In the case of Barišič v. Slovenia,
The European Court of Human Rights (Fifth Section), sitting as
a Chamber composed of:
Dean Spielmann, President,
Mark Villiger,
Karel Jungwiert,
Boštjan M. Zupančič,
Ann Power-Forde,
Angelika Nußberger,
André Potocki, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 18 September 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an
application (no. 32600/05) 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, Mr Bojan Barišič (“the applicant”),
on 9 September 2005.
The applicant was
represented by Odvetniška Družba Čeferin, a law firm from Grosuplje. The
Slovenian Government (“the Government”) were represented by their Agent.
The applicant complained, inter alia, under
Article 6 § 1 of the Convention that the length of the proceedings before the
domestic courts to which he was a party was excessive. In substance, he also
complained that there was no effective domestic remedy in respect of the
excessive length of the proceedings (Article 13 of the Convention).
On 7 May 2009 the application
was communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Background
The applicant was born in 1950 and lives in Sežana.
The applicant, a retired captain, worked for
International Shipping and Chartering Ltd. (Splošna plovba p.o.), a
State-owned company, from 1971 until 1974 and from 1981 until 12 September
1992. On 13 September 1992 the applicant concluded a temporary contract of
work, renewed several times until 11 February 1999, with the Genshipping
Corporation, Monrovia, Liberia, one of the parent companies of International
Shipping and Chartering Ltd. In 2000 the applicant retired due
to his disability and back pain.
B. First set of proceedings (Pd
364/2003)
On 13 August 2001 the applicant instituted
proceedings before the Koper Labour Court against International Shipping and
Chartering Ltd. and the Genshipping Corporation, seeking recognition of his
permanent work status since 12 September 1992, his reinstatement and a
pecuniary award, inter alia, for the loss of wages.
After two hearings, on 9 December 2002 the Koper
Labour Court dismissed the applicant’s claim. Both parties appealed.
On 27 November 2003 the Higher Labour and Social
Court upheld both appeals in part and remitted the case for re-examination. The
applicant lodged an appeal on points of law against the rejected part of the
appeal.
On 1 February 2005 the Supreme Court dismissed
the applicant’s appeal on points of law. He lodged a constitutional complaint.
In the framework of the remitted proceedings, on
9 September 2005 the Koper Labour Court dismissed the applicant’s claim. He
lodged an appeal.
On 31 August 2006 the second-instance court
upheld the applicant’s appeal in part and amended the first-instance decision.
He lodged an appeal on points of law.
On 9 January 2007 the Supreme Court rendered a
decision rejecting the applicant’s appeal. He lodged a constitutional
complaint.
On 27 March 2007 the Constitutional Court
dismissed the applicant’s constitutional complaint (see paragraph 10 above).
On 4 December 2007 the Constitutional Court
dismissed the second constitutional complaint (see paragraph 13 above).
C. Second set of proceedings (Pd 126/2003)
On 14 April 2003 the applicant instituted
proceedings against the Genshipping Corporation and against International
Shipping and Chartering Ltd., seeking a declaration of employment since 2003,
social cover and payment of salaries due since 2002. He also requested an
interlocutory injunction.
On 22 April 2003 the Koper Labour Court
dismissed the applicant’s request for an interlocutory injunction concerning
the termination of his contract and social cover. He lodged an appeal against
this decision which was rejected on 15 May 2003.
After three hearings, on 26 October 2005 the
Koper Labour Court dismissed his claim. He lodged an appeal.
On 11 January 2007 the second-instance court
rejected his appeal. He lodged an appeal on points of law.
On 8 November 2008 the Supreme Court rejected
the appeal. He lodged a constitutional complaint on 9 February 2009 and the
proceedings appear to be still pending.
D. Third set of proceedings (Ps 495/2001)
On 8 May 2001 the applicant instituted
proceedings before the Ljubljana Labour and Social Court against a decision of
the Pension and Invalidity Insurance Fund.
Between 14 July 2003 and 13 July 2006 six
hearings were held and two experts appointed.
At the last hearing the first-instance court
delivered a judgment upholding the applicant’s claim in part. The defendant
appealed.
