NOVAK v. SLOVENIA
Inadmissible
Carlo Ranzoni;Ganna Yudkivska;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani
1. The applicant, Ms Vida Novak, is a Slovenian national, who was born in 1951 and lives in Maribor. She is represented before the Court by Mr E. Kralj, a lawyer practising in Maribor. 2. The Slovenian Government (“the Government”) were represented by their Agents, Ms T. Mihelič Žitko and J. Morela. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 23 February 1992 inheritance proceedings in respect of the property of the applicant’s late mother were instituted before the Maribor Local Court. 5. The applicant claimed that because of gifts made by her late mother she would be excessively deprived of her statutory share of the inheritance. As a result, the court, in 2001, stayed the inheritance proceedings and advised the applicant to pursue her claim in contentious proceedings. 6. On 17 December 2001 the applicant instituted contentious proceedings before the Maribor District Court. 7. By May 2005 the applicant had made five requests for a hearing to be scheduled. 8. On 23 May 2005 the Maribor District Court adjourned the proceedings. Both parties appealed. 9. On 5 July 2005 the Maribor Higher Court quashed the decision to adjourn the proceedings. 10. Between August 2005 and April 2006 the applicant made six requests for the District Court to schedule a hearing. 11. On 25 August 2006 she lodged a supervisory appeal. 12. On 16 October 2006 the president of the Maribor District Court ordered that the case be given priority. 13. The applicant made four further requests for a hearing. 14. On 19 June 2007 the court held a hearing and dismissed the applicant’s claim. The applicant appealed. 15. On 2 April 2008 the Maribor Higher Court allowed the appeal and remitted the case back to the District Court. 16. On 22 September 2008 the applicant lodged a supervisory appeal. 17. On 13 October 2008 the applicant was informed in response to her supervisory appeal that a hearing would be held within a period of less than four months. 18. On 4 November 2008 the Maribor District Court held a hearing and concluded the proceedings. Its decision was served on the applicant on 4 May 2009. She appealed on 8 May 2009. 19. On 26 August 2009 the Maribor Higher Court upheld the applicant’s appeal in part and modified the first-instance court’s decision accordingly. The applicant lodged an appeal on points of law. 20. On 5 May 2011 the Supreme Court issued a judgment rejecting her appeal on points of law. 21. On 26 August 2011 the Supreme Court, at the request of the applicant, issued an additional decision in respect of the case, which was served on the applicant on 19 October 2011. 22. On 9 December 2009 the applicant signed an agreement with her lawyer, agreeing to pay his fees for the representation in the compensation proceedings according to the Lawyer Fees Schedule (odvetniška tarifa, scheme setting out the official fees for lawyers’ legal services), which was based on the Lawyer Act (Zakon o odvetništvu, see paragraph 37 below). They later agreed that the legal fees and other costs could be settled once all the remedies had been exhausted. 23. On 10 December 2009 the applicant lodged a claim for compensation for non-pecuniary damage sustained as a consequence of undue length of the contentious proceedings (see paragraphs 6-21 above) with the State Attorney’s Office in accordance with the Protection of the Right to a Trial without Undue Delay Act (“the 2006 Act”). She had been offered 450 euros (EUR) by way of compensation, which she rejected as too low. 24. On 18 March 2010 the applicant instituted proceedings against the State seeking EUR 2,300 for non-pecuniary damage. When lodging the claim the applicant paid court fees in the amount of EUR 165. The State was represented by the State Attorney’s Office in Celje. The latter lodged a reply to the applicant’s claim on 30 March 2010. 25. On 14 April 2010 the applicant submitted her pleadings, disputing the arguments of the State Attorney’s Office. On 23 April 2010 the State Attorney’s Office submitted its pleadings. 26. On 11 May 2010 the Celje District Court held a public hearing. After the hearing it upheld the applicant’s claim in part. It noted that the parties had not significantly contributed to the length of the contentious proceedings, that the case was a rather simple one, and that the issue had certainly not been of minor importance to the applicant. The court referred to the compensation, which it considered to be typically awarded to the applicants by the Court in cases concerning similar length and involving a similar number of levels of jurisdiction. The court awarded the applicant EUR 450, with default interest, in compensation for non-pecuniary damage. 27. On 17 June 2010 the applicant lodged an appeal, paying court fees amounting to EUR 150. 28. On 2 February 2011 the Celje Higher Court partially upheld the applicant’s appeal and increased damages to EUR 650. The Higher Court found that the first-instance court had relied on case-law which was not analogous enough to the applicant’s case to be used as a criterion for an appropriate compensation. Noting that the allowed compensation under the 2006 Act ranged from EUR 300 to EUR 5,000, it considered that the applicant should have been awarded EUR 650. As regards the costs, it decided that the applicant was entitled to EUR 65 for legal representation in the first-instance proceedings and nothing with respect to legal fees for the representation at the appeal stage as the law did not provide for it (see paragraph 37 below). 