CASE OF ROGELJ v. SLOVENIA
Violation of Article 6 - Right to a fair trial;No violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy
Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
5. The applicant was born in 1953 and lives in Ljubljana. 6. The applicant has been a self-employed designer since 1972. 7. On 8 April 1990 the applicant was injured in a car accident which happened on a business trip. It appears that the applicant has since then been on sick leave for most of the time. However, for certain periods the Health Insurance Institute (Zavod za zdravstveno zavarovanje – “the HII”) recognised his full or partial working capability. 8. On 10 January 1996 the Supreme Court (Vrhovno sodišče), in a non-public session, rejected the applicant’s claim concerning the HII’s decision granting the applicant a right to be absent from his work on a part-time basis until 25 February 1993. 9. On 22 April 2000 the applicant lodged a constitutional appeal. On 16 October 2001 the Constitutional Court (Ustavno sodišče) dismissed the appeal as being out of time. This decision was served on the applicant on 21 November 2001. 10. On 15 April 1994 the HII issued a decision finding that the applicant was fully capable of working. 11. On 30 June 1994 the applicant lodged a claim with the Ljubljana Court of Associated Labour (Sodišče združenega dela v Ljubljani) seeking annulment of the aforementioned decision, a recognition of his reduced working capability and entitlement to invalidity insurance benefit. 12. On 28 December 1994 the applicant gave a statement to a judge on duty urging the court to proceed with his case swiftly. 13. The (renamed) Ljubljana Labour and Social Court (Delovno in socialno sodišče v Ljubljani) held a hearing on 28 November 1996. 14. On 21 January 1997 the court received an expert’s opinion. 15. On 5 February 1997 the court held a hearing. 16. The court scheduled a new hearing for 26 March 1997 in order to examine an orthopaedist. The hearing was eventually cancelled since the expert had been absent owing to some professional commitments. 17. After holding a hearing on 17 June 1997, the court decided to deliver a written judgment rejecting the applicant’s claim. The judgment was served on the applicant on 4 July 1997. 18. The applicant appealed to the Ljubljana Higher Labour and Social Court (Višje delovno in socialno sodišče v Ljubljani). 19. On 23 July 1998 the Ljubljana Higher Labour and Social Court rejected the applicant’s appeal. The court tried several times to serve its decision on the applicant (on 26 October 1998, 10 November 1998 and on 10 December 1998) at the same address in Celje where it had served the decision of 17 June 1997. The decision was eventually served on 14 January 1999 through a colleague of the applicant at work. 20. Subsequently, the applicant lodged an appeal on points of law with the Supreme Court but it was rejected on 12 October 1999. The court again tried several times to serve this decision (on 10 and 30 November 1999, on 21 December 1999 and on 11 January 2000). The decision was served at the applicant’s three different addresses, two in Celje and one in Ljubljana. On 20 January 2000 the court process server left a notice in the applicant’s mailbox at his home in Ljubljana. The decision was eventually served on the applicant on the first-instance court’s premises on 23 February 2000. 21. On 22 April 2000 the applicant lodged a constitutional appeal which also concerned the decision of the Supreme Court of 10 January 1996 (see paragraph 8 above). 22. On 16 October 2001 the Constitutional Court dismissed the applicant’s appeal concerning the above proceedings as manifestly ill-founded. This decision was served on the applicant on 21 November 2001. 23. On 11 November 1996 the HII found the applicant incapable of working in the period between 7 June 1995 and 7 August 1995. 24. On 18 June 1998 the Ljubljana Labour and Social Court upheld the applicant’s claim against the HII finding that he had been incapable of working also between 30 November 1996 and 13 February 1997. 25. On 12 October 1999 the applicant challenged an HII decision of 26 July 1999 before the Ljubljana Labour and Social Court. 26. On 10 February 2000 the court held a hearing. 27. On 19 April 2000 the court received the opinion of the expert appointed in the case. 28. On 31 May 2000 the court held a hearing. The applicant, who received a notice inviting him to attend the hearing on 11 May 2000, did not appear at the hearing. The court nevertheless gave a ruling, quashed the disputed HII decision and upheld the applicant’s claim. It found that the applicant, who had been on sick leave with interruptions since 14 February 1998 and after 1 May 1999, was temporarily incapable of working also in the period between 9 April 1999 and 1 May 1999. This decision was served on the applicant on 6 July 2000. 29. The applicant appealed, claiming that the first-instance court should also have decided about his incapacity to work in the period after 25 May 1999. 