FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42320/98 by Ivanka and Franc BELINGER against Slovenia

The European Court of Human Rights (First Section), sitting on 2 October 2001 as a Chamber composed of

Mrs E. Palm , President , Mr L. Ferrari Bravo , Mr Gaukur Jörundsson , Mr R. Türmen , Mr B. Zupančič , Mr T. Panţîru , Mr R. Maruste , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 18 January 1995 and registered on 21 July 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants are Slovenian nationals resident in Murska Sobota .  The first applicant, Mrs Ivanka Belinger , was born in 1952 and receives an invalidity pension. She is the wife of the second applicant, Mr Franc Belinger , who was born in 1942 and is a travelling salesman.

I. THE CIRCUMSTANCES OF THE CASE

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

On 21 January 1991 the Murska Sobota General Hospital ( Splošna bolnica Murska Sobota ) compensated the first applicant for non-pecuniary damage relating to an operation which she had undergone in February 1990. She had suffered from certain illnesses and also underwent surgery before 1990.

On 13 September 1991 the applicants brought civil proceedings against the hospital. The first applicant claimed compensation for the deterioration of her health and the loss of income which, in her view, were due to the aforesaid operation, and demanded a monthly allowance. The second applicant claimed damages on the ground that he had had to stop working in order to take care of the first applicant and that the latter’s invalidity had caused him a trauma.

The first hearing was held on 26 March 1993. The Murska Sobota first instance court ordered that the Ljubljana Institute for Forensic Medicine submit an expert opinion. The surgical, neurosurgical and gynaecological opinion was prepared on 31 May 1993.

On 1 July 1993 the first applicant extended her action by claiming damages for the suffering resulting from her disfigurement.

On 12 December 1993 the first instance court held a second hearing.

On 17 December 1993 the applicants increased the amount of the compensation claimed by them.             

On 21 December 1993 the first instance court held another hearing. It heard both parties and ordered a second expert opinion to be submitted by the Commission for Expert Opinions of the Ljubljana Faculty of Medicine within thirty days.  The court instructed the experts (a surgeon, an orthopaedist, a gynaecologist and a neurosurgeon) to establish, in particular, whether the first applicant’s operation was the only reason for her sickness and invalidity.

In 1994 the applicants lodged several appeals about the length of the proceedings with the Ministry of Justice, the Murska Sobota first instance court, the Supreme Court, the Petitions Commission of the National Assembly, the Ministry of Health and the Commission for Expert Opinions.

On 27 January 1994 the Ministry of Justice informed the applicants that it considered their appeal unsubstantiated as their case was complex and required thorough medical expertise.

On 9 and 14 June and on 6 July 1994 the president of the Murska Sobota first instance court informed the applicants that the difficulties in obtaining the second expert opinion were due to the complexity of the case and the heavy workload of the experts. The president further pointed out that delays in obtaining the opinions were also due to the applicants’ decision to extend their action.

In a letter of 29 September 1994 the Ministry of Health admitted that there had been a delay in submitting the second expert opinion which was due to the complexity of the case and also to the fact that the head of one of the two expert teams appointed to draw up the opinion had been absent for unforeseen reasons.

On 21 September 1994 the first applicant was examined by experts of the Ljubljana Faculty of Medicine.

The second expert opinion was drafted on 20 October 1994, but some points remained unclear. Therefore an additional expert opinion was requested. The final opinion was drafted on 5 January 1995 and submitted to the first instance court on 13 January 1995.

On 13 December 1995 the first instance court held another hearing.

On 1 April 1996 the District Court ( Okrožno sodišče ) delivered a judgment by which it granted in part the applicants’ action. Both the applicants and the defendant hospital appealed.             

On 21 January 1997 the Maribor Higher Court ( Višje sodišče ) granted the applicants’ appeal.  It quashed the relevant part of the first instance judgment and sent the case back to the District Court for a new decision on the matter.  The Higher Court further upheld, with minor amendments, the part of the first instance judgment which had been challenged by the defendant hospital.

