Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28400/95

by Ljubo MAJARIC

against Slovenia

The European Commission of Human Rights (First Chamber) sitting

in private on 3 December 1997, the following members being present:

Mrs J. LIDDY, President

MM M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 13 December 1994

by Ljubo MAJARIC against Slovenia and registered on 1 September 1995

under file No. 28400/95;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

21 June 1996 and the observations in reply submitted by the

applicant on 28 June 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Slovenian national born in 1952. He lives in

Nova Gorica. The facts of the case, as submitted by the parties, may

be summarised as follows.

A. Particular circumstances of the case

On 6 December 1991 the applicant was charged with sexual assault

on 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.

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 offenses and

danger of their repetition.

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.

On 28 August a number of victims were heard and on 3 September

1992 the First Instance Court again adjourned the applicant's trial due

to the applicant`s illness.

By decision of the First Instance Court dated 17 September 1992,

the applicant was again released.

On 28 September 1992, the trial should have continued but the

applicant excused himself because of illness. The trial was adjourned

sine die.

On 21 July 1992, the prosecutor lodged a demand for investigation

in relation to another sexual assault on a minor, which had been

discovered in the course of the proceedings. An investigation was open

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.

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 under Article 96

paras. 1 and 2 of the Criminal Code.

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.

In the period from 18 February 1997 to 14 July 1997 several

hearings were held before the First Instance Court (Okrozno sodisce)

in Nova Gorica, but there has been no first instance judgment to date.

B. Relevant domestic law

Article 160 of the Constitution of the Republic of Slovenia

provides for the jurisdiction of the Constitutional Court. The

Constitutional Court has jurisdiction, amongst other matters, to

determine complaints of breaches of human rights and fundamental

freedoms by specific acts.

Article 50 of the Constitutional Court Act reads as follows:

"1. Any person may, under the conditions determined by this Act,

lodge a constitutional complaint with the Constitutional Court

if he/she believes that his/her human rights and basic freedoms

have been violated by a specific act of a state body, local

community body or public corporation."

Article 51 of the Constitutional Court Act reads as follows:

"1. A constitutional complaint may be lodged only after all

remedies have been exhausted.

2. Before exhaustion of all extraordinary remedies, the

Constitutional Court may exceptionally decide on a constitutional

complaint if the alleged violation is obvious and if the

complainant would suffer irreparable consequences as a result of

the implementation of the individual act."

Articles 72 and 73 of the Law on Courts provide that, in case of

delay of proceedings, any party may address a "supervisory appeal"

(nadzorstvena pritozba) to the president of the court or to the

Ministry of Justice. The president of the court or the Ministry request

the judge dealing with the case to prepare a report as to the state of

the case and to reply to the allegations of the party. The Ministry may

also refer the application to a higher court, which is requested to

examine the functioning of the court and report to the ministry on the

findings.

COMPLAINTS

The applicant complains under Article 6 para. 1 of the Convention

about the length of his criminal proceedings which are still pending

before the first instance. The applicant claims that there were no

hearings from September 1992 until February 1997.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 13 December 1994 and registered

on 1 September 1995.

On 12 April 1996 the Commission decided to communicate the

applicant's complaint concerning the length of the criminal proceedings

to the respondent Government and to declare the remainder of the

application inadmissible.

The Government's written observations were submitted on 21 June

1996. The Government`s observations were sent to the applicant for his

observations to be submitted by 13 August 1996, and again in

January 1997 and April 1997 with an extension of the time-limit until

31 May 1997. The applicant only replied on 28 June 1997.

THE LAW

The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention about the length of proceedings which began in December 1991

and are still pending before the first instance court.

Article 6 (Art. 6) of the Convention, insofar as relevant,

provides as follows:

"1. In the determination of his civil rights and obligations or

of any criminal charge against him, everyone is entitled to a

fair and public hearing within a reasonable time..."

The Government state that the only remedy the applicant had at

his disposal to accelerate the criminal proceedings was the

"supervisory appeal" in accordance with Article 72 of the Law on

Courts. In the case of "supervisory appeal" the president of the court

or the Ministry do not issue any decision, but merely report to the

party on their findings. The Government noted that the applicant filed

such an appeal several times, last on 27 May 1994.

The Government conclude that, in the case of delay of

proceedings, it is not possible to lodge a constitutional complaint.

The applicant claims that his rights are still being violated,

that there is no rule of law in Slovenia and that he is not allowed to

prove his innocence.

The Commission recalls the Convention organs' case-law, according

to which the decisive question in assessing the effectiveness of a

remedy concerning a complaint about the length of proceedings is

whether an applicant can raise this complaint before domestic courts

by claiming specific redress; in other words, whether a remedy exists

that could answer his complaints by providing a direct and speedy, and

not merely indirect, protection of the rights guaranteed in Article 6

para. 1 (Art. 6-1) of the Convention (cf. Eur. Court HR, the Deweer v.

Belgium judgment of 27 February 1980, Series A no. 35, p. 16, para.

29).

The Commission notes that a "supervisory appeal" brought under

Article 72 of the Law on Courts provides no guarantee that proceedings

will be accelerated and results in no obligation on the court

concerned. The Commission finds that the "supervisory appeal" is not

an effective remedy within the meaning of the Convention. The

Government and the applicant concur that it was also not open to the

applicant to file a constitutional complaint with the Constitutional

Court and that there was therefore no effective remedy in this case.

It follows that the present application cannot be declared inadmissible

under Article 26 (Art. 26) of the convention.

As to the length of the applicant`s criminal proceedings, the

Commission considers, in the light of the criteria established by the

case-law of the Convention organs on the question of "reasonable time",

and having regard to all the information in its possession, that an

examination of the merits of the complaint is required.

For these reasons, the Commission, unanimously,

DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE, without

prejudging the merits of the case.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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MAJARIC v. SLOVENIA

MAJARIC v. SLOVENIA

LEXI