THIRD SECTION

CASE OF DEŽ ELAK v. SLOVENIA

( Application no. 1438/02 )

JUDGMENT

STRASBOURG

6 April 2006

FINAL

06/07/2006

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 Dež elak v. Slovenia ,

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

Mr J. Hedigan , President , Mr B.M. Zupančič , Mrs M. Tsatsa-Nikolovska , Mr V. Zagrebelsky , Mr E. Myjer , Mr D.T. Björgvinsson , Mrs I. Ziemele, judges , and Mr V. Berger , Section Registrar ,

Having deliberated in private on 16 March 2006 ,

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

PROCEDURE

1 . The case originated in an application (no. 1438/02) 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, Mr Milan Dež elak (“the applicant”), on 7 December 2001 .

2 . The applicant was represented by the Verstovšek lawyers . 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 he was a party was excessive. In substance, he 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 11 June 2004 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

5 . The applicant was born in 1946 and lives in Grobelno .

6 . On 17 January 1992 the applicant was injured in an accident at work.

7 . On 28 October 1992 the applicant instituted civil proceedings against his employer SŽ in the Celje Court of Associated Labour ( Sodišče združenega dela Celje ) seeking damages in the amount of 3,300, 000 tolars (approximately 13,750 euros) for the injuries sustained in the accident.

On 28 June 1994 the Convention entered into force in respect of Slovenia .

Between 27 October 1994 and 29 September 1995 the applicant lodged six preliminary written submissions and/or adduced evidence.

On 22 February 1995 he made a request that a date be set for a hearing.

Of the two hearings held on 3 April 1995 and 9 October 1995 , none was adjourned a t the request of the applicant.

On 18 April 1995 the court appointed a medical expert.

At the last hearing , the renamed Celje Labour Court ( Delovno sodišče v Celju ) decided to deliver a written judgment. The judgment, upholding the applicant ’ s claim in part, was served on the applicant on 27 October 1995 .

8 . On 2 November 1995 the applicant appealed to the Higher Labour and Social Court ( Višje delovno in socialno sodišče ). SŽ cross-appealed.

On 18 September 1997 the court quashed the first instance court ’ s judgement and remanded the case to the first-instance court for re-examination. The decision was served on the applicant on 26 November 1997 .

9 . Between 5 February 1997 and 4 February 1999 the applicant lodged five preliminary written submissions and /or adduced evidences

On 6 May 1999 he mad e a request that a date be set for a hearing.

Of the two hearings held on 14 May 1998 and 31 May 1999 , none was adjourned a t the request of the applicant.

During the proceedings , the court again appointed a medical expert .

The judgment of 31 May 1999 , upholding the applicant ’ s claim in part , was served on the applicant on 28 June 1999 .

10 . On 6 July 1999 the applicant and SŽ appealed to the Higher Labour and Social Court .

On 30 March 2000 the court upheld both appeals and remitted the case to the first-instance court for re-examination. The decision was served on the applicant on 4 May 2000 .

11 . In the re-examination proceedings, between 16 June 2000 and 30 April 2002 , the applicant lodged six preliminary written submis sions and/or adduced evidences.

On 23 November 2001 he made a request that a date be set for a hearing.

Of the three hearings held between 4 September 2000 and 27 June 2002 , none was adjourned at the request of the applicant. However, the hearings scheduled for 4 December 2000 and 19 February 2001 were called off on the request of the applicant.

During the proceedings , the court appointed a traffic expert, acquired two additional expert opinions and carried out a site survey.

The judgment of 27 June 2002 , upholding the applicant ’ s claim in part , was served on the applicant on 11 July 2002 .

12 . On 15 July 2002 the applicant appealed to the Higher Labour and Social Court . SŽ cross-appealed .

On 4 December 2003 the court upheld the applicant ’ s appeal and partly upheld the SŽ ’ s appeal. The case was in the respective part remitted to the Celje Labour Court for re-examination. The judgment was served on the applicant on 17 December 2003 .

13 . Between 5 January and 10 September 2004 the applicant lodged four p reliminary written submissions.

On 5 January 2004 he also requested th at a date be set for a hearing.

Of the two hearings held on 5 April and 6 December 2004 , none was adjourned a t the request of the applicant.

The court appointed a medical expert again.

At the last hearing , the court decided to deliver a written judgment. The judgment, upholding the applicant ’ s claim in part, was served on the applicant on 6 January 2005 .

14 . On 12 January 2005 the applicant appealed to the Higher Labour and Social Court .

On 10 March 2005 the court dismissed the applicant ’ s appeal.

The judgment was served on the applicant on 6 April 2005 .

15 . On 20 April 2005 the applicant lodged an appeal on points of law with the Supreme Court ( Vrhovno sodišče ).

The proceedings are still pending.

THE LAW

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

16 . The applicant complained about the excessive length of the proceedings . He 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... ”

17 . 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

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

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

20 . The Court notes that the present application is similar to the cases of Belinger and Lukenda ( 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.

21 . 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.

22 . 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

23 . The period to be taken into consideration began on 28 June 1994 , the day when the Convention entered into force with respect to Slovenia , and has not yet ended. The relevant period has therefore lasted more than eleven year s and eight month s for three levels of jurisdiction, but due to remittals the case has been considered on nine instances.

24 . 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 ) .

25 . The C ourt notes that the delay in the present case was caused mainly by the re-examination of the case. Although the Court is not in a position to analyse the juridical quality of the case-law of the domestic courts, it considers that, since the remittal of cases for re-examination is usually ordered as a result of errors committed by lower courts, the repetition of such orders within one set of proceedings may disclose a serious deficiency in the judicial system (see, e.g., Wierciszewska v. Poland , no. 41431/98, § 46, 25 November 2003). The Government have failed to provide any explanation that would lead the Court to reach a different conclusion.

26 . 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 his right to have his 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. Damage

30 . The applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage.

31 . The Government co ntested the claim.

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

B. Costs and expenses

33 . The applicant also claimed approximately EUR 2,040 for the costs and expenses incurred before the Court.

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

35 . 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. The Court also notes that the applicant ’ s lawyers, who also represented the applicant in Lukenda ( cited above), lodged nearly 400 applicati ons which, apart from the facts , are essentially the same as this one. 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 1,000 for the proceedings before the Court.

C. Default interest

36 . 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 1,000 ( one thousand 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 peri od plus three percentage points;

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

Done in English, and notified in writing on 6 April 2006 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Vincent Berger John Hedigan Registrar President