On 29 October 1997, in the course of a hearing before the District Court, the first applicant extended her action by claiming compensation for the shortfall in her pension.

Following a hearing held on 19 June 1998 the proceedings were adjourned.

The District Court held a hearing on 26 February 1999. Another expert opinion allegedly requested by the applicants was prepared on 29 November 1999.

On 12 July 2000 the District Court delivered a judgment. The court awarded compensation to the first applicant for the suffering resulting from her disfigurement and compensation to the second applicant for loss of income. The other claims of the applicants were dismissed as unsubstantiated. Both the applicants and the defendant hospital appealed. The proceedings are still pending.

II. RELEVANT DOMESTIC LAW AND PRACTICE

1. The 1991 Constitution of the Republic of Slovenia

Article 23 of the Constitution of the Republic of Slovenia ( Ustava Republike Slovenije ) guarantees the right to a trial within a reasonable time and provides as follows:

“Everyone has the right to have any decision regarding his rights, duties and any charges brought against him made without undue delay by an independent, impartial court constituted by law. ...”

Article 157 provides for judicial review of constitutional rights and reads:

“A court having jurisdiction to review administrative acts decides the legality of final individual acts with which state authorities, local community authorities and bearers of public authority decide the rights or obligations and legal entitlements of individuals and organisations, if other legal protection is not provided by law for a particular matter.

If other legal protection is not provided, the court having jurisdiction to review administrative acts also decides on the legality of individual actions and acts which encroach upon the constitutional rights of the individual.”

Article 160 determines the jurisdiction of the Constitutional Court and reads, so as far as it is relevant:

“The Constitutional Court shall hear:

... constitutional appeals alleging infringements of human rights and fundamental freedoms by specific acts; ...

Unless otherwise provided by law, the Constitutional Court shall hear a constitutional appeal only if legal remedies have been exhausted. The Constitutional Court shall decide whether a constitutional appeal is admissible for adjudication on the basis of statutory criteria and procedures.”

2. The 1977 Administrative Disputes Act

Before the adoption of the new statute in July 1997, the protection of constitutionally guaranteed rights and freedoms where no other judicial review existed was regulated by Sections 66 to 76 of the Yugoslav Administrative Disputes Act 1977 ( Zakon o upravnih sporih nekdanje Jugoslavije ) . Pursuant to Article 4 of the Constitutional Sovereignty and Independence Act of the Republic of Slovenia 1991 ( Ustavni zakon za izvedbo Temeljne ustavne listine o samostojnosti in neodvisnosti Republike Slovenije ), that statute was applied as a Republic regulation after the independence of Slovenia in 1991.

Before the reorganisation of the Slovenian courts, the protection of constitutional rights fell within the jurisdiction of the first instance courts ( Temeljna sodišča ). From 1 January 1995 until the application of the new statute on administrative disputes, the Supreme Court ruled on encroachments upon the constitutional rights of individuals.

3. The 1997 Administrative Disputes Act

Since 1 January 1998 when the procedural provisions of the  Administrative Disputes Act 1997 ( Zakon o upravnem sporu ) became operational, protection of the constitutional right to a trial within a reasonable time can be sought through administrative proceedings before the newly established Administrative Court and before the Supreme Court in the appellate procedure. Section 1 (3) of the Act reiterates the relevant provision of the Constitution (see Article 157 § 2, quoted above). Under Section 62 an individual may seek a declaration that there has been a violation of his right guaranteed by Article 23 of the Constitution and claim compensation for loss. The court may also indicate measures to remedy the situation.

4. The 1994 Constitutional Court Act

The Constitutional Court Act ( Zakon o Ustavnem sodišču ) governs the composition and functioning of the Constitutional Court.

Section 1

The Constitutional Court is the highest body of judicial authority for the protection of constitutionality, legality, human rights and basic freedoms...

Decisions of the Constitutional Court are legally binding.”

