CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 24 novembre 2011

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text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s48E1953 { width:187.27pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block }       FIFTH SECTION             CASE OF GREBENC v. SLOVENIA   (Applications nos. 22174/06 and 24341/06)                 JUDGMENT         STRASBOURG   24 November 2011     This judgment is final but it may be subject to editorial revision. In the case of Grebenc 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 3 November 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in two applications (no. 22174/06 and no.   24341/06) 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   Marjan Grebenc and Mr Blaž Grebenc (“the applicants”), on 4 and 11   May 2006 respectively. 2.     The applicants were represented by Mr Z. Lipej, a lawyer practising in Medvode. The Slovenian Government (“the Government”) were represented by their Agent, Ms N. Pintar Gosenca. 3.     The applicants alleged under Article 6 § 1 of the Convention that the length of the proceedings before the domestic courts to which they were parties was excessive. In substance, they also complained that there was no effective domestic remedy in respect of the excessive length of the proceedings (Article 13 of the Convention). 4.     On 19 February and 6 March 2009 respectively the President of the Section decided to inform the Government of the applications and to request them to submit information under Rule 54 § 2 (a) of the Rules of Court. Further to receipt of the information requested, on 30 September 2010, the President decided to invite the Government to submit written observations on the admissibility and merits of the case (Rule 54 § 2 (b) of the Rules). In accordance with Protocol No. 14, the application was assigned to a committee of three Judges. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE A.     The main proceedings 5.     On 20 April 2000 the applicants’ brother died in a car accident. 6.     On 2 April 2002 the applicants instituted civil proceedings against ZT in the Ljubljana District Court seeking pecuniary and non-pecuniary damage. The applicants also requested exemption from paying the court fees. 7.     On 30 April 2002 the court asked the applicants to complete their request for an exemption from obligation to pay the court fees. After the request was completed, on 12 September 2002, the court upheld it on 30   October 2002. 8.     The first hearing was held on 17 March 2005. 9.     On 25 April 2005 the court held another hearing and decided to deliver a written judgment. The judgment, rejecting the applicants’ claim was served on the applicants on 1 June 2005. 10.     The applicants appealed on 13 June 2005. On 30 November 2005 the Ljubljana Higher Court upheld the applicants’ appeal in part and remitted the case for re-examination. 11.     On 3 April 2006 the applicants withdrew the claim. On 19 May 2006 a decision on termination of proceedings was issued. B.     The proceedings under the 2006 Act 12.     On 19 February and 6 March 2009 respectively, the respondent Government were given notice of the applications. The Government were asked to provide information as to whether section 25 of the 2006 Act applied in respect of the present cases, which would enable the applicants to avail themselves of domestic settlement proceedings before the State Attorney’s Office. 13.     Subsequently, on 6 May 2009, the Government submitted that section 25 of the 2006 Act was not applicable in the present cases since the applicants’ right to a trial within a reasonable time had not been infringed in the impugned domestic proceedings. Therefore, the Government refused to offer the applicants a settlement proposal under section 25 of the 2006 Act. II.     RELEVANT DOMESTIC LAW 14.     The Act on the Protection of the Right to a Trial without Undue Delay (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja , Official Journal, No. 49/2006 – “the 2006 Act”) became operational on 1   January 2007. Section 25 lays down the following transitional rules in relation to applications already pending before the Court: Section 25 - Just satisfaction for damage sustained prior to implementation of this Act “(1)     In cases where a violation of the right to a trial without undue delay has already ceased and the party had filed a claim for just satisfaction with the international court before the date of implementation of this Act, the State Attorney’s Office shall offer the party a settlement on the amount of just satisfaction within four months of the date of receipt of the case referred by the international court for the settlement procedure. The party shall submit a settlement proposal to the State Attorney’s Office within two months of the date of receipt of the proposal of the State Attorney’s Office. The State Attorney’s Office shall decide on the proposal as soon as possible and within four months at the latest... (2)     If the proposal for settlement referred to in paragraph 1 of this section is not acceded to or the State Attorney’s Office and the party fail to negotiate an agreement within four months of the date on which the party filed its proposal, the party may bring an action before the court with jurisdiction under this Act. The party may bring an action within six months of receipt of the State Attorney’s Office reply that the party’s proposal referred to in the previous paragraph was not acceded to, or after the expiry of the period fixed in the previous paragraph for the State Attorney’s Office to decide to proceed with settlement. Irrespective of the type or amount of the claim, the provisions of the Civil Procedure Act concerning small claims shall apply in proceedings before a court.” THE LAW I.     JOINDER OF THE APPLICATIONS 15.     Pursuant to Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given their common factual and legal background. II.     ALLEGED VIOLATION OF ARTICLE 6 § 1 AND 13 OF THE CONVENTION 16.     The applicants complained that the proceedings to which they were parties had been excessively long. They 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 ...” 17.     In substance, the applicants further complained that the remedies available for excessively long 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.     Article 6 § 1 1.     Admissibility 18.     