FIFTH SECTION

CASE OF PODBELŠEK BRAČIČ v. SLOVENIA

( Application no. 42224/04 )

JUDGMENT

This version was r ectified on 5 July 2013

under Rule 81 of the Rules of Court .

STRASBOURG

18 April 2013

FINAL

18/07/2013

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

In the case of Podbelšek Bračič v. Slovenia ,

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

Mark Villiger , President, Angelika Nußberger , Boštjan M. Zupančič , Ganna Yudkivska , André Potocki , Paul Lemmens , Aleš Pejchal , judges, and Claudia Westerdiek , Section Registrar ,

Having deliberated in private on 19 March 2013 ,

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

PROCEDURE

1 . The case originated in an application (no. 42224/04) 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 a Slovenian national, Ms Zdenka Podbelšek Bračič (“the applicant”), on 15 November 2004 .

2 . The Slovenian Government (“the Government”) were represented by their Agent.

3 . On 8 March 2012 the application was communicated to the Government .

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4 . The applicant was born in 1963 and lives in Kamnik .

5 . On 28 November 1998 the applicant instituted civil proceedings concerning essentially a division of joint property before the Ljubljana District Court. On 14 December 1998 the applicant ’ s claim was referred to the Kamnik Local Court . The proceedings were initially conducted before the Kamnik Local Court ( First set of proceedings ) but were later separated into two sets of proceedings, and in part referred to the Ljubljana District Court ( s econd set of proceedings ).

A. First set of proceedings

6 . Between 1999 and 2001 the Kamni k Local Court held three hearings .

7 . On 19 June 2002 the applicant lodged a request to refer her case to another court having subject matter jurisdiction. Due to the applicant ’ s request a hearing scheduled for 26 June 2002 was adjourned.

8 . On 5 September 2002 the Supreme Court dismissed the applicant ’ s request.

9 . After the applicant had amended her claim on 9 January 2003, the local court postponed the hearing scheduled for 14 January 2003 in order to allow the defendant to reply to the amended claim.

10 . On 12 September 2003 the applicant lodged a motion for an interim order asking the court to order the defendant to vacate the disputed premises and to order an entry in the land register prohibiti ng the alienation and encumbrance of the property . On 20 October 2003 the Kamnik Local Court partially rejected the applicant ’ s motion . The applicant appealed.

11 . On 18 February 2004 the Ljubljana Higher Court dismissed the applicant ’ s appeal.

12 . On 6 June 2005 the Kamnik Local Court issued a decision to suspend the proceedings. On 14 September 2005 the Ljubljana Higher Court annulled the decision suspending the proceedings.

13 . Between 2003 and 2005 the applicant lodged two supervisory appeals with the Ministry of Justice and on several occasions requested the Kamnik Local Court to schedule a hearing and decide the case.

14 . At a hearing on 1 January 2006 the Kamnik Local Court decided to postpone the main hearing until 10 March 2006 in order to allow the defendant to consider the settlement proposal of the applicant .

15 . After the parties to the procedure failed to reach a settlement, the Kamnik Local Court , after holding a hearing on 10 March 2006 , on t hat day dismiss ed the claim of the applicant. The applicant appealed.

16 . On 21 March 2007 the applicant ’ s appeal was dismissed by the Ljubljana Higher Court . Subsequently the applicant lodged an appeal on the points of law with the Supreme Court.

17 . On 24 May 2007 the Supreme Court discontinued the proceedings due to the settlement reached in the second set of proceedings and the applicant ’ s withdrawal of the appeal.

B. Second set of proceedings

18 . The second set of proceedings relates to the part of the applicant ’ s initial claim that exceeded the competence of the local court and was referred to the Ljubljana District Court on 7 January 2004 .

19 . Five hearings were held between 6 July 2004 and 22 May 2007 . On the latter date the parties reached a settlement agreement and the proceedings were discontinued on 28 May 2007.

II. RELEVANT DOMESTIC LAW

20 . For relevant domestic law see Tomažič v. Slovenia (no. 38350/02, 13 December 2007 ).

21 . In addition, s ection 25 of the Act on the Protection of the Right to a Trial without undue Delay , as amended on 9 June 2012, reads as follows:

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

“(1) In cases where a violation of the right to a trial without undue delay has already ceased by 31 March 2007 (emphasis added) and the party has made 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 a period of four months at the latest ... ”

THE LAW

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

22 . The applicant 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 ... ”

23 . In substance, the applicant further complained that the remedies available for excessive legal proceedings in Slovenia were ineffective . Article 13 of the Convention reads as follows:

“Everyone whose rights and freedoms as set forth in [t his ] 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

24 . As regards the first set of proceedings the Government offered a settlement proposal made by reference to section 25 of the 2006 Act to the applicant in the form of a written statement pursuant to section 15 of the said act acknowledging the violation of the right to a trial in a reasonable time and offered the applicant a monetary compensation in the amount of EUR 450. The applicant did not accept the offer.