Sections 50 to 60 of the Act concern constitutional appeals lodged by individuals.

Section 50

“Any one who believes that his or her human rights and basic freedoms have been infringed by a particular act of a state body, local community body or statutory authority may lodge a constitutional appeal with the Constitutional Court, subject to compliance with the conditions laid down by this Act. ...”

Section 51

“A constitutional appeal may be lodged only after all legal remedies have been exhausted.

Before all special legal remedies have been exhausted, the Constitutional Court may exceptionally hear a constitutional appeal if a violation is probable and if irreparable consequences for the appellant would occur as a result of the implementation of a particular act.”

5. The 1994 Judicature Act

Section 72 of the Judicature Act 1994 ( Zakon o sodiščih ) provides that, in the case of a delay in proceedings, any party may address a "supervisory appeal" ( nadzorstvena pritožba ) to the president of the court or to the Ministry of Justice. The president of the court or the Ministry through the president of the Court then requests the judge dealing with the case to prepare a report on the progress of the case and the allegations of the aggrieved party. In addition, after the modification of the Judicature Act in March 2000, the court has to inform the Ministry of the measures taken to accelerate the proceedings.

According to Section 73, 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 its findings.

6. The Constitutional Court’s decision of 7 November 1996

In its decision of 7 November 1996 (Up 277/96), the Constitutional Court ruled that constitutional appeals under Article 160 of the Slovenian Constitution should also be allowed in the case of excessive slowness of pending court proceedings, that is, for failure to perform an individual act.

It further stated that to ensure the right to due process of law in the Slovenian legal system, the only judicial protection available was under Article 157 of the Constitution, i.e., through an administrative action. A constitutional appeal is as a rule allowed only after the exhaustion of that legal remedy.

COMPLAINT

The applicants complain under Article 6 § 1 of the Convention that the proceedings concerning their actions have been unreasonably lengthy.

THE LAW

The applicants’ complaint relates to the length of the proceedings concerning their actions, which began on 13 September 1991 and are still pending. They have therefore lasted about 10 years, of which 7 years and 2 months are subsequent to the entry into force of the Convention in respect of Slovenia on 28 June 1994.

The complaint is to be examined under Article 6 § 1 of the Convention, the relevant parts of which read as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

A. THE PLEA OF NON-EXHAUSTION OF DOMESTIC REMEDIES

The Government invited the Court to reject the application and maintained that the applicants had not exhausted domestic legal remedies concerning the alleged violation of Article 6 § 1.

The Government submitted that the right to a trial within a reasonable time was guaranteed by Article 23 of the Slovenian Constitution. In particular, the applicants had failed to make any applications to the Murska Sobota first instance court or to the Supreme Court after 1 January 1995, pursuant to Sections 66 - 76 of the Administrative Disputes Act 1977, which provided for judicial protection of the constitutional right to a trial within a reasonable time. Nor had they availed themselves of the possibility of instituting proceedings before the new Administrative Court and the Supreme Court in the appellate stage under Section 62 of the Administrative Disputes Act 1997, which had replaced the previous statute in that matter.

The Government further pointed out that the applicants had not lodged a constitutional appeal with the Constitutional Court under Article 51 § 1 of the Constitutional Court Act. A constitutional appeal could only be lodged after the administrative proceedings had been brought.  Only exceptionally could the Constitutional Court consider an appeal before the exhaustion of all legal remedies (Article 51 § 2 of the Constitutional Court Act).

The Government asserted that these legal avenues constituted an effective remedy, as their use would have helped to accelerate proceedings before the lower courts. They also mentioned the possibility of lodging a supervisory appeal with the president of the court or the Ministry of Justice under Section 72 of the Judicature Act 1994 in order to speed up the proceedings, which the applicants had done.

The applicants did not make any comments as to the effectiveness of an application under the 1977 and the 1997 Administrative Disputes Act or of the constitutional appeal. In substance, they maintained that there were no effective legal means available to speed up the proceedings. They had also requested the courts to proceed with the case on several occasions and filed a supervisory appeal with the Ministry for Justice.

