CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 19 septembre 2017

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s93654821 { width:16.99pt; display:inline-block } .sB8987CE9 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s5F897A7E { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt } .s7E985A65 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; font-size:1pt } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .sBAD0D18F { width:1.87pt; display:inline-block } .s165BD465 { width:190.1pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } .s76CF415B { page-break-before:always; clear:both } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s6B505E72 { margin:0pt; padding-left:0pt } .sA56BACAB { font-family:Arial; font-weight:bold; list-style-position:inside } .s13783063 { width:6.24pt; font:7pt 'Times New Roman'; display:inline-block } .s3537C2D6 { font-weight:normal }     FOURTH SECTION DECISION Application no. 51388/13 Franjo KNEŽEVIĆ and others against Slovenia The European Court of Human Rights (Fourth Section), sitting on 19   September 2017 as a Chamber composed of:   Ganna Yudkivska, President,   Vincent A. De Gaetano,   Paulo Pinto de Albuquerque,   Faris Vehabović,   Carlo Ranzoni,   Georges Ravarani,   Marko Bošnjak, judges, and Marialena Tsirli, Section Registrar, Having regard to the above application lodged on 5 August 2013, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having deliberated, decides as follows: THE FACTS 1.     A list of the applicants is set out in the appendix. 2.     The Slovenian Government (“the Government”) were represented by their Agent, Mrs A. Vran, State Attorney. The Croatian Government and the Government of Bosnia and Herzegovina, who had been notified by the Registrar of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44 § 1 of the Rules of Court), did not indicate that they intended to do so. A.     The circumstances of the case 3.     The facts of the case, as submitted by the parties, may be summarised as follows. 1. Civil proceedings 4.     On 24 October 1994 the applicants each instituted separate civil proceedings with the Koper Labour Court against their employer, the company L.K., claiming the repayment of a loan which they had previously given it in the form of bonds. 5.     On 27 October 1994 the court decided to join the proceedings. 6.     On 29 March 2002 the Koper Local Court adjourned the case and ordered the applicants’ representative to submit within sixty days an original power of attorney for the second and third applicants and new addresses in respect of all three applicants. The time-limit for the submission of the documents was subsequently prolonged. 7.     The applicants’ representative submitted a fresh power of attorney in respect of the first applicant and requested a further extension of the time-limit with respect to the second and third applicants, which was granted. However, he did not submit the requested documents. 8.     On 10 December 2003 the Koper Local Court rejected the second and third applicants’ claims on procedural grounds for failure to present a valid power of attorney. The two applicants appealed. Their appeals were dismissed by the Koper Higher Court on 23 January 2007. 9.     On 28 September 2007 the Koper Local Court held a hearing in respect of the first applicant’s claim and dismissed it. The first applicant appealed. 10.     On 8 October 2008 the Koper Higher Court dismissed the first applicant’s appeal and he then lodged a constitutional complaint. 11.     On 2 November 2009 the Constitutional Court rejected the constitutional complaint. 2. Proceedings concerning a claim for non-pecuniary damage on account of alleged delays in the above proceedings 12.     On 19 June 2009, after rejecting offers made by the State Attorney’s Office, the applicants, relying on the 2006 Act on the Protection of the Right to a Trial without Undue Delay (“the 2006 Act”), each separately brought claims in respect of non-pecuniary damage incurred due to alleged unreasonable length of proceedings. The cases were then dealt with jointly by the Kranj Local Court. 13.     On 28 December 2010 the Kranj Local Court found that the applicants’ right to a trial within a reasonable time had been breached. It ordered the State to pay 2,925 euros (EUR) to the first applicant, EUR 1,620 to the second and the third applicant and ordered that each party had to bear their own costs. The court dismissed the remainder of the claims. The applicants appealed. 14.     On 9 January 2013 the Ljubljana Higher Court dismissed the applicants’ appeal. B.     Relevant domestic law and practice 1. Act on the Protection of the Right to a Hearing without Undue Delay (“the 2006 Act”) 15.     For relevant domestic law with respect to length of proceedings see Grzinčič v. Slovenia (no. 26867/02, §§ 35-48, 3 May 2007). In particular, section 20(6) of the 2006 Act states that the provisions of the Civil Procedure Act concerning small claims apply in proceedings concerning compensation for non-pecuniary damage, irrespective of the type or amount of claim. 2. Constitutional Court Act 16.     