CASE OF VARACHA v. SLOVENIA
Preliminary objection dismissed (non-exhaustion);Violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial claim;Costs and expenses partial award - Convention proceedings
David Thór Björgvinsson;John Hedigan
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., the 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, and 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 the court found those reasons insufficient, 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 judgment became final on 5 September 2001. “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. ...” 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.