THIRD SECTION

DECISION

Application no. 26566/03 by Franc KOREN against Slovenia

The European Court of Human Rights (Third Section), sitting on 16 December 2008 as a Chamber composed of:

Josep Casadevall , President, Elisabet Fura-Sandström , Boštjan M. Zupančič , Alvina Gyulumyan , Ineta Ziemele , Luis López Guerra , Ann Power , judges, and Santiago Quesada, Se tion Registrar ,

Having regard to the above application lodged on 11 August 2003,

Having regard to the Government ' s submissions and their request to strike the case out of its list of cases,

Having regard to the applicant ' s response to the Government ' s submissions and his further comments ,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Franc Koren, is a Slovenian national who was born in 1933 and lives in Ptuj. Since 20 April 2007, h e was represented before the Court by Mr S. Klemenčič, a lawyer practising in Ptuj. The respondent Government (“the Government”) were represented by their Agent, Mr Lucijan Bembič, State Attorney-General.

A. The circumstances of the case

2 . The facts of the case, as submitted by the parties, may be summarised as follows.

1. Main proceedings

3 . The case concerns related sets of proceedings in which the applicant and his former partner, A.Ž., were involved. The first and second sets of proceedings had been twice joined and disjoined by October 1995. After the parties ' claims had been partly decided, the remaining issues were again joined in September 2004 (see paragraphs 15-18 below).

(a) First set of proceedings (P 724/92)

4 . On 3 November 1992 the applicant ' s former partner, A. Ž., lodged a claim against the applicant in the Maribor Basic Court ( Temeljno sodišče v Mariboru ) seeking, inter alia , reimbursement of money she had given him and compensation for the financial losses she had suffered due to their break-up. In the course of the proceedings, she also asked the court to reserve her ownership of the part of the real estate which the applicant was claiming in the second set of proceedings until the applicant had paid the money sought in the claim.

5 . Further to reorganisation of the judiciary the case was allocated to the Ptuj Local Court ( Okrajno sodišče na Ptuju).

Hearings were held on 26 November 1999, 21 December 1999 and 7 April 2000.

On 7 April 2000 the court adopted a judgment in which it partly upheld A. Ž. ' s claim.

6 . On 17 January 2001 the court supplemented the judgment and on the same date the applicant lodged an appeal.

7 . On 5 March 2002 the Maribor Higher Court upheld the first-instance court ' s judgment in part and remitted the remaining part concerning A. Ž. ' s request to reserve her ownership on the relevant part of the real estate to the first-instance court for re-examination.

Subsequently, the applicant lodged an appeal on points of law.

8 . On 17 April 2003 the Supreme Court rejected the applicant ' s appeal as inadmissible since the amount claimed did not exceed the prescribed threshold.

9 . Following the remittal, the proceedings were conducted under number P 128/2002.

(b) Second set of proceedings (P 706/92)

10 . On 18 November 1992 the applicant instituted proceedings seeking annulment of the contract by which he had donated to A.Ž. a part of his real estate.

11 . On 7 December 1995 the Ptuj Local Court held a hearing and upheld his claim. A.Ž. was ordered to submit the relevant land certificate for the transfer of the property in question.

12 . On 4 October 1996 the Maribor Higher Court upheld the first-instance court ' s judgment.

13 . On 4 June 1998, further to an appeal on points of law lodged by A. Ž., the Supreme Court remitted the case to the first-instance court as far as it concerned A. Ž. ' s obligation to submit the land certificate. This decision took into account A. Ž. ' s request to reserve her ownership of the relevant part of the real estate until the applicant had paid her claim pursued in the first set of proceedings.

14 . Following the remittal of the case, the proceedings were conducted under number P 282/98.

(c) Joined proceedings (P 282/98)

15 . On 23 September 2004 the Ptuj Local Court joined the issues pending in the first and second sets of proceedings (the proceedings conducted under numbers P 128/2002 and P 282/98 , see paragraphs 9 and 14 above ), namely , the request to reserve A. Ž. ' s ownership of the part of the real estate in question and the applicant ' s claim for the land registry documentation to be issued .