On 6 March 2007 the Higher Labour and Social
Court upheld the applicant’s appeal in part and amended the first-instance
judgment.
E. Fourth set of proceedings (Ps 1417/2001)
On 25 October 2001 the applicant instituted
proceedings before the Ljubljana Labour and Social Court challenging a decision
of the Medical Insurance Fund issued on 20 September 2001.
On 30 October 2001 the applicant amended his claim
by also challenging a decision of the Medical Insurance Fund issued on
24 September 2001.
On 8 November 2005 the first-instance court decided
that the proceedings should be separated (reference number of the new set of
proceedings Ps 2973/2005).
On 8 March 2007 the first-instance judgment was
rendered and his request was upheld in part. The applicant appealed.
On 18 November 2007 the Ljubljana Higher Labour
and Social Court upheld his appeal in part and modified the first-instance
judgment.
F. Fifth set of proceedings (Ps 2973/2005)
Following the decision of 8 November 2005 (see
paragraph 27 above) the Ljubljana Labour and Social Court issued a judgment on 7 May 2008. The applicant’s
request was upheld in part and the remainder remitted for re-examination before
the Medical Insurance Fund. The defending party appealed.
On 27 May 2009 the Ljubljana Higher Labour and Social Court upheld the appeal and remitted the case for re-examination before the first-instance.
The proceedings appear to be still pending.
G. Sixth set of proceedings
On 24 December 2004 the applicant instituted proceedings
before the Ljubljana Labour and Social Court challenging a decision concerning
his unemployment benefits and payment of social security.
On 8 May 2005 the latter rendered a judgment,
dismissing the applicant’s request. This decision was served on the applicant
on 7 June 2006. He did not
appeal.
H. Seventh set of proceedings
On 4 April 2006 the applicant started
proceedings against the Pension and Invalidity Insurance Fund challenging a
decision on payment of his salaries.
On 12 May 2006 the Labour and Social Court
rejected the applicant’s claim. This decision was served on the applicant on 20
June 2006. He did not appeal.
II. RELEVANT DOMESTIC LAW
For relevant domestic law see Nezirović
v. Slovenia ((dec.) no. 16400/06, 25 November 2008).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1
AND 13 OF THE CONVENTION
The applicant complained that the proceedings to
which he was a party had been excessively long. He 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 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. Admissibility
1. First, second, fourth, fifth, sixth and seventh set
of proceedings
As to the first set of proceedings the Court
notes that the period to be taken into consideration started on 13 August 2001 and
ended on 4 December 2007 (see paragraphs 7-15 above). It therefore lasted for
six years and four months at four levels of jurisdiction, which cannot be
considered as excessive (see Gavranič v. Slovenia, no. 33573/02, 23 November
2006).
As to the second set of proceedings the Court
notes that the period to be taken into consideration started on 14 April 2003. In
2009, when the application was communicated to the Government, the proceedings
were pending before the Constitutional Court (see paragraphs 16-20). The Court
finds that seven years at four levels of jurisdiction can still be considered
as reasonable (ibid.).
As to the sixth and seventh set of proceedings
the Court notes that the proceedings lasted for less than two years at one
level of jurisdiction in both cases (see paragraphs 32-35 above). Noting that
no excessive delay incurred in the proceedings, the Court considers that their
length was not unreasonable.
The Court considers that complaints concerning
the length of the above mentioned sets of the proceedings is manifestly
ill-founded and must be declared inadmissible in accordance with Article 35 §§
3 and 4 of the Convention. As to the complaint under Article 13 the Court finds
that the applicant did not have an arguable claim that his right to an
effective remedy within the meaning of Article 13 was violated. Accordingly,
this complaint is manifestly ill-founded and must be declared inadmissible in
the meaning of Article 35 §§ 3 and 4 of the Convention.