25 . The Court observes that t he transitional provision of the 2006 Act, namely section 25, as amended on 9 June 2012, provides for the procedure to be followed in respect of applications where the violation of the “reasonable time” requirement has already ceased to exist before 3 1 March 2007. Notwithstanding the fact that the settlement proposal was made by reference to section 25, as the proceedings to which the applicant was a party continued before the Supreme Court after 31 March 2007 , the above provision does not apply to the applicant ’ s case.

26 . As regards the application of other provisions of the 2006 Act, in particular its section 19, the Court notes that the proceedings in the present case had been finally resolved with in the first three months after the 2006 Act became operational and have subsequently continued before the Supreme Court. Having regard to the 2006 Act as in force at the material time (see by contrast, Žurej v. Slovenia , (dec.), no. 10386/03 , 1 6 March 2010 , § 17 ), the applicant had no possibility to claim compensation for the delays incurred in the proceedings (see mutatis mutandis , Tomažič v . Slovenia , no. 38350/02, 13 December 2007, §§ 41-45 and Lesjak v. Slovenia (no. 33946/03, 21 July 2009, §§ 54-55). The Government ’ s objection concerning the exhaustion of domestic remedies as regards the first set of proceedings should therefore be dismissed.

27 . The Court further notes that the part of the application concerning the first set of proceedings is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.

28 . As to the second set of proceedings the Court notes that these wer e pending at first instance on 1 January 2007 and continued for more than three months. Following the Court ’ s findings in the cases Grzinčič v. Slovenia ( no. 26867/02, § 110, 3 May 2007 ) and Nezirovič v. Slovenia ( no. 16400/06, (dec.), §§ 27-42 , 18 November 2008 ) that the applicants were required to use the remedies available to them under the 2006 Act, the complaint s under Article s 6 and 13 must be declared inadmissible in accordance with Article 35 §§ 1 and Article 35 §§ 3 and 4 of the Convention , respectively.

B. Merits

1. Article 6

29 . The period to be taken into consideration began on 28 November 1998 , the date when the applicant instituted civil proceedings before Kamnik Local Court and ended on 24 May 2007 , when the Supreme Court stayed the proceedings . The proceedings thus lasted eight years and six months at three levels of jurisdiction.

30 . 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).

31 . The Court notes that the case concerned civil proceedings and that, in the absence of any arguments as to the contrary put forward by the Government, it do es not appear that the proceedings were particularly complex.

32 . Examining the applicant ’ s behaviour, the Court observes that the applicant might have contributed to the length of proceedings by requesting the case to be referred to another competent court , by modifying h er claim five days before a scheduled hearing and by lodging a motion for an interim order . In this respect the Court recalls that while the applicant is entitled to make use of his procedural rights, she must bear the consequences when h er exercise leads to delays (see, inter alia , Malicka-Wąsowsa v. Poland (dec.), no. 41413/98, 5 April 2001, and Peryt v. Poland , no. 42042/98, 2 December 2003).

33 . I n the circumstances of this case and having examined all the material submitted to it , the Court however d oes not find that the applicant ’ s conduct had a significantly adverse affect on the length of proceedings . The applicant ’ s request for a referral to another court was dealt within less than three months . Similarly, also the applicant ’ s request for an interim order was processed within less then four mo n ths.

34 . As to the postponement of one of the hearings due to the fact that the applicant had modified her claim shortly before that hearing, the Court notes that in fact no hearing was afterwards held for a further three years, despite the applicant ’ s repeated request to schedule a hearing and deliver the judgment. The Court considers that the conduct of the applicant cannot justify such a long period of inactivity, which is to the contrary practically entirely attributable to the public authorities.

35 . Furthermore, the Court cannot ignore the fact that it eventually took the first-instance court seven years to deliver its judgement.

36 . Having regard to the circumstance s of the case and its case -law on the subject ( see, Zabovnik v. Slovenia, nos. 17596/06 and 17608/06 , §§ 24 ‑ 27, 18 October 2012 ; Å ramel v. Slovenia , no. 39154/02, §§ 21-23 , 13 December 2007, Kočevar v. Slovenia , no. 40128/02, §§ 17-19, 27 April 2006 ) , the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

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

2 . Article 13

37 . 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).

38 . In the present case the Court is not persuaded that the applicant could have had access to the compensation claim and finds the remedies of the 2006 Act ineffective (see paragraphs 2 5 -2 6 above). As regards the remedies available prior to the implementation of the 2006 Act, the Court sees no reason to take a different approach to that taken in earlier cases in which th o se remedies were considered ineffective (see Lukenda v. Slovenia , no. 23032/02, 6 October 2005).

39 . Accordingly, the Court considers 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 h er case heard within a reasonable time, as set forth in Article 6 § 1.