16 . On 26 October 2004 the Ptuj Local Court held a hearing and adopted a judgment in which it found that A. Ž. should have retained ownership of that part of the real estate until the applicant had fulfilled his obligation arising from the final part of the judgment adopted in the first set of proceedings. In addition, it rejected the applicant ' s request for the land certificate to be issued so that he could be registered as an owner of the relevant part of the real estate in question.

17 . On 24 May 2005, further to an appeal by the applicant, the Maribor Higher Court amended the first-instance court ' s judgment, ruling that A. Ž. should submit the land certificate on payment by the applicant of the monetary claim which had been upheld in the first set of proceedings.

18 . It appears from the State Attorney ' s Office ' s letter of 27 August 2007 that an appeal on points of law was lodged and was decided by the Supreme Court on 7 December 2006.

(d) Constitutional appeals

19 . It appears from the case file that the applicant lodged two constitutional appeals in respect of proceedings which possibly related to the execution of the above-mentioned decisions. Both were dismissed for being lodged out of time , the second one on 11 May 2004.

2. The proceedings under the 2006 Act

20 . On 24 May 2007 t he respondent Government were given notice of the present application.

21 . On 27 August 2007 the State Attorney ' s Office sent a settlement proposal to the applicant under section 25 of the Act on the Protection of the Right to a Trial without undue Delay (“the 2006 Act”) . In its proposal, the State Attorney ' s Office acknowledged a violation of the right to a trial within a reasonable time and, taking into account the fact that the applicant had not stated a claim as to the amount of just satisfaction sought in his application to the Court, offered him a written statement in accordance with section 17 of the 2006 Act (see paragraph 30 below).

22 . The applicant was requested to reply or make a counter-proposal. He was also informed that should a settlement not be reached with the State Attorney ' s Office, he would have the opportunity to lodge a compensation cla i m in accordance with section 25 ( 2 ) of the 2006 Act.

23 . On 4 September 2007 the applicant replied. It appears that he requested the State Attorney ' s Office to stay the execution of the judgment in the main proceedings.

24 . On 10 September 2007 the State Attorney ' s Office sent a further letter to the applicant, explaining that its proposal related only to his complaint concerning the length of the proceedings and did not and could not concern the outcome of the main proceedings. On 24 October 2007 a draft of a settlement agreement was prepared by the State Attorney ' s Office. It was sent to the applicant for signature.

25 . On 3 December 2007 and 14 February 2008 the applicant ' s representative informed the Court that no settlement had been reached between the parties.

26 . However, on 1 July 2008 the applicant sent a letter to the State Attorney ' s O ffice, informing them of his willingness to settle the case if, inter alia , the clause indicating that he should not pursue any further claims against the State in this case was deleted from the text of the agreement.

27 . On 16 July 2008 the State Attorney ' s Office sent the applicant a settlement agreement amended in accordan ce with that request . A copy of the agreement signed by the applicant was received by the State Attorney ' s Office on 22 July 2008. The agreement includes a statement acknowledging a violation of the right to a trial within a reasonable time . It states that undue delays had occurred in the first set of proceedings between 1995 and 1999 and consequently in the second set of proceedings, between 1999 and 2004. The agreement also notes that the undue delays in the proceedings amounted to more than four years. Finally, the agreement includes the following statement:

“By the signing of this agreement, Mr Koren accepts the written statement of the State Attorney ' s Office, stated above, as full compensation for the non-pecuniary damage suffered due to a violation of the right to a trial within a reasonable time in the proceedings mentioned in the first sub-paragraph above.”

B. Relevant domestic law

28 . The Slovenian Government adopted on 12 December 2005 a Joint State Project on the Elimination of Court Backlogs, the “Lukenda Project”. Its goal is the elimination of backlogs in Slovenian courts and prosecutor ' s offices by the end of 2010, by providing for structural and managerial reform of the judiciary. As a part of the “Lukenda Proje ct” the Parliament adopted the 2006 Act ( Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja , Official Journal, No. 49/2006) which has been implemented since 1 January 2007.

29 . Section 25 of the 2006 Act lays down the following transitional rules in relation to the applications already pending before the Court:

Section 25 - Just satisfaction for damage sustained prior to implementation of this Act

“(1) In cases where an infringement of the right to a trial without undue delay has already ceased and the party has 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 of 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 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 of 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 of 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.”