1. The Court’s case-law

As to the Government’s preliminary objection, the Court reiterates that by virtue of Article 1 (which provides: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention”), the primary responsibility for implementing and enforcing the guaranteed rights and freedoms is laid on the national authorities. The machinery of complaint to the Court is thus subsidiary to national systems safeguarding human rights. This subsidiary character is reflected in Articles 13 and 35 § 1 of the Convention.

The purpose of Article 35 § 1, which sets out the rule on exhaustion of domestic remedies, is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, as recent authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V and Kudła v. Poland [GC] , no. 30210/96, § 152, ECHR 2000-...). The rule in Article 35 § 1 is based on the assumption, reflected in Article 13 (with which it has a close affinity), that there is an effective domestic remedy available in respect of the alleged breach of an individual’s Convention rights ( ibid .).

Under Article 35 of the Convention, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see, inter alia , the Vernillo v. France judgment of 20 February 1991, Series A no. 198, pp. 11-12, § 27, and Dalia v. France , no. 26102/95, § 38, ECHR 1998-I).

In relation to complaints about the length of proceedings, the focus with regard to Article 35 lies on the prevention of a breach of the Convention and not on recognition by the domestic authorities of a violation which has occurred or the grant of reparation for such a violation. What is important is whether a given remedy is capable of speeding up proceedings or preventing them from becoming unreasonably long. Admittedly, the issue of length of proceedings under Article 6 of the Convention does not relate to one specific domestic decision which is then examined by the Court as to its compatibility with the obligations set out under the Convention, but rather relates to a situation which develops over a certain period of time. Thus, the effectiveness of a remedy which has to be used for the purposes of Article 35 may depend on whether it has a significant effect on the length of the proceedings as a whole (see, mutatis mutandis , Holzinger v. Austria (1) (preliminary objections), no. 23459/94, § 22, ECHR 2001-...).

Furthermore, in the area of exhaustion of domestic remedies, there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to convince the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. However, once this burden of proof has been discharged it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (see, inter alia , the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996 - IV, p. 1211, § 68).

2. The application of the case-law

In the instant case, the Court has to determine whether an administrative action and a constitutional appeal could have been considered as accessible and effective domestic remedies available in theory and in practice at the relevant time to expedite pending proceedings or prevent them from becoming unreasonably long.

The Court observes that pursuant to the 1977 and the 1997 Administrative Disputes Acts, the applicants could have first filed an action with the first instance courts seeking a declaration that there has been a violation of their right guaranteed by Article 23 of the Constitution and claiming compensation for loss. If unsuccessful, they could have started proceedings before the Supreme Court under the 1997 Act and eventually lodged a constitutional appeal with the Constitutional Court under Section 51 § 1 of the Constitutional Court Act. The condition that the appellants have to institute an administrative action before lodging a constitutional appeal under this section was confirmed by the Constitutional Court’s decision of 7 November 1996.

Regard being had to the existing backlog in the Slovenian courts in general and those courts having jurisdiction for administrative proceedings in particular over the last few years, a situation referred to by the Commission of the European Communities during Slovenia’s negotiations with the European Union, the Court considers that the probable length of the administrative proceedings followed by the Constitutional-Court proceedings jeopardises the effectiveness of the remedies suggested by the Government. The Government did not indicate that such actions would be treated with priority either before the first instance and appellate courts or before the Constitutional Court. There are therefore no guarantees that these additional proceedings would be heard within a more reasonable time than the main proceedings. According to the Court’s settled case-law, a remedy which will not bear fruit in sufficient time does not fall within the category of effective remedies which Article 35 would oblige the applicants to exhaust (see, mutatis mutandis , the Pine Valley Developments Ltd and Others v. Ireland of 29 November 1991, Series A no. 222, pp. 21-22, § 47).

