FIFTH SECTION

CASE OF KOVINAR D.O.O. v. SLOVENIA

(Application no. 24162/06)

JUDGMENT

STRASBOURG

3 January 2013

This judgment is final but it may be subject to editorial revision.

In the case of Kovinar d.o.o. v. Slovenia,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
	Ann Power-Forde, President,
	Boštjan M. Zupančič,
	Helena Jäderblom, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 4 December 2012,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 24162/06) 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 a Slovenian company, Kovinar d.o.o. (“the applicant company”), on 22 May 2006.
2.  The Slovenian Government (“the Government”) were represented by their Agent.
3.  On 8 July 2010 the application was communicated to the Government. In accordance with Protocol No. 14, the application was assigned to a committee of three Judges.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1949 and lives in Ptuj.
5.  In the beginning of the 1990s the applicant company entered a business relationship with the company JEKLOTEHNA D.D, which was a company owned by the State. In 1996 bankruptcy proceedings were instituted against the latter.
6.  On 16 September 1997 the applicant company instituted proceedings before the Ljubljana District Court against the Republic of Slovenia seeking the payment of the debt owed by JEKLOTEHNA D.D.
7.  On 14 July 1999 the court held a hearing.
8.  On 6 October 1999 the Ljubljana District Court issued a judgment rejecting the applicant company’s request. The applicant company appealed.
9.  On 17 December 2002 the Ljubljana District Court issued a decision stating that the appeal was considered to be withdrawn, since the applicant company failed to pay the court fees for the appeal. The applicant company appealed.
10.  On 9 June 2004 the Ljubljana Higher Court upheld the appeal and annulled the decision. Subsequently, the appeal against the first-instance judgment was allowed.
11.  On 15 June 2005 the Ljubljana Higher Court rejected the applicant company’s appeal. The applicant company lodged an appeal on points of law.
12.  On 2 December 2005 the Ljubljana District Court rejected the appeal on points of law on procedural grounds. The applicant company appealed.
13.  On 11 January 2006 the Ljubljana Higher Court upheld the appeal. Subsequently the appeal on points of law was accepted and sent to the Supreme Court.
14.  On 9 October 2007 the Supreme Court rejected the appeal on points of law.
II.  RELEVANT DOMESTIC LAW
15.  For relevant domestic law see Tomažič v. Slovenia (no. 38350/02,
13 December 2007).
THE LAW
I.  ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION
16.  The applicant company 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...”
17.  In substance, the applicant company further complained that the remedies available for excessive legal 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
18.  The Government pleaded non-exhaustion of domestic remedies. The Government argued that as the applicant company received a settlement proposal made by reference to section 25 of the Act on the Protection of the Right to a Trial without undue Delay (“the 2006 Act”), it had at its disposal domestic remedies under section 25.
19.  The Court observes that the transitional provision of the 2006 Act, namely section 25, provides for the procedure to be followed in respect of applications where the violation of the “reasonable time” requirement has already ceased to exist and which were lodged with the Court before 1 January 2007. Notwithstanding the fact that the settlement proposal was made by reference to section 25, as the proceedings to which the applicant company was a party continued before the Supreme Court after the new legislation became operational, the above provision did not give a remedy to the applicant company’s case.
20. As regards the application of other provisions of the 2006 Act, in particular its section 19, the Court notes that the proceedings in the present case had been finally resolved before the 2006 Act became operational and have subsequently continued before the Supreme Court. Having regard to the 2006 Act as in force at the material time (see by contrast, Žurej v. Slovenia, (dec.), no. 10386/03, 16 March 2010, § 17), the applicant company had no possibility to claim compensation for the delays incurred in the proceedings (see mutatis mutandis, Tomažič v. Slovenia, no. 38350/02, §§ 41-45, 13 December 2007 and Lesjak v. Slovenia (no. 33946/03, §§ 54‑55, 21 July 2009).
21.  The Government’s objection concerning the exhaustion of domestic remedies should therefore be dismissed.
22.  The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
1.  Article 6
23.  The period to be taken into consideration began on 16 September 1997, the date when the applicant company instituted civil proceedings, and ended on 9 October 2007, when the Supreme Court’s decision was issued. The proceedings thus lasted ten years and one month at three levels of jurisdiction.
24.  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).
25.  The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Simončič v. Slovenia, no. 7351/04, §§ 23-26, 18 January 2011; Umek v. Slovenia, no. 35463/02, §§ 41-47, 8 January 2009; and Krajnc v. Slovenia, no. 75616/01, §§ 26-28, 29 June 2006).
26.  Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case 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
27.  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).
28.  In the present case the Court is not persuaded that the applicant company could have had access to the compensation claim and finds the remedies of the 2006 Act ineffective (see paragraphs 18-22 above). As regards the remedies available prior to the implementation of the 2006 Act, the Court sees no reason to take a different approach to that taken in earlier cases in which those remedies were considered ineffective (see Lukenda v. Slovenia, no. 23032/02, 6 October 2005).
29.  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 company could have obtained a ruling upholding its right to have its case heard within a reasonable time, as set forth in Article 6 § 1.
II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
30.  Lastly, the applicant company complained under Articles 6, 8, 13 and 18 of the Convention about the alleged unfairness of the proceedings that allegedly lead to the ruin of the owners of the company causing them great psychical and psychological suffering.
31.  The Court notes that the applicant company did not lodge a constitutional appeal. 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
32.  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
33.  The applicant company claimed 1,188,98.05 euros (EUR) in respect of pecuniary and non-pecuniary damage.
34.  The Government contested this claim.
35.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant company EUR 6,400 in respect of non-pecuniary damage.
B.  Costs and expenses
36.  The applicant company also claimed EUR 5,269 for the costs and expenses incurred before the domestic courts.
37.  The Government did not express an opinion on the matter.
38.  Regard being had to the documents in its possession and to its case-law, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the applicant company, who was not represented by a lawyer, the sum of EUR 500 under this head.
C.  Default interest
39.  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 UNANIMOUSLY
1.  Declares the complaint concerning the excessive length of the proceedings and lack of an effective remedy admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Articles 6 § 1 and 13 of the Convention;

3.  Holds
(a)  that the respondent State is to pay the applicant company, within three months the following amounts:
(i)  EUR 6,400 (six thousand four hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(iii)  EUR 500 (five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(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;

4.  Dismisses the remainder of the applicant company’s claim for just satisfaction.
Done in English, and notified in writing on 3 January 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Ann Power-Forde
	Deputy Registrar	President