgment of 27 February 1980, Series A no. 35, p. 16, para. 29).        The Commission notes that a "supervisory appeal" brought under Article 72 of the Law on Courts provides no guarantee that proceedings will be accelerated and results in no obligation on the court concerned. The Commission finds that the "supervisory appeal" is not an effective remedy within the meaning of the Convention. The Government and the applicant concur that it was also not open to the applicant to file a constitutional complaint with the Constitutional Court and that there was therefore no effective remedy in this case. It follows that the present application cannot be declared inadmissible under Article 26 (Art. 26) of the convention.        As to the length of the applicant`s criminal proceedings, the Commission considers, in the light of the criteria established by the case-law of the Convention organs on the question of "reasonable time", and having regard to all the information in its possession, that an examination of the merits of the complaint is required.        For these reasons, the Commission, unanimously,        DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE, without      prejudging the merits of the case.       M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                          of the First Chamber