CASE OF LUKENDA v. SLOVENIA
Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
John Hedigan
5. The applicant was born in 1952 and lives in Slovenia. 6. On 6 January 1994 the applicant was injured at work in a lignite mine. Since then, he has been disabled and in receipt of disability benefits. His employer had taken out accident insurance for him with an insurance company, T. (“ZT”). His disability was assessed at 13%. In the years 1994, 1995 and 1996 ZT paid partial disability benefits. 7. On 30 December 1998 the applicant instituted civil proceedings in the Celje Local Court (Okrajno sodišče v Celju) against ZT claiming a 7% increase in his disability benefits on the basis of an expert medical opinion. He also sought an exemption from court fees. On 26 August 1999 the applicant lodged pleadings and additional evidence and requested the court to assign an independent medical expert to determine the extent of his disability. He submitted additional documents and pleadings on 13 October 1999, 16 November 2000, 27 February, 9 and 17 April and 30 May 2002. On 7 November 2000 a hearing was held to consider the applicant's request for the appointment of a medical expert. Although the request was granted, the appointment was not made. On 23 November 2000 the applicant submitted documents and requested the court to issue the order appointing the medical expert. On 28 November 2000 the court appointed a medical expert to determine the extent of the applicant's disability. He submitted his report on 26 April 2001. On 25 May 2001 the applicant filed pleadings and increased his claim by 2.5%. On 10 July 2001 the applicant filed pleadings and requested that an additional opinion be sought from the appointed expert. On 16 October 2001 a hearing was held and the court decided that additional clarifications were required from the expert. On 23 November 2001 the court reappointed the same expert with instructions to submit an additional opinion. On 11 February 2002 the expert submitted an additional opinion, which was served on the parties. On 9 April and 30 May 2002 the applicant made requests for a hearing. On 25 September 2002 the court held a hearing and decided to deliver a written judgment. On 30 December 2002 the applicant's lawyers received the judgment, which upheld the applicant's claim in part. 8. On 31 December 2002 the applicant appealed. ZT cross-appealed. On 19 February 2004 the Celje Higher Court (Višje sodišče v Celju) allowed the applicant's appeal in part. It increased the level of his disability benefits and awarded the applicant costs and expenses. The decision became final the same day. On 8 April 2004 the judgment was served on the applicant's lawyers. 9. The relevant provisions of the Constitution of the Republic of Slovenia (Ustava Republike Slovenije) read as follows: “Everyone has the right to have any decision regarding his rights, duties and any charges brought against him made without undue delay by an independent, impartial court constituted by law. ...” “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. ...” “A court with jurisdiction to review administrative decisions shall [have jurisdiction to] determine the legality of final individual decisions by State or local authorities or holders of public office concerning the rights or obligations or legal entitlement of individuals and organisations, if no other legal protection is specifically provided. If no other legal protection is provided, the court with jurisdiction to review administrative decisions shall also [have jurisdiction to] determine the legality of individual acts and decisions which encroach upon the constitutional rights of the individual.” “The Constitutional Court shall hear: ... constitutional appeals in which specific acts are alleged to have infringed a human right or fundamental freedom; ... Unless otherwise provided by law, the Constitutional Court shall hear a constitutional appeal only if legal remedies have been exhausted. The Constitutional Court shall decide whether a constitutional appeal is admissible for adjudication on the basis of statutory criteria and procedures.” 10. The relevant provisions of the Constitutional Court Act (Zakon o Ustavnem sodišču) read as follows: “The Constitutional Court is the highest body of judicial authority for the protection of constitutionality, legality, human rights and basic freedoms ... Decisions of the Constitutional Court are legally binding.” “Anyone who believes that his or her human rights and basic freedoms have been infringed by a particular act of a State body, local body or statutory authority may lodge a constitutional appeal with the Constitutional Court, subject to compliance with the conditions laid down by this Act. ...” “A constitutional appeal may be lodged only after all legal remedies have been exhausted. Before all special legal remedies have been exhausted, the Constitutional Court may exceptionally hear a constitutional appeal if a violation is probable and the appellant will suffer irreparable consequences as a result of a particular act.” 11. In a decision of 7 November 1996 (no. Up 277/96), the Constitutional Court (Ustavno sodišče) ruled that constitutional appeals under Article 160 of the Slovenian Constitution were admissible in length of proceedings cases where the proceedings were still pending. However, it further stated that, in order to ensure the right to due process of law in the Slovenian legal system, the only proper judicial protection available was through an action in the administrative courts. A constitutional appeal was, as a rule, admissible only after recourse to that legal remedy. 12. In a decision of 7 December 2000 (no. Up 73/97), the Constitutional Court ruled that, once the court proceedings had been concluded, an individual could no longer bring an action in the administrative courts complaining about the length of proceedings. Therefore, since there was no longer any violation to be remedied, it was no longer possible to lodge a constitutional appeal. 13. In a decision of 17 December 2003 (no. Up 85/03-12), the Constitutional Court held that where, because the substantive proceedings had ended, an action to complain of the length of proceedings could no longer be brought in the administrative courts, it was still open to the alleged victim to seek compensation in civil proceedings. 