CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 12 juin 2003

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Ress , President ,   Mr   I. Cabral Barreto ,   Mr   P. Kūris ,   Mr   R. Türmen ,   Mr   B. Zupančič ,   Mrs   M. Tsatsa-Nikolovska ,   Mr   K. Traja, judges , and Mr V. Berger , Section Registrar , Having regard to the above application lodged on 1 March 2000, Having deliberated, decides as follows: THE FACTS The applicant, Ivo Janez Cundrič, is a Slovenian national, who was born in 1947 and lives in Bohinjska Bistrica, Slovenia. He is represented before the Court by Mr Gruden, a lawyer practising in Ljubljana, Slovenia. The facts of the case, as submitted by the applicant, may be summarised as follows. On 5 February 1994 the applicant in his position of a technical director in company A. that was at the time run by the State sent a letter to his executive director criticising the company’s business policy. Consequently, on 21 February 1994, his employer transferred the applicant to a different post. This decision was notified to the applicant on 15 March 1994. He challenged the decision before the company’s board of directors. On 25 April 1994, having received no answer, the applicant initiated proceedings before the Ljubljana Labour and Social Court ( Delovno in socialno sodišče ). On 6 May 1994 the employer decided that the applicant’ services were no longer needed by the company and put him on a waiting list pending the availability of a suitable post. Moreover, he should have been available on 24 hours’ notice from his employer. The applicant also challenged this decision in his action. At an unspecified date the Labour and Social Court joined these proceedings to another set of work-related proceedings initiated by the applicant against the same company in 1993. The first hearing was held on 10 October 1996 and followed by another on 15 April 1997. The applicant claims that his employer caused several hearings to be postponed, namely those scheduled for 22 November 1994, 17 February 1995, 11 September 1996 and 25 March 1997. Others set for12   October 1995 and 4 December 1996 were allegedly postponed by decisions of the court. The applicant claims that a hearing due to take place on 5   November 1996 was postponed on account of the Court’s considerable backlog. On 29 January 1997 the Labour and Social Court handed down a judgment rejecting the work-related action initiated in 1993. The applicant appealed against the decision. On 28 May 1997 the applicant requested that the judge in the case be replaced because she had postponed several hearings out of bias. The judge explained that the hearings had been postponed because the respondent employer was evading them. She was, however, aware of this, and was looking for alternative means of collecting enough evidence to come to a ruling in the matter. On 2 July 1997, having found that the judge’s decisions to postpone the hearings were justified, the Labour and Social Court rejected the applicant’s request. On 10 September 1997 the Labour and Social Court ruled in the second set of proceedings by rejecting the applicant’s request to be reinstated as a technical director and to be allowed to continue his work. On 23 October 1997 the applicant appealed to the Higher Labour and Social Court. For one year, nothing was done in the matter. Having repeatedly urged the Higher Labour and Social Court to rule, the applicant seized the Supreme Court on 31 August 1998 and the Constitutional Court on 11   December 1998. He completed his constitutional appeal on 4   January   1999. As the matter was still pending, the applicant failed before both instances on the ground of non-exhaustion of available remedies, on 15   September 1998 and 2 February 1999 respectively. Moreover, after several renewals of the applicant’s placement on the waiting list, he was dismissed by the company A. on 17 March 1999. In 1999, the applicant also turned to the Petition Commission of the Slovenian Parliament, to the Ombudsman for Human Rights and again to the Higher Labour and Social Court to accelerate the proceedings. Further, on 5 March 1999, the applicant also denounced two former chief executive officers of company A. to the State Prosecutor for different offences under the Criminal Code, allegedly committed by their decision to remove him from his post and to transfer him. On 20   September   1999 the Prosecutor concluded that the alleged criminal offences could not be prosecuted ex officio and that the applicant himself could initiate criminal proceedings concerning them. Finally, the Higher Labour and Social Court ruled in the second set of work-related proceedings on 14 January 2000, annulling the first instance judgment and referring the matter back to the Ljubljana Labour and Social Court. The proceedings are still pending. COMPLAINTS 1.     Invoking Article 6 of the Convention, the applicant complains of the length of the proceedings before the domestic courts and the arbitrariness of the latter. He also alleges a violation of Article 13, claiming that no effective remedies were available to him before the domestic fora. 2.     Under Article 10 of the Convention, the applicant alleges that his right to freedom of expression was violated when his employer, having received the letter criticising the company’s business policy, removed him from his post. The applicant claims that in deciding to forbid him to come to work and to put him on the waiting list, thus preventing him from leaving his home, the employer had violated his right to freedom of movement under Article 2 of Protocol No.4. In the applicant’s view these actions together with the proceedings and their outcome before the Ljubljana Labour and Social Court amount to a violation of Article 3 of the Convention. THE LAW 1.     Concerning the complaint under Articles 6 and 13 of the Convention, the applicant alleges that the proceedings before the domestic courts are prolonged and arbitrary and that no effective remedy lies.   Article 6 provides as far as relevant: “1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal established by law...” Article 13 reads: “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)     Inasmuch as the complaints concern the length of proceedings and the effectiveness of remedies available in Slovenian law, the Court considers that it cannot determine the admissibility of the complaints. It is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of these complaints to the respondent Government.   b)     As regards the complaint concerning the unfairness of the proceedings, the Court notes that the proceedings are still pending before the domestic courts. The Courts recalls that such allegations should be examined in the light of all the circumstances of the case. Therefore, this part of the application is premature. The Court finds that domestic remedies have not been exhausted as required by Article   35   §   1 of the Convention. This part of application should therefore be rejected under Article 35 § 4 of the Convention.   2.     Under Article 10 of the Convention, the applicant complains that his right to freedom of expression was violated by his employer as he was removed from his post because he had openly expressed his opinion concerning the company’s business policy. The applicant was also put on a waiting list and was not able to move freely in case the employer might contact him for an available post. This, the applicant alleges, violated his right to freedom of movement under Article 2 of Protocol No. 4. Additionally, the applicant claims his employer’s actions represent inhuman and degrading treatment and are thus in breach of Article 3. In the applicant’s view these actions together with the proceedings and their outcome before the Ljubljana Labour and Social Court amount to a violation of Article 3 of the Convention. Article 3 states: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 10 provides: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. ...” Article 2 of Protocol No. 4 reads as follows: “1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. 2. Everyone shall be free to leave any country, including his own. 3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public , for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.” As regards the applicant’s complaints under Articles 3 and 10 of the Convention and Article 2 of Protocol No. 4, the Court notes that on 25   April   1994 the applicant seized the Ljubljana Labour and Social Court in order to challenge his employer’s decision to remove him from his post, allegedly as a consequence of criticism of his company’s business policy. In the context of those proceedings, he later challenged his employer’s decision to put him on a waiting list pending the availability of a suitable post. Regard being to the fact that those proceedings are still pending and that their outcome is unknown, the Court concludes that this part of the application is premature. The Court finds that domestic remedies have not been exhausted as required by Article 35 § 1 of the Convention. This part of application should therefore be rejected under Article 35 § 4 of the Convention. For these reasons, the Court unanimously Decides to adjourn the examination of the applicant’s complaints about the length of proceedings and about the effectiveness of the domestic remedies; Declares the remainder of the application inadmissible.   Vincent Berger   Georg Ress   Registrar   President