The following provisions of the Constitutional Court Act (Official Gazette no. 15/94, with relevant amendments) are relevant to the present case: Section 50 “(1) Where there has been a violation of human rights or fundamental freedoms, a constitutional complaint may, under the conditions determined by this Act, be lodged against individual acts by which State authorities, local authorities, or bearers of public authority have decided on the rights, obligations, or legal entitlements of individuals or legal entities ...” Section 54 “(1) The Constitutional Court decides as a panel of three Constitutional Court judges (hereinafter referred to as a panel) at a closed session whether to initiate proceedings on the basis of a constitutional complaint.” Section 55a “(1) A constitutional complaint is not admissible if the violation of human rights or fundamental freedoms [alleged] did not have serious consequences for the complainant. (2) It is deemed that there has been no violation of human rights or fundamental freedoms having significant consequences for a complainant with regard to individual decisions: – issued in small claims disputes in accordance with the act which regulates civil procedure, or in other disputes if the value in dispute for the complainant does not exceed the amount which is determined by the definition of small claims disputes in the act which regulates civil procedure; – concerning costs of proceedings, where such a decision alone has been challenged in the constitutional complaint; – issued in property trespass disputes; – issued in minor offence cases. (3) Irrespective of the preceding paragraph, the Constitutional Court may in particularly justified cases decide exceptionally on a constitutional complaint against the individual decisions referred to in the preceding paragraph, notably where the decision appealed against concerns an important constitutional question which goes beyond the importance of the actual case.” 3. Case-law of the Constitutional Court 17.     The Government submitted a number of decisions taken in cases falling under section 55a(2) of the Constitutional Court Act in which the Constitutional Court had accepted constitutional complaints for consideration on their merits. 18.     In particular, they submitted eleven decisions issued in minor offence proceedings (Up-3663/07 of 19 June 2009; Up-320/10 and Up-456/10 of 9 April 2010; Up-319/10 of 23 June 2010; Up-847/10 of 16   September 2010; Up-1293/10 of 10 October 2011; Up-1544/10 of 10   October 2011; Up-1220/11 of 3 April 2012; Up-965/11 of 3 April 2012; Up-187/13 of 5 September 2014; Up-375/13 of 5 September 2014; and Up-718/13 of 4 November 2014), and two decisions given in costs-only proceedings (Up-1547/08 and U-I-147/08 of 16 April 2009 and Up-1454/10 of 10 October 2011). 19 .     Furthermore, they submitted three Constitutional Court decisions in which the constitutional complaint had been lodged against lower court decisions issued in a small claims dispute or in which the value in dispute for the complainant did not exceed the amount determined by the definition of a small claim (EUR 2,000). In decision no. Up-109/12 of 23   January 2014 the Constitutional Court accepted a constitutional complaint for consideration which raised questions of discrimination against people with disabilities in a case concerning severance pay which was below EUR   2,000. Decision no. Up-584/12 of 2 April 2013 concerned a defamation claim amounting to EUR 2,000, whereas the constitutional complaint involved raised freedom of expression issues. In decision no. Up-234/14 of 4 November 2014 the Constitutional Court accepted a constitutional complaint for consideration in a case in which the disputed amount was lower than EUR 2,000 but which raised questions of equal protection of rights. 20.     In all of the above cases the Constitutional Court concluded that the complainants had succeeded in arguing that their case represented an important constitutional question and had thus fulfilled the conditions for consideration of the constitutional complaint under section 55a(3) of the Constitutional Court Act. 21.     The Government also referred to seven cases in which the Constitutional Court had rejected constitutional complaints lodged against decisions in small claims disputes (Up-308/11 of 6 March 2012; Up-441/13 of 10 September 2013; Up-1201/12 of 10 September 2013; Up-1131/12 of 30 September 2013; Up-132/13 of 30 September 2013; Up-925/12 of 15   April 2014; and Up-368/14 of 12 September 2014). In such cases the Constitutional Court examined in some detail whether the complainants had complied with the criterion of there being an important constitutional question at stake. COMPLAINTS   22.     The applicants complained under Articles 6 and 13 of the Convention that the proceedings had lasted for an unduly long time and that they had not received adequate compensation for non-pecuniary damage. THE LAW A. Complaint under Article 6 § 1 of the Convention 23.     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 ...” 24.     The Government objected that the applicants had failed to exhaust domestic remedies because they had not lodged a constitutional complaint against the Ljubljana Higher Court’s judgment of 9 January 2013 (see paragraph 14 above), which in their view constituted an effective remedy in small claims disputes. In support of their argument, they relied on the case-law of the Constitutional Court (see paragraphs 17-21 above). 25.     The applicants did not contest the Government’s arguments, but stated in their application that they had not lodged a constitutional complaint as it would in any event have been inadmissible. 26.     The Court observes that the purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions. That rule is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. Thus the complaint intended to be made subsequently to the Court must first have been made – at least in substance – to the appropriate domestic body, and in compliance with the formal requirements and time-limits laid down in domestic law (see, among other authorities, Sejdovic v. Italy [GC], no. 56581/00, §§ 43-44, ECHR 2006 ‑ II). 27.     