FIFTH SECTION

CASE OF PLUT AND BIČANIČ-PLUT v. SLOVENIA

( Application no. 7709/06 )

JUDGMENT

This version was rectified on 31 July 2013

under Rule 81 of the Rules of Court

STRASBOURG

18 July 2013

FINAL

18/10/2013

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Plut and Bičanič-Plut v. Slovenia ,

The European Court of Human Rights ( Fifth Section ), sitting as a Chamber composed of:

Mark Villiger , President, Angelika Nußberger , Boštjan M. Zupančič , Ann Power-Forde , André Potocki , Paul Lemmens , Helena Jäderblom , judges, and Claudia Westerdiek, Section Registrar ,

Having deliberated in private on 25 June 2013 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 7709/06) 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 two Slovenian nationals, Ms Boža Plut and Mr Aleksander Bičanič Plut (“the applicants”), on 8 February 2006 .

2 . The applicant s were represented by Ms M. Verstovšek, a lawyer practising in Celje. The Slovenian Government (“the Government”) were represented by their Agent.

3 . On 27 April 2012 the application was communicated to the Government .

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4 . The applicants are mother and son. They were born in 1959 and 1994 , respectively , and live in Primskovo .

5 . On 27 October 1998 the mother ( hereinafter referred to as “the applicant”) instituted a labour dispute against her former employer before the Ljubljana Labour and Social Court seeking the payment of wages.

6 . Between 19 June 2002 and 12 July 2002 the court held two hearings. A hearing scheduled for 18 October 2002 was postponed on the request of the applicant. She requested a postponement for a period of six months.

7 . On 30 July 2004 the applicant received a notice for a hearing scheduled on 14 September 2004.

8 . On 14 September 2004 the court held a hearing and issued a decision on suspension of proceedings , because both parties failed to attend . The court found that in the absence of a request for a hearing or any other procedural step within four months the proceedings would be terminated.

9 . On 25 October 2005 the court held a hearing. It appears that there was either a request for a hearing or a submission lodged so the proceedings could continue.

10 . On 28 March 2006 the court held a hearing and delivered a judgment , rejecting the applicant ’ s request . She appealed.

11 . On 21 September 2006 the Higher Labour and Social Court rejected the appeal. She lodged an appeal on points of law.

12 . On 9 January 2007 the Supreme Court rejected the appeal.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE S 6 § 1 AND 13 OF THE CONVENTION

13 . The applicant s complained that the length of the proceedings had been incompatible with the “reasonable time” r equirement, 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 ... ”

14 . The applicant s further complained that the remedies available for excessively long 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

15 . A s regards the victim status of the son , the Court notes that the domestic proceedings concerned a labour dispute to which the son was not a party. Having regard to the Court ’ s case law on the subject (see , for example, Bitenc v. Slovenia , (dec.), no. 32963/02 , 18 March 2008 , with other references ) and the circumstances of the present case, the son cannot be considered as a victim of the alleged violations. The part of the application concerning the son is therefore incompatible ratione personae with the provisions of the Convention and it must be rejected in accordance with Articles 34 and 35 §§ 3 (a) and 4 of the Convention .

16 . As regards to the applicant ’ s complaints about the undue length of proceedings and lack of an effective remedy , the Court notes that the y are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Nor they are inadmissible on any other grounds (see Maksimovič v. Slovenia , no. 28662/05 , 22 June 2010, §§ 21–24 ) . They must therefore be declared admissible .

B. Merits

1. Article 6 § 1

17 . The period to be taken into consideration began on 27 October 1998 , the day the applicant instituted proceedings before the Ljubljana Labour and Social Court , and ended on 9 January 2007 , the date of the Supreme Court ’ s judgment . It therefore lasted eight years and two months at three levels of jurisdiction.

18 . 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).

19 . Turning to the circumstances of the present case, t he Court notes that it took the first- instance court three years and e ight months to schedule the first hearing (see paragraphs 5 and 6 above) . Such a delay on the part of the domestic authorities in a labour dispute , where additional diligence is required, cann ot be considered as reasonable.