III . APPLICATION OF ARTICLE 41 OF THE CONVENTION

40 . 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

41 . The applicant claimed between 3 ,000 and 5,000 euros (EUR) in respect of non-pecuniary damage.

42 . The Government contested the claim.

43 . The Court considers that the ap plicant must have sustained non ‑ pecuniary damage. Ruling on an equitable basis, it finally awards her EUR 3 , 200 under that head.

B. Costs and expenses

44 . The applicant also claimed between EUR 500 and EUR 1 , 000 for the costs and expenses incurred before the Court.

45 . The Government co ntested the claim.

46 . The Court considers it reasonable to award the applicant , who was not represented by a lawyer , EUR 300 in respect of costs and expenses incurred before the Court.

C. Default interest

47 . 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 by a majority the complaint concerning the first set of proceedings admissible;

2. Declares unanimously the remainder of the application inadmissible ;

3 . Holds by six votes to one t hat there has been a violation of Article 6 § 1 and Article 13 of the Convention;

4 . 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, [1] the following amounts:

(i) EUR 3,200 (three thousand two hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 300 (three 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

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

Done in English, and notified in writing on 18 April 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 Pejchal is annexed to this judgment.

M.V. C.W.

DISSENTING OPINION OF JUDGE PEJCHAL

I disagree with the majority ’ s finding of a violation of the applicant ’ s right to a fair trial within “a reasonable time”. I am of the opinion that the term “reasonable time” is not the same as “a time without delay”. However, I have observed that the case - law of the Court has recently been more inclined to define the meaning of “reasonable time” in terms of “a short time”.

The essential case-law reiterates that the reasonableness of the length of proceedings must be assessed “in the light of the circumstances of the case”. The Court ’ s assessment cannot be of a sweeping character. The examination of individual cases by the Court must be oriented not only to wards the applicant but also to wards the High Contracting Party.

Traditions, culture and the standard of living vary from one member State of the Council of Europe to another. Some citizens of “ Europe ” prefer an agreement, a mediation, to a dispute before a court of law. To have litigation opened before the national court can, for some citizens of some countries, be dishonouring, whereas in other countries it can sometimes be considered a victory.

With the benefit of my long-lasting practice I can say from personal experience that a longer trial can afford a better position to all parties to a lawsuit. Sometimes an expeditious judgment can be worse for the parties than a reasonable agreement between the litigants after lengthy proceedings.

After all, as Seneca said: “ Quod ratio non quit, saepe sanavit mora ” (time often heals what reason cannot). In this saying Seneca very appropriately defined the natural rule of a spontaneous order of free citizens. In this respect, the purpose of the Convention is, above all, the protection of fundamental freedoms. The protection of human rights is the key to protecting such freedom. Without freedom the protection of human rights would merely be illusory . A life lived in the spontaneous order is a life lived in freedom.

Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms brought a very important and new perspective on this issue.

The Explanatory Report to Protocol No. 14, amending the control system of the Convention , sets out a new admissibility criterion, its paragraph 80 reading as follows:

“The main element contained in the new criterion is the question whether the applicant has suffered a significant disadvantage. These terms are open to interpretation (this is the additional element of flexibility introduced); the same is true of many other terms used in the Convention, including some other admissibility criteria. Like those other terms, they are legal terms capable of, and requiring, interpretation establishing objective criteria through the gradual development of the case-law of the Court.”

It follows from this paragraph that there are two important elements:

1. The main element – “a significant disadvantage suffered”.

2. The additional element – “its openness to interpretation”.

Why is the question whether a significant disadvantage has been suffered by the applicant laid down as the main element of the new admissibility criterion? Because this element has to form an integral part of all consideration by the Court of a violation of any Article of the Convention. And why is this element open to interpretation? It is a matter of fact that any consideration by the Court implies interpretation of the Convention.

Nonetheless, every international treaty must be interpreted within the limits of international law. Any consideration of the Court is also bound by international law. The general rule of interpretation of international treaties is provided for in the Vienna Convention on the Law of Treaties, in Article 31 § 1 thereof, which reads as follows: “ A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”

A judgment of the Court is an individual decision on an alleged violation of the Convention which incorporates an individual decision as to a significant disadvantage which the applicant has suffered. Accordingly, I consider that the assessment of the present case lacks an examination of the relationship between a potential significant disadvantage for the applicant and the length of the trial.

The sweeping conclusion of the Court and its interpretation of the Convention to the effect that “a reasonable time” means exclusively “a short time” (which I believe is contrary to the Vienna Convention on the Law of Treaties) may be dangerous as regards the implementation of the Court ’ s case-law at national level. Such interpretation of the Convention might institute a practice of national courts whereby the quality of decisions would lose out to the speed and quantity of decisions, without the national courts being interested in the real needs of the parties to the lawsuit. Furthermore, this sweeping kind of decision-making on the part of the Court is not quite in line with its subsidiary role.

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.

[1] Rectified on 5 July 2013 : “ from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention , ” has been inserted.