As to the fourth and fifth set of proceedings (see
paragraphs 25-31 above) the Court notes that the applicant failed to exhaust
the available domestic remedies under the Act on the Protection of the Right to
a Trial without undue Delay (“the 2006 Act”). Following the Court’s findings in
the cases Grzinčič v. Slovenia (no. 26867/02, § 110, 3 May
2007) and Nezirovič v. Slovenia (no. 16400/06, (dec.), 18 November 2008
§§ 27-42) the complaints under Articles 6 and 13 must be declared inadmissible in
accordance with Article 35 §§ 1 and Article 35 §§ 3 and 4 of the Convention,
respectively.
2. Third set of proceedings
The Court notes that these complaints are not
manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
Nor they are inadmissible on any other grounds (see Maksimovič
v. Slovenia, no. 28662/05, 22 June 2010, §§ 21-23). They must
therefore be declared admissible.
B. Merits
1. Article 6
As to the third set of proceedings the period to
be taken in consideration started on 8 May 2001 and ended on 6 March 2007 (see
paragraphs 21-24 above). It therefore lasted for five years and ten months at
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 regard the circumstances of the case and the
Court’s case-law
on the subject (see for example Bastič v. Slovenia, no. 75809/01,
6 April 2006, §§ 16-18), the Court considers that the length of these
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).
In view of its findings in the case Maksimovič
v. Slovenia (see paragraph 44 above, §§ 29-30), the Court finds that in the
present set of proceedings 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 his right to have his case heard within a
reasonable time, as set forth in Article 6 § 1.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant complained under Article 6 of the
Convention that the courts wrongly established the elements of facts and that
adequate judicial protection was not afforded to him. He further complained
that as a consequence his rights under Article 1 of Protocol No. 1 have been
breached since his pension rights had been diminished.
As to the first set of labour proceedings the
Court finds that, having examined the above complaints in the light of all the
materials in its possession, and in so far as the matters complained of are
within its competence, they do not disclose any appearance of a violation of
the Articles relied on by the applicants. It follows that this part of the
application is manifestly ill-founded and must be rejected in accordance with
Article 35 §§ 3 (a) and 4 of the Convention.
As to the complaints concerning the remaining
sets of proceedings the Court notes that the applicant either did not lodge
constitutional complaints or the Constitutional Court has not yet decided on
the complaint. This part of the application must therefore be declared
inadmissible for non-exhaustion of domestic remedies and rejected in accordance
with Article 35 §§ 1 and 4 of the Convention.
III. 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 16,000 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
award him EUR 4,000 under that head.
B. Costs and expenses
The applicant also claimed EUR 6,000 for the
costs and expenses incurred before the domestic courts.
The Court
notes that although the applicant was reminded by the Court of the requirements
concerning just satisfaction claims set out in Rule 60 of the Rules of the
Court, he had not itemised or substantiated his claims (see S.I. v. Slovenia,
no. 45082/05, 13 October 2011, § 87). The Court therefore makes no award under
this head.
C. Default interest
The Court considers it appropriate that the
default interest rate 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
1. Declares unanimously the complaint
concerning the excessive length of the second set of labour proceedings and the
effective remedy admissible and the remainder of the application inadmissible;
2. Holds by six votes to one that there has
been a violation of Article 6 § 1 of the Convention;
3. Holds by six
votes to one
(a) that the
respondent State is to pay within three months EUR 4,000 (four 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;
4. Dismisses unanimously the remainder of the
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 18 October 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean
Spielmann Registrar President
In accordance with Article 45 § 2 of the Convention and
Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Power-Forde is
annexed to this judgment.
D.S.
C.W.
DISSENTING OPINION OF JUDGE POWER-FORDE
I disagree with the majority’s finding of a violation of the
applicant’s right to a trial within ‘reasonable time’. Although, increasingly,
it has been the practice of this Court to find violations of Article 6 § 1 in
cases involving length of proceedings that are similar to the instant one, it
is a practice which I can neither condone nor endorse (see Gheorghe and
Maria Mihaela Dumitrescu v. Romania, no. 6373, 29 July 2008;
Gouttard v. France, no. 57435/08, 30 June 2011;
Yuryeva and Yuryev v. Ukraine, no. 3431/03, 31 July
2012). That is not to say that I accept that delays are endemic
in every legal system and have to be tolerated. I do not. To my mind, however,
a stricter application of the principles already developed in the Court’s case
law is required.