29. On 30 May 2011 the applicant lodged a constitutional complaint and an application for constitutional review of the provisions of the Lawyer Fees Act (Zakon o odvetniški tarifi) in parts concerning the fees for legal representation in the proceedings under the 2006 Act. She complained about the length of the contentious proceedings and the courts’ handling of her claim for compensation for undue delays. She moreover argued that the extreme restrictions regarding the reimbursable legal fees in the proceedings under the 2006 Act, which did not apply to regular civil proceedings, were contrary to the equal protection of rights and the right to judicial protection enshrined in the Constitution. The proceedings under the 2006 Act were complex enough to require legal representation as several steps, such as using of acceleratory remedies and settlement procedure, had to be conducted before a compensation claim could be lodged and there were strict procedural rules as regards the conduct of the compensation proceedings. She also pointed out that the contested provisions of the Lawyer Fees Act had essentially affected the plaintiffs, who had suffered damage due to a breach of the reasonable time requirement. For the representation in the 2006 Act proceedings, the plaintiffs often paid legal fees based on an agreement, which meant that most of it might remain unreimbursed. 30. On 6 June 2012 the Constitutional Court rejected both the applicant’s constitutional complaint and the application for review of constitutionality. It rejected the constitutional complaint as inadmissible referring to section 55 (a) of the Constitutional Court Act (see paragraph 39 below). As regards the application for review of constitutionality, the Constitutional Court noted that the challenged law was no longer in force, and that in any event the outcome of the proceedings could not benefit the applicant, as her constitutional complaint had been rejected. 31. The applicant indicated to the Court that she was due to pay her lawyer EUR 1,093 with respect to court fees relating to the compensation proceedings. 32. After the Maribor Higher Court had issued its decision in the contentious proceedings (see paragraph 19 above), the Maribor Local Court continued with the examination of the case in the inheritance proceedings and on 1 April 2011 issued a decision on the distribution of the inheritance. Further to an appeal, the Maribor Higher Court issued a decision on 26 October 2011 (served on the applicant on 4 November 2011). 33. On 7 March 2012 the applicant, who had availed herself of the remedies provided for under the 2006 Act, reached an out-of-court settlement with the State Attorney’s Office after being offered the maximum amount of compensation allowed under the 2006 Act, namely EUR 5,000, as just satisfaction for the violation of her right to a trial without undue delay in the inheritance proceedings, as well as EUR 360 for the costs of legal representation. 34. For a detailed presentation of the 2006 Act, see Žunič v. Slovenia (dec.), no. 24342/04, §§ 16-26, 18 October 2007, and Žurej v. Slovenia (dec.), no. 10386/03, §§ 14-15, 16 March 2010. 35. As regards the reimbursement of costs and fees in the court proceedings, section 154 of the Civil Procedure Act (Official Gazette no. 26/99 with relevant amendments) provides that the losing party to the proceedings should bear the costs of the successful party. However, if the claim was upheld only in part, the court may order that the amount of the costs to be reimbursed by the defendant should correspond to the proportion of the upheld part of the claim. According to section 155 of the same Act only necessary costs were reimbursable. 36. In the compensation proceedings under the 2006 Act the parties have to pay the court fees which apply in ordinary civil proceedings under the Court Fees Act. The amount of the court fees depends on the monetary value of the claim. 37. The fees reimbursable to lawyers for representation of their clients were until 2009 specified in the Lawyer Fees Schedule, based on the Lawyer Act (Official Gazette no. 18/93 with relevant amendments), applicable from 12 July 2003. On 1 January 2009 the Lawyer Fees Act (Official Gazette no. 67/2008) entered into force. It specified, inter alia, the fees reimbursable to lawyers for representation of their clients in proceedings under the 2006 Act. The Lawyer Fees Act was the act applicable at the time of the applicant’s compensation proceedings. The fees for representation in the proceedings under the 2006 Act was set at EUR 10 for lodging a supervisory appeal, a motion for a deadline or a claim for settlement with the State Attorney’s Office. In court proceedings the award for representation was set at 10% of the compensation awarded by the court, but could not exceed EUR 300. There was no additional fee for representation in the appeal proceedings. 38. The Lawyer Fees Act was repealed on 9 May 2009 by section 19 of the Amendment to the Lawyer Act; however, the fees laid down in the Lawyer Fees Act were still applicable until the adoption of the new Lawyer Fees Schedule. According to the new Lawyer Fees Schedule, based on the Lawyer Act and applicable from 10 January 2015, the fees for lodging an application for a supervisory appeal or a motion for a deadline was raised from EUR 10 to EUR 91, while the distinction between court proceedings under the 2006 Act and ordinary civil proceedings was abolished and consequently the same fees applied to both. 39. As regards the admissibility of a constitutional complaint, section 55a of the Constitutional Court Act provides as follows: “(1) A constitutional complaint is not admissible if the violation of human rights or fundamental freedoms did not have serious consequences for the complainant. (2) It is deemed that there has been no violation of human rights or fundamental freedoms which had serious consequences for the complainant with regard to individual acts: issued in small-claims disputes in accordance with the act which regulates civil procedure, or in other disputes if the value in dispute for the complainant does not exceed the amount which is determined by the definition of small claims disputes in the act which regulates civil procedure; if only a decision on the costs of proceedings is challenged by the constitutional complaint; issued in trespass to property disputes; issued in minor offence cases. (3) Irrespective of the preceding paragraph, in especially well-founded cases the Constitutional Court may exceptionally decide on a constitutional complaint against the individual acts referred to in the preceding paragraph. An instance of an especially well-founded case is a decision that concerns an important constitutional question which exceeds the importance of the specific case.”