EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 28400/95

Ljubo Majarič

against

Slovenia

REPORT OF THE COMMISSION

(adopted on 21 October 1998)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-5) 1

II. ESTABLISHMENT OF THE FACTS

(para. 6-18) 2

III. OPINION OF THE COMMISSION

(paras. 19-29)              3

A. Complaint declared admissible

(para. 19) 3

B. Point at issue

(para. 20) 3

C. As regards Article 6 para. 1 of the Convention

(paras. 21-28)              3

CONCLUSION

(para. 29) 4

APPENDIX I: PARTIAL DECISION OF THE COMMISSION

AS TO THE ADMISSIBILITY OF THE APPLICATION 5

APPENDIX II: FINAL DECISION OF THE COMMISSION

AS TO THE ADMISSIBILITY OF THE APPLICATION 9

I. INTRODUCTION

1. The present Report concerns Application No. 28400/95 introduced on 13 December 1994 against Slovenia and registered on 1 September 1995.

The applicant is a Slovenian citizen, born in 1952 and resident in Slovenia.

The applicant is represented before the Commission by E. Dokič , a lawyer practising in Piran , Slovenia.

The respondent Government are represented by the Ministry for Foreign Affairs.

2. The application was communicated to the Government on 18 April 1996.  Following an exchange of written observations, the complaint relating to the length of proceedings (Article 6 para. 1 of the Convention) was declared admissible on 3 December 1997.  The decision on admissibility is appended to this Report.

3. Having noted that there is no basis upon which a friendly settlement within the meaning of Article 28 para. 1 (b) of the Convention can be secured, the Commission (First Chamber), after deliberating, adopted this Report on 21 October 1998 in accordance with Article 31 para. 1 of the Convention, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

I. BÉKÉS

G. RESS

A. PERENIČ

C. BÃŽRSAN

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

4. In this Report the Commission states its opinion as to whether the facts found disclose a violation of the Convention by Slovenia.

5. The text of the Report is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

II. ESTABLISHMENT OF THE FACTS

6. In his application, in which he relies on Article 6 para. 1 of the Convention, the applicant complains of the length of the proceedings before the First Instance Court ( Okrožno sodišče ) in Nova Gorica .

7. On 6 December 1991 the applicant was charged with sexual assault of a minor and abduction of minors under Article 103 para. 1 in conjunction with Article 96 paras. 2 and 3 of the Criminal Code. He was detained on remand.

8. On 30 April 1992 the applicant was released from detention on remand, but was re-detained on 16 June 1992 pursuant to the First Instance Court`s decision in view of the nature of the offences and the danger of a repetition.

9. In the meantime, on 5 June 1992, the applicant's trial opened before the Nova Gorica First Instance Court, but was adjourned the same day.

10. On 28 August 1992 a number of witnesses were heard and on 3 September 1992 the First Instance Court again adjourned the applicant's trial due to the applicant`s illness.

11. By decision of the First Instance Court dated 17 September 1992, the applicant was again released.

12. On 28 September 1992, the trial should have continued but the applicant excused himself because of illness. The trial was adjourned sine die.

13. On 21 July 1992, the prosecutor lodged a demand for investigation in relation to another sexual assault of a minor, which had been discovered in the course of the proceedings. An investigation was opened and an indictment was brought against the applicant on 18 January 1993. The applicant entered a plea against the indictment which was rejected on 15 February 1993. On 17 March 1993, the court decided to join the two proceedings.

14. On 2 June 1993 the prosecutor requested further investigation on the ground that there was reasonable suspicion that the applicant had also criminally neglected and maltreated a minor contrary to Article 96 paras. 1 and 2 of the Criminal Code.

15. On 21 October 1993 a preliminary charge was filed for these acts and on 28 March 1995 the court again decided to join these proceedings.

16. In the period from 18 February 1997 to 14 July 1997 several hearings were held before the First Instance Court ( Okrožno sodišče ) in Nova Gorica .

17. On 9 July 1997 the applicant was convicted by the First Instance Court and sentenced to 3 years imprisonment. The applicant`s appeal was rejected by the Higher Court ( Višje sodišče ) in Koper on 12 February 1998. The applicant lodged an extraordinary appeal to the Supreme Court ( Vrhovno sodišče ) and a constitutional complaint to the Constitutional Court ( Ustavno sodišče ) which are still pending.

18. Since 3 June 1998 the applicant is serving his sentence in prison.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

19. The Commission has declared admissible the applicant's complaint that his case has not been heard within a reasonable time.

B. Point at issue

20. The only point at issue is whether the length of the proceedings complained of exceeded the "reasonable time" requirement referred to in Article 6 para. 1 of the Convention.

C. As regards Article 6 para. 1 of the Convention

21. The relevant part of Article 6 para. 1 of the Convention provides as follows :

"In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ..."

22. The proceedings in question concern the criminal charges brought against the applicant and they accordingly fall within the scope of Article 6 para. 1 of the Convention.

23. These proceedings, which began on 6 December 1991 and are still pending had already lasted six years on 3 December 1997 when the complaint was declared admissible. The Commission first notes that the relevant period did not begin with the institution of the proceedings in December 1991, but only as from 28 June 1994, when Slovenia ratified the Convention and recognized the right of individual petition. However, in assessing the reasonableness of time that elapsed after 28 June 1994 (three and a half years), account must be taken of the then state of proceedings (Eur. Court HR, Baggetta v. Italy judgment of 25 June 1987, Series A. no. 119, p. 32, para. 20).

24. The Commission recalls that the reasonableness of the length of the proceedings must be assessed in the light of the particular circumstances of the case and with the help of the following criteria: the complexity of the case, the conduct of the parties and the conduct of the authorities dealing with the case (see Eur. Court HR, Kemmache v. France judgment of 27 November 1991, Series A no. 218, p. 27, para. 60).

25. According to the respondent Government, the length of the period in question is due to the complexity of the case.

26. The Commission notes the existence of a period between 28 September 1992 and 18 February 1997 when some procedural decisions were taken but no hearings on the merits were held. Despite the fact that the case appears to be of some complexity, the Commission considers that no convincing explanation for this delay has been advanced by the respondent Government.

27. The Commission reaffirms that it is for the Contracting States to organise their legal systems in a way that enables them to comply with the requirements of Article 6 para. 1, including that of trial within a reasonable time (cf. Eur. Court HR, Baggetta v. Italy judgment of 25 June 1987, Series A no. 119-B, p. 32, para. 23).

28. In the light of the criteria established by case-law and having regard to the circumstances of the present case, the Commission considers that the length of the proceedings was excessive and failed to meet the "reasonable time" requirement.

CONCLUSION

29. The Commission concludes, unanimously, that there has been a violation of Article 6 para. 1 of the Convention.

M.F. BUQUICCHIO    M.P. PELLONPÄÄ

       Secretary           President

         to the First Chamber               of the First Chamber