The Government submitted that the applicants’ complaints under Article 6 § 1 of the Convention were unsubstantiated and must therefore be declared inadmissible. The Government stated that the impugned proceedings had lasted only four years and sixteen days for three levels of jurisdiction. In particular, the initial delay of almost three years, which elapsed between the institution of the proceedings and the first hearing, was compensated for by the speedy examination of the applicants’ appeals before the second-instance court. 19.     The applicants contested that argument. 20.     The Court considers, in the light of the parties’ submissions, that this part of the application cannot be declared 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 ground. It must therefore be declared admissible. 2.     Merits (a)     Period to be taken into consideration 21.     The period to be taken into consideration began on 2 April 2002, the date on which the applicants instituted proceedings, and ended on 19 May 2006, when the first-instance court issued a decision on termination of proceedings. 22.     The Court further observes, contrary to the Government’s submissions (see paragraph 18 above), that only two levels of jurisdiction were involved in the examination of the case. It is true that the case was remitted for re-examination by the second-instance court; however it was re ‑ examined by the same first-instance court as the first time. Accordingly, the proceedings lasted four years and two months for two levels of jurisdiction and three instances. (b)     The reasonableness of the length of proceedings 23.     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). 24.     The Court considers that the subject matter did not of itself present special difficulties with regard to the facts or the law and finds that the issue at stake in the proceedings could be regarded as of importance for the applicants. 25.     As to the applicants’ conduct, it does not appear that the applicants caused any significant delays in the proceedings. 26.     With respect to the conduct of the domestic courts, the Court notes in particular that the first hearing was held on 17 March 2005, which was almost three years after the date the applicants instituted the proceedings (see paragraphs 6 and 8 above). It is true that it took the second-instance court only five months to decide on the applicants’ appeal, but the Court considers that the swiftness of the appellate proceedings did not outweigh the initial delay, as a result of which the length of the proceedings became excessive. 27.     In the circumstances of the present case and in the light of the criteria laid down in its case-law (see, mutatis mutandis, Repas v. Slovenia , no. 10288/02, § 23, 6 April 2006; Kotnik v. Slovenia , no. 17330/02, §§   15 ‑ 17; Rogelj v. Slovenia , no. 21415/02, §§ 68-70) the Court considers that length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1. B.     Article 13 28.     In the Government’s view, the applicants had no arguable claim for the purposes of Article 13 as their complaints under Article 6 § 1 were unsubstantiated (see paragraph 18 above). 29.     The Court recalls that Article 13 of the Convention guarantees an “effective remedy before a national authority” to everyone who claims that his rights and freedoms under the Convention have been violated (see Klass   and Others v. Germany , 6 September 1978, § 64, Series A no. 28). However, Article 13 requires a remedy in domestic law only in respect of an alleged grievance which is an arguable one in terms of the Convention (see Boyle and Rice v. the United Kingdom , 27 April 1988, § 52, Series A no.   131). Thus the effect of this provision is to require the existence of an effective remedy to deal with the substance of an “arguable complaint” and to grant appropriate relief (see Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000-XI). 30.     As regards the present cases, the Court notes that it has found a violation of Article 6 § 1 in respect of the length of proceedings (see paragraph 27 above). Hence, the applicants had an “arguable complaint” of a violation of Article 6 § 1 and should therefore have had an effective domestic remedy in that respect. Accordingly, this part of the applications is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention nor is it inadmissible on any other grounds. It must therefore be declared admissible. 31.     The Court further observes that the present applications are similar to the case of Ribič v. Slovenia (no.20965/03, 19 October 2010), in which the Court found that that the legal remedies at the applicant’s disposal were ineffective (ibid., §§ 37-42). 32.     In this connection, the Court finds that the Government have not submitted any convincing arguments which would require it to distinguish the present applications from the aforementioned case. Accordingly, the Court considers that in the present cases there has been a violation of Article 13 on account of the lack of a remedy under domestic law whereby the applicants could have obtained a ruling upholding their right to have their case heard within a reasonable time, as set forth in Article 6 § 1. III.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 33.     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 34.     The applicants each claimed 8,345 euros (EUR) in respect of non-pecuniary damage. 35.     The Government considered the claim unjustified. 36.     The Court considers that the applicants must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards each of them EUR 2,000 under that head. B.     Costs and expenses 37.     Each of the applicants also claimed EUR 1,043 for the costs and expenses incurred before the Court. 38.     The Government did not comment on that claim. 39.     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 observes that the expenses allegedly incurred by the applicants were not itemised or supported by any documentary evidence. In the absence of any itemised bill it is difficult to assess the reasonableness and necessity of the costs made by the applicants. In such circumstances the Court dismisses the applicants’ claims under this head in total. C.     Default interest 40.     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 1.     Joins the applications and declares them admissible;   2.     Holds that there has been a violation of Article 6 § 1 of the Convention;   3.     Holds that there has been a violation of Article 13 of the Convention;   4.     Holds (a)     that the respondent State is to pay to each of the applicants, within three months, EUR 2,000 (two 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;   5.     Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 24 November 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen Phillips   Ganna Yudkivska Deputy Registrar   President