30. On 7 February 2002 the Higher Labour and Social Court quashed the first-instance court’s judgment and remitted the case to the first-instance court for re-examination. 31. On 7 November 2002 the court held a hearing. 32. Subsequently, the court attempted on three occasions to serve notice inviting the applicant to the hearing scheduled for 23 January 2003 but was unsuccessful. The applicant, however, appeared at the hearing together with a substitute of his representative. After the hearing, the court gave a ruling and upheld the applicant’s claim in part. This decision was served on the applicant’s representative on 19 February 2003. 33. On 17 April 2003 the Higher Labour and Social Court partly upheld the applicant’s appeal and remitted the respective part for re-examination. 34. The hearing scheduled for 21 August 2003 was cancelled owing to the fact that the applicant’s representative had rescinded his power of attorney. Consequently, the applicant had requested free legal aid, which had not been granted at the time the hearing was held. 35. On 28 October 2003 the applicant was granted free legal aid and subsequently assigned a lawyer. 36. The next hearing was scheduled for 11 March 2004. The court again tried unsuccessfully to serve notice of the hearing on the applicant. The applicant’s representative eventually received the notice on 3 February 2004. 37. Since none of the parties appeared at the hearing of 11 March 2004 despite being invited, the court decided to stay the proceedings (mirovanje postopka). This decision was served on the applicant’s representative on 12 March 2004. 38. On 14 July 2004, given that none of the parties requested the court to resume the proceedings within four months from the date the proceedings were stayed, the court decided to terminate the proceedings on the basis of the assumption that the applicant had withdrawn his claim. This decision was served on the applicant’s representative on 16 July 2004. 39. The applicant appealed. On 24 September 2004 the Higher Labour and Social Court rejected the applicant’s appeal. This decision was served on the applicant’s representative on 5 October 2004. 40. On 10 January 2005 the applicant lodged a motion at the Higher Labour and Social Court, claiming that he had learned that the proceedings had been terminated only at the end of December 2004. The court responded that the decision had been served on his representative in accordance with the civil procedure rules. 41. On 11 March 2005 the applicant examined the file at the Higher Labour and Social Court. 42. The Act on the Protection of the Right to a Trial without Undue Delay (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Journal, No. 49/2006) has been implemented since 1 January 2007. Under its sections 1 and 2, the right to a trial within a reasonable time is guaranteed for a party to court proceedings, a participant under the Act governing non-contentious proceedings and an injured party in criminal proceedings. 43. Section 25 lays down the following transitional rules in relation to applications already pending before the Court: “(1) In cases where a violation of the right to a trial without undue delay has already ceased and the party had lodged 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 that Office. The State Attorney’s Office shall decide on the proposal as soon as possible and within four months at the latest..... (2) If the proposal for settlement referred to in the first paragraph of this section is not acceded to or the State Attorney’s Office and the party fail to negotiate an agreement within four months of the date on which the party submitted its proposal, the party may bring an action before the competent court under this Act. The party may bring an action within six months of receiving the State Attorney’s Office reply that the party’s proposal referred to in the previous paragraph was not acceded to, or after the expiry of the period fixed in the previous paragraph for the State Attorney’s Office to decide to proceed with a settlement. Irrespective of the type or amount of the claim, the provisions of the Civil Procedure Act concerning small claims shall apply in proceedings before a court.” 44. Further to section 14 of the Labour and Social Courts Act (Zakon o delovnih in socialnih sodiščih, Official Gazette of the Republic of Slovenia no. 19/1994), as in force at the material time, the provisions governing civil procedure were to be applied to proceedings before the Labour and Social Courts. 45. According to section 209 of the Civil Procedure Act (Zakon o pravdnem postopku, Official Gazette of the Republic of Slovenia no. 26/1999), the court should stay the proceedings if, inter alia, none of the parties have appeared at a hearing. A party to proceedings can request the court to resume the proceedings after three months have passed from the date the proceedings were stayed and no later than four months from that date (section 210). Section 210 further provides that in the event that none of the parties requests the court to resume the proceedings, it will be assumed that the claimant has withdrawn his claim and the proceedings will be terminated.