The Court’s earlier approach to such ‘unreasonable time’
claims was to conduct a careful and more rigorous analysis of what, precisely,
had taken place as the litigation progressed through the domestic courts in
order to see whether the responsibility lay with the respondent state for a
violation of a ‘fundamental’ Convention right. This approach can be found in
cases, such as, Buchholz v. Germany, 6 May 1981, Series A no. 42;
Malicka-Wasowska v. Poland (dec.), no. 41413/98, 5 April 2001; and Potas
v. Poland (dec.), no. 42615/98, 1 October 2002. On several occasions, after
such analysis, complaints have been declared inadmissible notwithstanding that
the duration involved was similar to or, at times, far greater than, the one at
issue in the present case.
Latterly, there has been a growing tendency to take a ‘broad
brush’ approach to ‘length of proceedings’ claims-to look at the overall period
of proceedings and, with very little analysis of what, in fact, transpired at
national level, to conclude that a given period was ‘unreasonable’. Such an
approach has been adopted in the instant case. One may argue that time and
resources prevent this Court from conducting a closer scrutiny of every claim
and that a summary approach to ‘length of proceedings’ claims is, therefore,
justified. I disagree and am unable to accept this approach for several
reasons.
Firstly, to find that a State has breached an international
treaty is a serious matter. Every case stands alone and a prior and detailed
examination of all the relevant events that occurred during the course of the
litigation is an essential element in any judgment that censures a State for
violating an individual’s fundamental human right. The case law reiterates that
the reasonableness of the length of proceedings must be assessed “in the light
of the circumstances of the case”. To my mind, the actual circumstances of a
case which takes several years to litigate at national level, cannot, quite
frankly, be analysed or appreciated in a few short lines. Absent an actual
examination of what transpired during the relevant years, I cannot conclude
that the respondent State has violated Article 6 §1 of the Convention.
Secondly, delays or adjournments are not necessarily, in
themselves, indicative of a system’s failure. In assessing the reasonableness
of the overall length of proceedings, the cause of each delay must be
ascertained before laying responsibility therefore at the door of a respondent
State. A witness may be unavailable, another may fail to appear; additional
expert evidence might be required; preliminary or interlocutory motions may
have to be heard; appeals may have to be lodged and remittal orders may be
required; a judge may be unavailable because an earlier case exceeded its
estimated time. All of these realities must be factored in to this Court’s
assessment and only where there is an obvious tolerance of unreasonable delays
on the part of the State should a violation be found. It also has to be
remembered that sometimes it suits a party to litigation to simply ‘drag his
heels’ or to ‘let matters lie’. I accept that a State is responsible for
organising an effective and efficient judicial system. However, I also take the
view that individuals are responsible for themselves and must bear the consequences
of their own freely chosen action or inaction.
Thirdly, while the factors to which reference should be made
when assessing the reasonableness of the length of proceedings are clear (see
Frydlender v. France [GC], no. 30979/96, ECHR 2000-VII) a far
stricter analysis of each factor should be conducted before a violation is
found. The complexity of the matter, the conduct of the relevant parties and
the importance for the applicant of the issue at stake should be weighed in the
balance and considered, carefully. As an international body, this Court should
be cautious in declaring that a case heard at national level was not complex.
Such a matter is often difficult to assess when far removed from the ‘cut and
thrust’ of litigation. The conduct of the parties should be scrutinized,
strictly, and, to my mind, an applicant should, generally, have made at least
some effort to advance the proceedings at national level. When it comes to what
was ‘at stake’, the facts, to my mind, should disclose that the delay was such
as to bring the matter ‘within the zone’ of procedural injustice from the
applicant’s perspective. The administration of justice is, at the end of the
day, what courts are all about.
Applicants are entitled to have a trial within reasonable
time, not within perfect time. Absent a detailed consideration of what, in
fact, transpired at national level and in the light of such facts as can be
ascertained from the judgment, I cannot agree that there has been any violation
of the Convention.