20 . The Court further notes that the applicant requested a postponement of a hearing for a period of six months (see paragraph 6 above) . In addition, the proceedings were stayed due to the failure of the parties to appear at hearings (see paragraph 8 above). The total delay attributable to the applicant therefore amounts to approximately ten months.

21 . Having examined all the material submitted to it, and having regard to its case-law on the subject ( see Å ramel v. Slovenia , no. 39154/02 , §§ 21 ‑ 23, 13 December 2007; Palamarchuk v. Ukraine , no. 28585/04, §§ 45 - 47 , 15 July 2010; and Marič v. Slovenia , no. 35489/02, §§ 21 -23, 21 December 2006 ) , the Court considers that in the instant case the length of the proceedings , in particular before the first-instance court, was excessive and failed to meet the “reasonable-time” requirement.

There has accordingly been a breach of Article 6 § 1.

2. Article 13

22 . 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). In view of its findings in the case Maksimovič v. Slovenia (cited above , §§ 29–30 ), the Court finds 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 could have obtained a ruling upholding her right to have her case heard within a reasonable time , as set forth in Article 6 § 1 .

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

23 . Lastly , the applicant complained that her rights under Article 1 of Protocol No. 1 of the Convention were breached , since she was deprive d of her wages . She further complained under Article 14 of the Convention that she was discriminated against by the State . In this connection she complains that as a consequence for not receiving the wages she claims to be entitled to , she was not able to pay for the kindergarten , which caused irreparable damage to her child .

24 . The Court notes that the applicant failed to lodge a constitutional appeal. T hese complaints should therefore be rejected under Article 35 § 1 and 4 of the Convention for non-exhaustion of domestic remedies.

III . APPLICATION OF ARTICLE 41 OF THE CONVENTION

25 . 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 rep ara tion to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

26 . The applicant claimed 10,000 euros (EUR) in respect of non ‑ pecuniary damage.

27 . The Government co ntested the claim.

28 . The Court considers that the applicant must have sustained non ‑ pecuniary damage. Ruling on an equitable basis, it awards her EUR 2, 30 0 under that head .

B. Costs and expenses

29 . The applicant also claimed EU R 500 for the costs and expenses incurred before the Court.

30 . The Government co ntested the claim.

31 . Regard being had to the documents in its possession and to its case-law , the Court c onsiders that the sum cla imed should be awarded in full.

C. Default interest

32 . 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

1 . Declares unanimously 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 by six votes to one that there has been a violation of Article s 6 § 1 and 13 of the Convention;

3 . Holds by six votes to one

(a) that the respondent State is to pay the applicant , within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention , the following amounts:

(i) EUR 2, 30 0 ( two thousand three hundred euros [1] ) , plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii ) 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 poin ts;

4 . Dismisses unanimously the remainder of the applicant ’ s claim for just satisfaction.

Done in English, and notified in writing on 18 July 2013 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Claudia Westerdiek Mark Villiger Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Power-Forde is annexed to this judgment.

M.V. C.W.

DISSENTING OPINION OF JUDGE POWER-FORDE

I cannot agree with the majority that there was a violati on of Articles 6 in this case. In my dissenting opinion in Barišič v. Slovenia , I indicated that I do not agree with this Court ’ s “broad brush” approach to length of proceedings claims and I set out the reasons f or my position in this regard. The same reasoning applies with equal force to the instant case.

Although the proceedings commenced in October 1998 and two hearings were held in June and July 2002, the draft records no details as to when the defendant company filed its defence or what, if any, pre-trial steps were taken. Furthermore, the applicant herself requested a postponement of a trial hearing for a period of six months in October 2002. When the matter was relisted once again the Court suspended the proceedings because neither of the parties appeared. Hearings were held in 2005 and 2006 and the applicant ’ s request was ultimately rejected. Within six months, the applicant ’ s appeal had been heard and that, too, was rejected. Within a further four months the Supreme Court heard and rejected her second appeal.

For the reasons set out in my dissenting opinion in Barišič v. Slovenia and absent a detailed consideration of what, in fact, transpired at national level and in the light of such facts as can be ascertained from the judgment, I cannot agree that there has been any violation of the Convention of the part of the Respondent State.

[1] Rectified on 31 July 2013 : the amount in words has been corrected to correspond to the numeric amount “ two thousand three hundred euros”.