THIRD SECTION

CASE OF VARACHA v. SLOVENIA

( Application no. 9303/02 )

JUDGMENT

STRASBOURG

9 November 2006

FINAL

09/02/2007

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Varacha v. Slovenia ,

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

Mr J. Hedigan , President, Mr B.M. Zupančič , Mr C. Bîrsan , Mrs A. Gyulumyan , Mr E. Myjer , Mr David Thór Björgvinsson , Mrs I. Berro-Lefevre , judges, and Mr V . Berger , Section Registrar ,

Having deliberated in private on 19 October 2006 ,

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

PROCEDURE

1 . The case originated in an application (no. 9303/02) 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 Tamara Varacha ( “ the applicant ” ), on 6 February 2002 .

2 . The applicant was represented by Mr B. Kukec , a lawyer practicing in Vrhnika . The Slovenian Government (“the Government”) were represented by their Agent, Mr L. Bembič , State Attorney-General .

3 . The applicant alleged under Article 6 § 1 of the Convention that the length of the proceedings before the domestic courts to which she was a party was excessive. In substance, she also complained about the lack of an effective domestic remedy in respect of the excessive length of the proceedings (Article 13 of the Convention).

4 . On 13 September 2005 the Court decided to communicate the complaint s concerning the length of the proceedings and the lack of remedies in that respect to the Government . Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time.

THE FACTS

I. T HE CIRCUMSTANCES OF THE CASE

5 . The applicant was born in 1950 and lives in Ljubljana .

6 . On 27 February 1992 the applicant had a car accident. Five vehicles were involved in the incident. Mr F.J., t he driver of the car that ran into the applicant ' s car, had taken out insurance with the insurance company ZTI.

7 . On 1 June 1992 the applicant instituted civil proceedings against ZTI in the Kranj Basic Court , Kranj Unit ( Temeljno sodišče v Kranju , Enota v Kranju ) seeking payment of 52,185.12 ATS (approximately 3,800 euros) for the material damage sustained .

On 19 January 1994 the court held a hearing and decided to request the Klagenfurt Court ( Gericht in Klagenfurt ), Austria , to hear the applicant who lived in Klagenfurt at the time .

On 28 June 1994 the Convention took effect with respect to Slovenia .

On 12 October 1994 the applicant urged the court to issue the request to the Klagenfurt Court . She also requested the court to process her case more diligently.

On 1 January 1995 the Kranj Local Court ( Okrajno sodišče v Kranju ) gained jurisdiction in the present case due to the reform of the Slovenian judicial system.

On 10 April and 12 December 1996 , an d 12 February, 21 August and 21 October 1997 and 9 February 1998 the applicant repeated her request of 12 October 1994 .

On 9 September 1997 the court informed the applicant that it would only request the court in Austria to take her testimony , if she produced substantiated reasons why she could not appear before the court in Slovenia .

On 14 September 1998 the applicant informed the court that the reason why she should be heard in Austria was that she did not have sufficient knowledge of Slovene language to appear before the Slovenian court and that retaining an interpreter would be to costly and time consuming. Since t he court found those reasons in sufficient, it decided not to request a court in Austria to hear the applicant.

On 12 January 1999 the applicant requested that a date be set for a hearing.

On 9 February 1999 the court held a hearing and heard the applicant without an interpreter. The court found that the applicant was able to understand the questions in Slovene and was also able to respond in the same language to the questions asked. The court decided to adjourn the hearing till 23 March 1999 .

On 10 March 1999 the applicant requested the court to postpone the hearing scheduled for 23 March 1999 in order to allow her time to summon M.H., one of the witnesses. Her request was granted.

The postponed hearing was held on 29 April 1999 , but M.H. did not attend.

On 18 May 1999 the applicant informed the court that M.H. had died and requested the court to appoint a road traffic expert.

On 1 June 1999 the court held a hearing and decided to appoint a road traffic expert .

On 7 July 1999 the court appointed a road traffic expert and awarded him a delay of thirty days to produce an expert opinion.

On 28 September 1999 the expert delivered the opinion holding that Mr F.J. was only party liable for the damage made on the applicant ' s car. Another person involved in the accident was partly responsible for the remaining damage , but this person was not a party to the proceedings .

On 14 December 1999 the applicant submitted her comments on the expert opinion.