30 . The relevant provisions concerning just satisfaction provide as follows:

Section 15 - Just satisfaction

“....

(2) Just satisfaction shall be provided by:

i . payment of monetary compensation for damage caused by an infringement of the right to a trial without undue delay;

ii . a written statement from the State Attorney ' s Office that the party ' s right to a trial without undue delay has been infringed;

iii . the publication of a judgment that the party ' s right to a trial without undue delay has been infringed.”

Section 16 - Monetary compensation

“(1) Monetary compensation shall be payable for non-pecuniary damage caused by a n infringement of the right to a trial without undue delay. S trict liability for any damage caused shall lie with the Republic of Slovenia .

(2) Monetary compensation for individual finally decided case s shall be granted in amounts from 300 to 5,000 euros.”

Section 17 – Written statement

“ (1) Given the circumstances o f the case, the State Attorney ' s Office may, by agreement with the party under Article 19 of this Act and taking account of criteria referred to in Article 18, paragraph 1 of this Act, make a written statement without monetary compensation to the party as a compensation for non-pecuniary damage caused by the violation of the right to a trial without undue delay. If the right to a trial without undue delay has been seriously violated and at the request of the party, the State Attorney ' s Office may in addition to the monetary compensation also make a written statement.

(2) The written statement shall include data referred to in the Article 5, paragraph 2, subparagraphs 1, 2, 3 and 4 of this Act, an indication that a violation of the right to a trial without undue delay has occurred and the length of the undue delay.

(3) A written statement shall be made by the State Attorney ' s Office within the concluded settlement referred to in Article 19 of the present Act. At the party ' s request, the written statement shall be published on the website of the State Attorney ' s Office which shall cover the costs thereof. The written statement shall be made public for two months and thereupon archived within the website or deleted within fifteen days of receipt of a request from the party or the majority of parties concerning the written statement. ”

COMPLAINTS

31 . The applicant complained under Article 6 § 1 of the Convention of the excessive length of the civil proceedings to which he was a party. In substance, he also complained under Article 13 of the Convention that he did not have an effective domestic remedy in this regard.

32 . W ithout relying on any particular Articles of the Convention , the applicant complained that the domestic courts ' decisions were erroneous and unsubstantiated, that the proceedings had been unfair and that, as a result, his economic situation had substantially worsened.

THE LAW

1. Complaint about the length of the proceedings

33 . On 24 May 2007 t he respondent Government were given notice of the application. In addition they were requested, under Rule 54 § 2 (a) of the Rules of Court, to confirm whether section 25 of the 2006 Act would be applied in this case. In the event of an affirmative answer they were requested to submit a copy of the settlement proposal made to the applicant under the above-mentioned provision.

34 . In reply, the Government informed the Court that section 25 of the 2006 Act had been applied to the present application and sent copies of settlement proposals made to the applicant (see paragraphs 21-27 above) . Since the applicant eventually signed the settlement agreement, the Government proposed that the case be struck out of the list of cases in accordance with Article 37 § 1 (a) and (b) of the Convention.

35 . O n 14 August 2008 the applicant ' s representative informed the Court that he had not been aware that the applicant had signed the settlement agreement and that the applicant could not be said to have understood the terms of the agreement. T he Government explained in reply that the applicant had always communicated with the State Attorney ' s Office directly and n ot through a representative.

36 . The Court notes first of all that there is no indication that the applicant did not have legal capacity to enter an agreement with the State Attorney ' s Office. It has also not been shown that there was any obstacle for the applicant to consult his lawyer in this respect. The fact that he had chosen to sign the agreement of 16 July 2008 (see paragraph 27 above) without consulting his lawyer therefore does not undermine the significance of the fact that a settlement has been reached between the parties. The Court must now determine whether this fact is such as to lead it to d e cide to strike the application out of its list of cases i n application of A rticle 37 § 1 of the Convention, which provides :

“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a) the applicant does not intend to pursue his application; or

(b) the matter has been resolved; or

(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

37 . As regards sub-paragraph (a) of A rticle 37 § 1 , the Court notes that, further to the applicant ' s explicit request, the clause indicating that he should not pursue any further claims against the State in this case had been omitted from the text of the agreement which he signed (see paragraphs 26 and 27 above). This implies that he did not intend to withdraw this part of his application before the Court. That is sufficient to conclude that sub-paragraph (a) of Article 37 § 1 is no t applicable to it but does not, however, rule out the possibility of applying sub-paragraphs (b) and (c), the applicant ' s consent not being a prerequisite for their application (see Ohlen v. Denmark (striking out), no. 63214/00, § 25 , 24 February 2005 ).