The Court notes at the outset that it has already held that, as regards applications lodged against Slovenia, applicants are in principle required to lodge a constitutional complaint as part of the process of exhaustion of domestic remedies (see Bradeško and Rutar Marketing d.o.o. v. Slovenia (dec.), no. 6781/09, § 32, 7 May 2013). 28.     It further observes that section 55a(1) of the Constitutional Court Act provides that a constitutional complaint is inadmissible if the alleged violation of human rights or fundamental freedoms did not have serious consequences for the complainant. Paragraph two of that section introduces four categories of cases in which there is a presumption that no such significant consequences have been incurred, namely small claims disputes, including disputes under the 2006 Act (see paragraph 15 above), costs-only proceedings, property trespass disputes and minor offence cases. However, under section 55a(3) of the Act, those types of cases can exceptionally be accepted for consideration if they concern an important constitutional question which exceeds the importance of the actual case (hereinafter “the important constitutional question”). 29.     The Court has previously dealt with the issue of the application of section 55a of the Constitutional Court Act in a case concerning minor offence proceedings (see Bradeško and Rutar Marketing d.o.o. , cited above, §§ 30-40). It observed that the domestic law gave the Constitutional Court wide discretion as regards the consideration of the four categories of cases concerned in section 55a(2). The accessibility and effectiveness of a constitutional complaint in those cases were dependent on whether the interpretation and application of the important constitutional question criterion in practice precluded such complaints from being examined on the merits. With regard to minor offence proceedings, the Court found, on the basis of the legislative provision and the Constitutional Court’s case-law submitted by the Government, that the strict admissibility criteria for lodging constitutional complaints did not entirely prevent the applicants’ complaints under Articles 6 and 7 of the Convention in that case from being examined on the merits and that therefore the applicants should have used that remedy before lodging their application with the Court (ibid.). 30.     Furthermore, the Court notes that the Government in the present case again submitted examples of Constitutional Court case-law (see paragraphs 17-21 above) which show that it has not adopted a blanket approach in declaring inadmissible constitutional complaints against decisions issued in cases falling under the categories set out in section 55a(2), including small claims disputes (see paragraphs 19 and 21 above; by contrast, see Bubnik v.   Slovenia [Committee], no. 72072/12, § 27, 16 October 2014). In particular, the Court observes that the Constitutional Court has interpreted the important constitutional question criterion enshrined in section 55a(3) of the Constitutional Court Act on a case-by-case basis and has had regard to arguments put forward by complainants. 31.     The Court notes further that the applicants, for their part, have not put forward any arguments as to why a constitutional complaint would have been inadequate or ineffective in the circumstances of their case (see Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999 ‑ V). Notably, they did not argue, let alone show, that the issues raised by their case had been previously consistently considered as not being capable of raising an important constitutional question. On the basis of the material before it, the Court therefore finds that a constitutional complaint could not be considered a priori ineffective. It emphasises the importance of the subsidiarity of the Convention system and considers that by not using that remedy the applicants failed to provide the highest court in Slovenia with the opportunity to address, and thereby prevent or put right, the particular Convention violation alleged against it (see, among many other authorities, Gherghina v. Romania (dec.) [GC], no.   42219/07, §§ 83-84, 9 July 2015). 32.     In view of the above, the Court finds that the applicants have failed to exhaust domestic remedies. Their complaint under Article 6 § 1 should thus be declared inadmissible under Article 35 §§ 1 and 4 of the Convention. B. Complaint under Article 13 of the Convention 33.     The applicants complained that they did not have an effective remedy as they had not received adequate compensation for non-pecuniary damage. 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.” 34.     The Court reiterates that Article 13 of the Convention guarantees the availability at a national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable claim” under the Convention and to grant appropriate relief (see Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000 ‑ XI). Given that the applicants’ complaint under Article 6 has been rejected for non-exhaustion of domestic remedies, the complaint under Article 13 should be declared manifestly ill-founded and rejected under Article 35 §§ 3 and 4 of the Convention (see Fakhretdinov and Others v. Russia (dec.), nos.   26716/09 and 2 others, § 37, 23 September 2010).   For these reasons, the Court, by a majority, Declares the application inadmissible.   Done in English and notified in writing on 12 October 2017.   Marialena Tsirli   Ganna Yudkivska   Registrar   President Appendix       Franjo KNEŽEVIĆ is a Croatian national who was born in 1934, lives in Benkovac and is represented by N. Kljajić     Niko BENDRA is a Croatian national who was born in 1954, lives in Tuzla and is represented by N. Kljajić     Mirhad MUJDŽIĆ is a national of Bosnia and Herzegovina who was born in 1962, lives in Baltimore and is represented by N. Kljajić