Secondly, the Court notes that the Government did not suggest how the applicants would obtain preventive relief by having recourse to an administrative action.              By virtue of Section 62 of the Administrative Disputes Act 1997, which replaced previous provisions in this matter, the courts can find a violation of the right to a trial within a reasonable time and award compensation. They may also indicate measures to remedy the situation. The Court notes that no specific measures (i.e., to decide a case or take specific procedural measures within a fixed time-limit) to expedite the determination of the applicants’ civil rights were indicated. Even assuming that the first instance courts and the Supreme Court prior to the application of the Administrative Disputes Act 1997 could have indicated such measures, the situation becomes more complicated when it is the Administrative Court which decides on the unreasonable length of the civil proceedings, as in the instant case.

Thirdly, as to the Government’s argument that a constitutional appeal, lodged under Section 51 §§ 1 or 2 of the Constitutional Court Act, would have accelerated the main proceedings, the Court reiterates in the first place that a constitutional appeal lodged after the exhaustion of internal legal remedies (i.e., the administrative action), is already problematic from the point of view of the probable length of the proceedings (see above). Furthermore, the Government did not indicate whether the Constitutional Court would proceed with examination of the appeal without further delays and whether it could order the court dealing with the case to decide or to take procedural measures within a fixed time-limit (see above).

The Court further notes that the possibility of lodging a constitutional complaint under 51 § 2 of the Constitutional Court Act before the exhaustion of other legal remedies is reserved only for cases where it is evident that a violation is probable and if certain irreparable consequences may arise from the failure of the relevant authorities to reach a decision.

In the present case, the Government did not produce before the Court any decisions, either of the lower courts or of the Constitutional Court, or supply a statistical survey of administrative actions or constitutional appeals lodged, to support their argument concerning the accessibility and effectiveness of the remedies in practice. The absence of the settled case ‑ law and of the statistical survey do, however, indicate the present uncertainty of these remedies in practical terms. In the Court’s view, there is nothing to warrant an assumption that the main proceedings would be speeded up as a result of bringing an administrative action or a constitutional appeal.

The Court would observe that the supervisory appeal brought under Section 72 of the Judicature Act 1994 is a remedy in the framework of the judicial administration and not within the judicial system. When examining the effectiveness of this remedy in 1995, the Commission decided that it provided no guarantee that the pending proceedings would be accelerated and that it resulted in no legally binding obligation on the court concerned. Nor could the supervisory appeal give rise to any finding as to the length of the proceedings as a whole, or provide redress, in the form of compensation for example, for any unreasonable delay to date (cf., Holzinger v. Austria cited above , Go nzalez Marin v. Spain (dec.), no. 39521/98, ECHR 1999-VII, and Tomé Mota v. Portugal (dec.), no. 32082/96, ECHR 1999-IX). Therefore, the supervisory appeal could not be regarded as an effective remedy within the meaning of the Convention (see Majarič v. Slovenia, application no. 28400/95, Commission decision of 3 December 1997). This being said, the Court notes that after the modification of the Judicature Act in 2000, the court dealing with the case has to inform the Ministry of Justice of the measures taken to accelerate the proceedings.

In the light of the foregoing, the Court considers that the Government failed to establish that an administrative action or a constitutional appeal could be regarded as effective remedies in the circumstances of the present case. Thus, the Government’s preliminary objection raised under Article 35 § 1 must be dismissed.

B. AS CONCERNS THE MERITS

The applicants’ appeal relates to the length of the proceedings, which began on 13 September 1991 and are still pending. The period which the Court can examine by reason of its jurisdiction ratione temporis amounts to 7 years and 2 months (Slovenia ratified the Convention and recognised the right of individual petition on 28 June 1994).

According to the applicants, the length of the proceedings is in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention. The Government reject the allegation.

The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicants’ conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this appeal is required.

For these reasons, the Court unanimously

Rejects the Government’s plea of non-exhaustion of domestic remedies;

Declares the application admissible, without prejudging the merits of the case.

Michael O’Boyle Elisabeth Palm Registrar President