On 4 May 2000 the applicant requested the court to seek an additional opinion from the appointed expert.

On 6 October 2000 the court ordered the expert to produce an additional opinion, which he did on 20 November 2000 .

On 16 January 2001 the applicant lodged written submissions.

On 15 May 2001 the court held a hearing , heard the appointed expert and decided to deliver a written judgment .

The judgment, upholding the applicant ' s claim in part, was served on the applicant on 20 August 2001 . The judgm ent became final on 5 September 2001 .

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. The 1991 Constitution

8 . The Article 26 of the Constitution of the Republic of Slovenia ( Ustava Republike Slovenije ) reads as follows:

“Everyone shall have the right to compensation for damage caused by the unlawful acts of a person or body when performing a function or engaged in an activity on behalf of a state or local authority or as a holder of public office. ...”

B. The Code of Obligations 2001

9 . If a court is responsible for undue delay in the proceedings and an individual has sustained pecuniary damage as a result, he or she may claim compensation from the State under the Code of Obligations 2001 ( Obligacijski zakonik ). The person seeking compensation will thus have to prove, firstly, that there has been a delay in the proceedings; secondly, that damage has occurred and, thirdly, that there is a causal link between the conduct of the court and the damage sustained.

THE LAW

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

10 . The applicant complained about the excessive length of the proceedings . She relied on 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... ”

11 . 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 [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

12 . The Government pleaded non-exhaustion of domestic remedies.

13 . The applicant contested that argument, claiming that the remedies available were not effective.

14 . The Court notes that the present application is similar to the cases of Belinger and Lukenda (see Belinger v. Slovenia (dec.), no. 42320/98, 2 October 2001 and Lukenda v. Slovenia , no. 23032/02, 6 October 2005 ). In those cases the Court dismissed the Government ' s objection of non-exhaustion of domestic remedies because it found that the legal remedies at the applicant ' s disposal were ineffective. The Court recalls its findings in the Lukenda judgment that the violation of the right to a trial within a reasonable time is a systemic problem resulting from inadequate legislation and inefficiency in the administration of justice.

15 . As regards the instant case , the Court finds that the Government have not submitted any convincing arguments which would require the Court to distinguish it from its established case-law.

16 . The Court further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Article 6 § 1

17 . The Government argued that the relevant period started before 28 June 1994 , the day the Convention took effect with respect to Slovenia and lasted just over 7 years and 2 months . They claimed that the proceedings were of some complexity since the court needed to examine the written evidence, hear two witnesses and appoint a road-traffic expert. The first-instance court tried the case with all due diligence and in accordance with its prescribed duties. Admittedly, some delays in the proceedings occurred due to the reorganisation of the judicial system. The applicant ' s persistence to be heard by a court in Austria , due to her alleged deficient knowledge of the Slovene language, however, contributed substantially to the delays in the proceedings. Also her insisting that M.H. be heard before the court had somewhat prolonged the proceedings. Lastly, the Government claimed that since the proceedings concerned payment of material damage caused to the vehicle, they were of no exceptional importance for the applicant.

18 . The applicant contested these claims.

19 . I n determining the relevant period to be taken into consideration, the Court notes the proceedings at issue started before 28 June 1994 , the day the Convention took effect with respect to Slovenia . Given its jurisdiction ratione temporis , the Court can only consider the period which have elapsed since this day, although it will have regard to the stage reached in the proceedings in the domestic courts on that date (see, for instance, Belinger , cited above, and KudÅ‚a v. Poland [GC], no. 30210/96, § 123, ECHR 2000 ‑ XI). The period to be taken into consideration th u s began on 28 June 1994, the day when the Convention entered into force with respect to Slovenia , and ended on 5 September 2001 , the day the Kranj Local Court ' s judgment became final . It therefore lasted over seven years and two months before the first-instance court .

20 . 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).

21 . Although an opinion of a road-traffic expert was required to decide the case, the Court finds that it was neither procedurally nor factually of exceptional complexity. Also the fact that the applicant requested to be heard by a court in Austria, where she resided at the time, did not make the case procedurally complex, for the court decided not to oblige the applicant.