14. The Administrative Disputes Act 1997 (Zakon o upravnem sporu) provides for the protection of the constitutional right to a trial within a reasonable time through administrative proceedings in the administrative court and, on appeal, in the Supreme Court (Vrhovno sodišče). Under section 2(1) and (2) the court has a broad discretion to adapt its decision to the nature of the violated constitutional right, to order adequate redress, and to decide the applicant's claim for damages. Under section 62 it is possible to seek a declaration that there has been a violation of a right guaranteed by Article 23 of the Constitution and compensation for any loss. In addition, under section 69, a temporary injunction may be sought to prevent serious harm or to guard against an imminent threat of violence. 15. In case no. U 836/98, the Administrative Court (Upravno sodišče) found on 7 March 2000 that the right to a trial within a reasonable time had been violated in a case which had been pending before the Labour and Social Court for twenty-three months. However, on 18 December 2002 the Supreme Court quashed the judgment on appeal, as the proceedings had terminated by the time of the appeal. On 17 December 2003 the Constitutional Court dismissed the constitutional appeal (no. Up 85/03-12) because the proceedings in question had ended and the alleged victim could seek compensation in civil proceedings. 16. Similarly, in case no. U 148/2002-19, the Administrative Court rejected on 21 January 2003 a complaint concerning the length of the proceedings because the proceedings in question had ended shortly after the complaint had been lodged. On 28 May 2003 the Supreme Court upheld the judgment on appeal. 17. In case no. U 148/2002-19, the Administrative Court dismissed on 21 January 2003 a claim alleging a violation of the right to a trial within a reasonable time that had been lodged on 18 July 2002. This decision was upheld on appeal on 28 May 2003. The proceedings before two levels of jurisdiction had lasted ten months and ten days. 18. In case no. U 459/2003-23, the Administrative Court held on 7 December 2004, in proceedings that had started on 8 December 2003, that there had been a violation of the right to due process. The proceedings had lasted less than a year before one level of jurisdiction. 19. If a court is responsible for undue delay in the proceedings and an individual has sustained 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. However, the Code does not provide specifically for compensation for non-pecuniary damage in such cases. 20. In a judgment of 22 January 2001 of the Ljubljana District Court (Okrožno sodišče v Ljubljani), the damages awarded amounted to nearly 6,700 euros (EUR), but were reduced on appeal on 16 December 2002 by the Ljubljana Higher Court to less than EUR 850. 21. In a judgment of 18 April 2001 of the Ljubljana District Court, which was upheld on appeal on 12 February 2003 by the Ljubljana Higher Court, a sum of approximately EUR 3,350 was awarded. 22. Section 3(4) of the Judicature Act (Zakon o sodiščih) provides that judges shall determine rights and obligations and criminal charges independently and impartially and without undue delay. 23. Section 38 of the Act provides that, when determining the number of judges to be appointed to a specific court, the Judicial Council (sodni svet) shall have regard to the criteria laid down by the Minister of Justice, the average number of cases dealt with by the court in the preceding three years, any anticipated changes that may affect that number, and the average number of new actions brought in the court in the preceding three years. Under the Act, the Minister of Justice is empowered to vary the criteria in the light of the complexity of the cases and changes in the manner in which they are being processed. 24. Section 72 provides that in the event of a delay in the proceedings any party may lodge a request for supervision (nadzorstvena pritožba) with the president of the court. The president of the court may request the presiding judge to report on progress in the proceedings, and is required to indicate in writing to the presiding judge any irregularities he finds. He may put the case on the priority list or set deadlines for procedural measures. If the delay has been caused by a heavy caseload, he may order the case concerned or other cases to be transferred to another judge. He may also propose measures under the provisions of the Judicial Service Act. 25. If the request for supervision is lodged with the Ministry of Justice or the president of a higher court, they will refer it to the president of the relevant court and may request a report on the measures undertaken to expedite the proceedings. 26. The Minister of Justice or the Judicial Council may request the president of the court to submit a report on all requests for supervision lodged within a certain period and the measures undertaken to resolve the issues. 27. In accordance with section 73, the president of a higher court may, of his own motion or at the request of the Minister of Justice, a disciplinary prosecutor or a disciplinary court, request an examination of the functioning of the court and submit the findings to the Ministry. 28. As part of a package of measures to guarantee the effectiveness of the Convention machinery, the Committee of Ministers of the Council of Europe adopted a resolution on 12 May 2004 (Res(2004)3) on judgments revealing an underlying systemic problem. After emphasising the interest in helping the State concerned to identify the underlying problems and the necessary execution measures (paragraph 7 of the preamble), it invited the Court “to identify in its judgments finding a violation of the Convention what it considers to be an underlying systemic problem and the source of that problem, in particular when it is likely to give rise to numerous applications, so as to assist States in finding the appropriate solution and the Committee of Ministers in supervising the execution of judgments” (paragraph I of the resolution). This resolution has to be seen in the context of the growth in the Court's caseload, particularly as a result of series of cases deriving from the same structural or systemic cause.