38 . In this connection the Court reiterates that i n order to conclude that the matter has been resolved within the meaning of Article 37 § 1 (b) and that there is therefore no longer any objective justification for the applicant to pursue his application, it must examine, firstly, whether the circumstances complained of directly by the applicant still obtain and, secondly, whether the effects of a possible violation of the Convention on account of those circumstances have also been redressed (see Pisano v. Italy [GC] (striking out), no. 36732/97, § 42, 24 October 2002). Further, i n order to decide whether the application should be struck out of the list in application of A rticle 37 § 1 ( c), the Court must consider whether “the circumstances lead it to conclude” that “for any other reason ... it is no longer justified to continue the examination of [it]” . In this respect the Court enjoys a wide discretion in identifying grounds capable of being relied upon in striking out an application on this basis, it being understood, however, that such grounds must reside in the particular circumstances of each case (see Association SOS Attentats and de Boery v. France [GC], (dec.), no. 76642/01, § 37 , ECHR 2006 ‑ ..., and the case-law cited therein).

39 . As regards the present case, the Court observes that the agreement of 16 July 2008 concerned the same matter as the one put before the Court. It was reached in the context of the domestic proceedings provided for in the transitional provision of the 2006 Act, which purpose was to provide a remedy for the complaints pending before the Court, which concerned excessive length of proceedings that had terminated before the implementation of the Act.

40 . The Court further notes that the Government acknowledged the violation of the applicant ' s right to a trial within a reasonable time and agreed to issue a written statement to that effect. The applicant accepted that statement as a full compensation for non-pecuniary damage suffered as a result of the excessive length of proceedings (see paragraph 27 above). Had the applicant refused to settle the case, he would have a possibility to sought monetary compensation for non-pecuniary damage by bringing a civil claim, namely a “claim for just satisfaction”, before the competent court as provided by the 2006 Act; a possibility which was clearly indicated in section 25 of the 2006 Act and which he was or ought to have been aware of (see paragraphs 22 and 29 above). The Court has found in a similar case Pohlen v. Slovenia ( (dec.), no. 28457/03, §§ 40-43 , 3 June 2008 ) that such a claim could be considered an effective remedy in terms of Articles 13 and 35 § 1 of the Convention.

41 . Having regard to the foregoing, the Court considers that the applicant can no longer be considered a victim of the alleged violation (see, mutatis mutandis , La Rosa and Alba v. Italy (no. 1) (striking out), no. 58274/00, § 25 , 28 June 2005 ). As a result, the Court is no longer justified to continue the examination of this part of the application within the meaning of Article 37 § 1 ( c) of the Convention. Moreover, the Court considers that no other element regarding respect for human rights as guaranteed by the Convention requires that the application be examined further under A rticle 37 § 1 in fine .

2. Complaint of lack of an effective remedy

42 . The Court has already found that the 200 6 Act afford s the applicant s in the situation such as the present one an effective remedy in respect of their complaint s about the length of proceedings ( Pohlen , §§ 36-43, cited above ). The applicant, too, would have at his disposal such a remedy if he were dissatisfied with the settlement proposals made by the State Attorney ' s Office. Hence, it follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. Remaining complaint

43 . As to the complaint essentially concerning unfairness of the proceedings (see paragraph 32 above), which falls to be examined under Article 6 of the Convention , the Court notes that in all sets of proceedings the applicant failed to lodge a constitutional appeal in accordance with the procedural requirements.

44 . It follows that the applicant failed to exhaust domestic remedies (see, mutatis mutandis , Šubinski v. Slovenia , no. 19611/04, §§ 87-89, 18 January 2007 ) and that this complaint must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases in so far as it relates to the complaint about the length of the proceedings under Article 6 § 1 of the Convention;

Declares the remainder of the application inadmissible.

Santiago Quesada Josep Casadevall Registrar President