22 . As to the applicant ' s conduct, the Court does not find that she abused her procedural rights. The Court notes that on 19 January 1994 , at the first hearing, the domestic trial court decided to issue a letter of request to an Austrian court . In her submissions, t he applicant was apparently urging the court to comply with its own decision . B y doing so, she did not contribute to the length of proceedings even though her request was eventually proved unfounded. However, a period of just over one year, which it took the applicant to reply to the court ' s letter of 7 September 1997, can be attributable to the applicant. Likewise, a period of five weeks is attributable to the applicant, because one of the hearings was postponed at her request.

23 . On the contrary, there are several periods attributable to the courts. M ost notably, the period which elapsed before the court decided not to issue a letter of request to an Austrian court. The Court notes that n o procedural steps were made during this period .

24 . The Court reiterates that the Convention obliges member States to organise their judicial system in such a way as to ensure compliance with the obligations set forth in Article 6 § 1 ( see, among many other authorities, Süßmann v. Germany , judgment of 16 September 1996 , Reports 1996-IV, p. 1174, § 55 , and Riccardi Pizzati v. Italy [GC], no. 62361/00 , § 73 , 29 March 2006 ) . Hence, the fact that the reform of the judicial system occurred in 1994 and 1995 is not sufficient reason for the State to avoid the responsibility for the delays which occurred in the proceedings.

25 . It is true, however, that the amount of material damages at stake for the applicant was relatively small.

26 . In the Court ' s view, the overall length of the proceedings in the instant case was excessive and failed to meet the “reasonable-time” requirement. Having examined all the material submitted to it, and having regard to its case-law on the subject, 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

27 . 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). It notes that the objections and arguments put forward by the Government have been rejected in earlier cases (see Lukenda , cited above) and sees no reason to reach a different conclusion in the present case .

28 . 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 her case heard within a reasonable time, as set forth in Article 6 § 1.

II . APPLICATION OF ARTICLE 41 OF THE CONVENTION

29 . 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. Pecuniary d amage

30 . The applicant claimed 1 ,05 4 .03 euros (EUR) in respect of pecuniary damage . She claimed that this amount of damages is imputable to the other driver involved in the car accident, as was established by the court-appointed expert. However, by the time the court appointed the expert, the statute of limitations had passed and the applicant could no longer claim damages from the allegedly responsible individual.

31 . The Government argued that the claim for just satisfaction was not duly specified and substantiated by the documents in the case-file and must therefore be rejected ( Mitchell and Holloway v. the United Kingdom , no. 44808/98, § 69 , 17 December 2002 ) . In any event, the claim was exaggerated.

32 . The Court observes that the applicant, claiming to have suffered material damages due to a n excessive delay in proceedings can, under Article 26 of the Constitution and the provisions of the Code of Obligations of 2001 (see paragraphs 8 and 9 above ) , institute civil proceedings against the State seek ing compensation for these damages . The court has already found that this remedy is in principle effective ( see Lukenda , cited above, § 59 ).

33 . In the present case, the applicant did neither avail herself of the said remedy, nor did she allege that this remedy was ineffective in the circumstances of her case. The applicant thus failed to exhaust domestic remedies.

Accordingly, her claim for pecuniary damage must be declared inadmissible.

B. Non-pecuniary d amage

34 . The applicant claimed EUR 7,000 in respect of non-pecuniary damage .

35 . The Government co ntested the claim.

36 . The Court considers that the applicant must have sustained some non-pecuniary damage. Ruling on an equitable basis, it awards her EUR 4,800 under that head.

C . Costs and expenses

37 . The applicant also claimed approximately EUR 1,500 for the costs and expenses incurred before the Court.

38 . The Government argued that the claim was too high .

39 . According to the Court ' s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. T he Court notes that the applicant omitted to itemise particulars of her claims and provide the necessary supporting documents as required by Rule 60 of the Rules of Court.

The Court finds that the applicant must have incurred some costs and expenses in the proceedings. Accordingly, in the present case , regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the applicant the sum of EUR 8 00 for the proceedings before the Court.

D . Default interest

40 . The Court considers it appropriate that the default interest 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 UNANIMOUSLY

1. Declares the application admissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds that there has been a violation of Article 13 of the Convention;

4 . Holds

(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, EUR 4,800 ( four thousand eight hundred euros) in respect of non-pecuniary damage and EUR 800 ( eight hundred euros) in respect of costs and expenses, plus any tax that may be chargeable ;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount s at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

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

Done in English, and notified in writing on 9 November 2006 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Vincent Berger John Hedigan Registrar President