[New search]
[Contents list]
[Printable RTF version]
[Help]
THIRD
SECTION
CASE OF PAVLOVIČ v. SLOVENIA
(Application
no. 37006/02)
JUDGMENT
STRASBOURG
15
November 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Pavlovič v. Slovenia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr C. Bîrsan,
President,
Mr B.M. Zupančič,
Mrs E.
Fura-Sandström,
Mrs A. Gyulumyan,
Mr E. Myjer,
Mr David
Thór Björgvinsson,
Mrs I. Ziemele, judges,
and
Mr S. Quesada, Section Registrar,
Having
deliberated in private on 18 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 37006/02) 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 a Slovenian national, Mrs Dora
Pavlovič
(“the applicant”), on 25 September 2002.
- The
applicant was represented by Mr B. Verstovšek, a lawyer
practising in Celje. The Slovenian Government (“the
Government”) were represented by their Agent, Mr L. Bembič,
State Attorney-General.
- The
applicant alleged under Article 6 § 1 of the Convention that the
length of the proceedings before the domestic courts to which she was
a party was excessive. In substance, she also complained about the
lack of an effective domestic remedy in respect of the excessive
length of the proceedings (Article 13 of the Convention).
- On
9 June 2006 the Court
decided to communicate the complaints concerning the length of the
proceedings and the lack of remedies in that respect to the
Government. Applying Article 29 § 3 of the Convention, it
decided to examine the merits of the application at the same time as
its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1956 and lives in Celje.
- On
2 July 1995 the applicant was injured in a car accident. She had
taken out insurance with the insurance company ZT.
- The
applicant and ZT agreed on the appointment of a medical expert to
assess the extent of the applicant's injuries. The appointed medical
expert established that the applicant had sustained 45 per cent
permanent invalidity as a result of the accident. ZT paid the
applicant damages corresponding to 35 per cent of the invalidity
level.
- On
13 October 1998 the applicant instituted civil proceedings against ZT
in the Celje Local Court (Okrajno sodišče v Celju)
seeking payment of damages corresponding to the unpaid 10 per cent of
the invalidity level in the amount of 677,040 Slovenian tolars
(approximately 2,800 euros).
Between
20 October 1999 and 30 August 2002 the applicant lodged four
preliminary written submissions.
On 20
October 1999 she also made a request that a date be set for a
hearing.
Three
hearings were held between 4 June 2001 and 18 September 2002.
During
the proceedings the court appointed a medical expert. The court also
sought an additional opinion from the appointed expert.
At
the last-mentioned hearing the court decided to deliver a written
judgment. The judgment, upholding the applicant's claim, was served
on the applicant on 30 December 2002.
- On
an unspecified date ZT appealed to the Celje Higher Court (Višje
sodišče v Celju).
On 18
March 2004 the court dismissed ZT's appeal and upheld the
first-instance judgment. The judgment was served on the applicant on
28 April 2004.
II. RELEVANT DOMESTIC LAW
1. The Act on the Protection of the Right to a Trial
without undue Delay
- 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) has been implemented since 1
January 2007. Under its sections 1 and 2, the right to a trial
within a reasonable time is guaranteed for a party to court
proceedings, a participant under the Act governing non-contentious
proceedings and an injured party in criminal proceedings.
- 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 after 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 a period of 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 after the date on which the party filed its proposal, the
party may bring an action before the competent court under this Act.
The party may bring an action within six months after receiving 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. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE
CONVENTION
- The
applicant complained about the excessive length of the proceedings.
She 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...”
- In
substance, the applicant further complained that the remedies
available for excessive length of court 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. Admissibility
- The
Government pleaded non-exhaustion of domestic remedies, in particular
after the implementation of the Act on the Protection of the Right to
a Trial without undue Delay (the “2006 Act”) from 1
January 2007.
- The
applicant contested that argument, claiming that the remedies
available were not effective.
- The
Court notes that section 25 of the 2006 Act explicitly refers to
proceedings before international courts initiated before 1 January
2007 and provides for certain remedies in cases of domestic
proceedings which had terminated. However, the Court found in the
Grzinčič judgment
that the conditions laid down in that section were not fulfilled as
regards applications concerning terminated proceedings which had been
notified to the Slovenian Government before 1 January 2007, such as
the present one (see Grzinčič
v. Slovenia, no. 26867/02, § 67, 3 May 2007).
- The
Court therefore notes that the present application is similar to that
examined in the relevant part of the Grzinčič
judgment (cited above, § 68),
in which the Court dismissed the
Government's objection of non-exhaustion of domestic remedies because
it found that the legal remedies at the applicant's disposal were
ineffective.
- The
Court finds that the Government have not submitted any convincing
arguments which would require the Court to depart from its
established case-law.
- The
Court further notes that the application 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.
B. Merits
1. Article 6 § 1
- The
period to be taken into consideration began on 13 October 1998, the
date on which the applicant instituted proceedings in the Celje Local
Court, and ended on 28 April 2004, the date on which the Celje Higher
Court's judgment was served on the applicant. It therefore lasted
over five years and six months for 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).
- Having
examined all the material submitted to it, and having regard to its
case-law on the subject, the Court considers that in the instant
case, in particular when it was considered by the first-instance
court, the length of the proceedings was excessive and failed to meet
the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
2. Article 13
- 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). It notes that the objections and arguments
put forward by the Government have been rejected in earlier cases
(see Grzinčič, cited above) and sees no reason to
reach a different conclusion in the present case.
- Accordingly, the Court considers that in the present
case there has been a violation of Article 13 on account of the lack
of a remedy under domestic law whereby the applicant could have
obtained a ruling upholding her right to have her case heard within a
reasonable time, as set forth in Article 6 § 1.
II. 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
applicant claimed 24,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government contested the claim.
- The
Court considers that the applicant must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards her EUR 3,600 under
that head.
B. Costs and expenses
- The
applicant also claimed EUR 964 for the costs and expenses incurred
before the Court.
- The
Government argued that the claim was too high.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, regard being had to the information in
its possession and the above criteria, the Court considers it
reasonable to award the full sum claimed.
C. Default interest
- 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
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
13 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,600
(three thousand six hundred euros) in respect of non-pecuniary damage
and EUR 964 (nine hundred and sixty-four euros) in respect of costs
and expenses, plus any tax that may be chargeable;
(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;
5. Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 15 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Corneliu Bîrsan
Registrar President
