DISSENTING OPINION OF JUDGE MYJER

JOINED BY JUDGE CAFLISCH

Since the entry into force of the Convention the expression ‘ qui juge bien juge tard ’ may be at odds with the reasonable time provision of Article 6.

Indeed, as the saying goes ‘ justice is sweetest when it is freshest ’ , but in daily practice it sometimes takes a long time before the last judicial word is said in civil proceedings. This may be the case when the case is of particular complexity or when the parties concerned make use of every remedy available at the national level. It may also be (partly) due to the fact that the national authorities did not fulfil their obligation to ensure that the national judiciary consists of sufficient judges and judicial and administrative staff to cope with all cases in time or when the national judges do not perform their task with the required expediency.

In the Lukenda judgment of 6 October 2005 this Court found that the violation of the right to a trial within a reasonable time was – as far as Slovenia is concerned – a systemic problem which resulted from inadequate legislation and inefficiency in the administration of justice. Although this finding gives rise to the assumption that in Slovenian cases in which the proceedings have lasted many years such a systemic violation will have occurred, it will still be necessary to look at the specific circumstances of each case.

In this particular case – like in the more than 20 other Slovenian reasonable time cases which have been decided today – the majority found a violation of the reasonable time-requirement. This is one of the three cases in which I did not vote for a violation.

The case must have been of particular complexity, taking into account that two medical experts were appointed. During the proceedings the applicant lodged four preliminary written submissions and/or adduced evidence. Three hearings were held. It took the Ljubjana Court more than three years to deliver its judgment. The Ljubljana Higher Court managed to deliver a judgment within one year after the appeal of the applicant. Under these circumstances the overall time does not appear excessive.