CASE OF ROBERT LESJAK v. SLOVENIA
Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - award
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. On 8 April 1995 the applicant was injured in a car accident. The perpetrator of the accident, I.R., had taken out insurance with the insurance company A. 7. On 18 October 1999 the applicant instituted civil proceedings against I.R. and the insurance company A. in the Celje District Court, seeking damages in the amount of 3,688,433 Slovenian tolars (SIT) (approximately 15,370 euros) (EUR) for the injuries sustained. 8. Between 29 November 2001 and 12 May 2006 the applicant lodged several written submissions and adduced evidence. 9. Between 15 December 2003 and 4 September 2006 the court held eight hearings, one of which was conducted at the site of the accident. It does not appear that any of the hearings were adjourned due to the applicant’s fault. 10. During the proceedings, the court also appointed two experts and requested an additional opinion from one of them. 11. After the last hearing in the case, the court delivered an interim judgment (vmesna sodba) determining the responsibility for the damage, which was served on the applicant on 25 September 2006. 12. On 9 October 2006 the applicant appealed to the Celje Higher Court. I.R. and the insurance company A also appealed. 13. On 9 May 2007 the Celje Higher Court allowed the applicant’s appeal in part and changed the first-instance court’s interim judgment. It found I.R. and the insurance company A responsible for 70% of the damage suffered due to the accident. 14. The judgment was served on the applicant on 18 May 2007. 15. On 13 June 2007 the insurance company A lodged an appeal on points of law with the Supreme Court. These proceedings are still pending. 16. On 2 March 2007 the applicant lodged a supervisory appeal with the Celje District Court. In this supervisory appeal the applicant explained that the proceedings had started on 18 October 1999 and were still pending. As a consequence, his right to a hearing within a reasonable time had been violated. He requested that the proceedings be expedited and the decision be delivered immediately. 17. On 23 March 2007, referring to sections 5(1) and 6(4) of the Act on the Protection of the Right to a Trial without Undue Delay (“the 2006 Act”), the President of the Celje District Court replied to the supervisory appeal by explaining that the case file had been transferred to the Celje Higher Court on 20 March 2007. 18. The Act on the Protection of the Right to a Hearing without Undue Delay (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Gazette no. 49/2006- “the 2006 Act”) was passed by the Slovenian Parliament on 26 April 2006 and became operational on 1 January 2007. 19. The 2006 Act provides for remedies to expedite pending proceedings (a supervisory appeal and a motion for a deadline). In addition to these acceleratory remedies, the 2006 Act also provides the possibility to obtain redress through a compensatory remedy, namely by bringing a claim for just satisfaction. 20. As regards the acceleratory remedies, a claimant may, during the first- and second-instance proceedings, that is the proceedings before the regular courts, use a supervisory appeal if he or she considers that the court is unduly protracting the decision-making. If the president of the court dismisses the supervisory appeal or, inter alia, fails to respond to the claimant within two months, he or she can lodge a motion for a deadline with the court hearing the case. The motion for a deadline is dealt with by the president of the higher court. He or she shall decide on the motion for a deadline within fifteen days of receiving it. 21. As regards the present case, the following provisions of the 2006 Act are relevant: “(1) If the supervisory appeal is manifestly unfounded having regard to the timetable for resolving the case concerned by the supervisory appeal, the president of the court shall dismiss the appeal by a ruling. (2) If the supervisory appeal does not contain all the requisite elements referred to in section 5(2) of this Act, the president of the court shall dismiss it by a ruling. No appeal shall lie against that ruling. (3) If no ruling as provided for in paragraphs 1 or 2 of this section is given, the president of the court shall, as part of his judicial management powers under the Judicature Act, immediately request the .... judge or president of a court panel (‘the judge’) to whom the case has been assigned for resolution to submit a report indicating the reasons for the duration of the proceedings not later than fifteen days after receiving the request of the president of the court or after obtaining the file, if necessary for drawing up the report. The report shall include a declaration in respect of the criteria referred to in section 4 of this Act and an opinion on the time-limit within which the case may be resolved. The president of the court may also require the judge to submit the case file if he considers that, in the light of the allegations of the party indicated in the supervisory appeal, its examination is necessary. (4) If the judge notifies the president of the court in writing that all relevant procedural measures will be performed or a decision issued within a time-limit not exceeding four months following the receipt of the supervisory appeal, the president of the court shall inform the party thereof and thus conclude the consideration of the supervisory appeal. (5) If the president of the court establishes that in view of the criteria referred to in section 4 of this Act the court is not unduly protracting the decision-making in the case, he shall dismiss the supervisory appeal by a ruling. frame for their performance, which shall be no less than fifteen days and no longer than six months, and the appropriate deadline for the judge to report on the measures performed. (7) If the president of the court establishes that the undue delay in decision-making in the case is attributable to an excessive workload or an extended absence of the judge, he may order that the case be reassigned. He may also propose that an additional judge be assigned to the court or order other measures in accordance with the Judicial Service Act. ... “(1) If, under section 6(1) or (5) of this Act, the president of the court dismisses the supervisory appeal or fails to respond to the party within two months or fails to send the notification referred to in section 6(4) of this Act within the said time-limit or if appropriate procedural acts have not been performed within the time-limit set in the notification or ruling of the president of the court, the party may lodge a motion for a deadline on the grounds stated in section 5(1) of this Act with the court hearing the case. ... (3) The party may lodge an motion for a deadline within fifteen days of receiving the ruling or after expiry of the time-limits provided for in paragraph 1 of this section.” 22. As to the claim for just satisfaction, sections 15, 19 and 20 of the 2006 Act provide that for the party to be able to lodge a claim for just satisfaction two cumulative conditions must be satisfied. Firstly, during the first- and/or second-instance proceedings the applicant must have successfully availed himself of a supervisory appeal or have lodged a motion for a deadline, regardless of its outcome. In this connection section 15 provides, in so far as relevant: “(1) If the supervisory appeal lodged by the party has been upheld or a motion for a deadline has been lodged, the party may claim just satisfaction under the present Act. ...” 23. Secondly, the proceedings must have been “finally resolved” (pravnomočno končan postopek). The final resolution of the case refers in principle to the final decision against which no ordinary appeal lies. This would normally be the first, or if an appeal has been lodged, the second-instance court’s decision. 24. As regards proceedings before the Supreme Court, a claimant can use a supervisory appeal and a motion for a deadline with an aim to accelerate the proceedings. It would appear from the text of the 2006 Act that both are dealt with by the president of the Supreme Court. A claim for just satisfaction is not available in respect of the length of Supreme Court proceedings. The relevant part of the 2006 Act reads as follows: “(1) If a party considers that the court is unduly protracting the decision-making, he or she may lodge a supervisory appeal in writing before the court hearing the case; the decision thereon is taken by the .... president of the court (‘the president of the court’). ... ... (3) The president of the Supreme Court of the Republic of Slovenia shall have the competence to decide on the motion for a deadline concerning cases heard by the Supreme Court of the Republic of Slovenia. (4) Other judges may be assigned by the annual schedule of allocation to act in place of or together with the presidents of courts referred to in previous paragraphs for decision-making on motions for a deadline.” 25. For a more detailed presentation of the 2006 Act, see Žunič v. Slovenia, (dec.) no. 24342/04, 18 October 2007. 26. As regards possible outcome of Supreme Court proceedings, the Civil Procedure Act (Zakon o pravdnem postopku, Official Gazette no. 26/1999, in force since 14 July 1999) provides that, depending on the circumstances, the Supreme Court when upholding an appeal on points of law may remit the case for re-examination or vary the lower court’s judgment.