POHLEN v. SLOVENIA
Inadmissible
Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
1. The applicant, Mr Saverij Pohlen, is a Slovenian national who was born in 1936 and lives in Pobegi. The respondent Government (“the Government”) were represented by their Agent, Mr Lucijan Bembič, State Attorney-General. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 27 January 1997 the applicant instituted civil proceedings against the Company for Public Roads (Družba za državne caste) and Koper Municipality in the Koper Local Court (Okrajno sodišče v Kopru) seeking restoration of a wall on his property which had allegedly been damaged during road building works. 4. On 2 February 2001 the applicant urged the court to proceed with his case. 5. On 12 November 2001 and 22 January 2003 the applicant made written submissions. 6. Hearings were held on 23 January 2003, 27 February 2003 and 9 October 2003. 7. During the proceedings the court obtained an expert opinion. 8. On 9 October 2003 the court adopted a judgment rejecting the applicant’s claim, which was served on the applicant on 18 November 2003. 9. On 26 November 2003 the applicant appealed to the Koper Higher Court (Višje sodišče v Kopru). 10. On 19 April 2005 the court dismissed the applicant’s appeal. 11. It would appear that this judgment was served on the applicant on 10 June 2005. 12. On 29 May 2007 the respondent Government were given notice of the present application. 13. On 23 August 2007 the State Attorney’s Office sent a settlement proposal to the applicant under section 25 of the Act on the Protection of the Right to a Trial without undue Delay (“the 2006 Act”). In its proposal, the State Attorney’s Office acknowledged the violation of the right to a trial within a reasonable time and, taking into account the fact that the applicant had not stated a claim as to the amount of just satisfaction sought in his application to the Court, offered the applicant a written statement in accordance with section 17 of the 2006 Act. He was requested to reply or state his counter-proposal. 14. On 11 September 2007 the applicant informed the State Attorney’s Office that he disagreed with the proposal and that he wanted this Court to rule on the matter. 15. On 27 December 2007 the State Attorney’s Office sent a new letter to the applicant, explaining its proposal and proposing the applicant to specify the amount of compensation claimed in respect of non-pecuniary damage. The State Attorney’s Office assured the applicant it would immediately examine his claim and respond to it. He was requested to reply in one month. 16. The applicant did not reply to the State Attorney’s Office’s proposal, but instead, on 10 February 2008, he informed the Registry of the Court that he insisted that the case be decided by the Court. The applicant also explained that he had not responded to the State Attorney’s Office’s letter of 27 December 2007 because it was in substance the same as the initial one. 17. The Slovenian Government adopted on 12 December 2005 a Joint State Project on the Elimination of Court Backlogs, the “Lukenda Project”. Its goal is the elimination of backlogs in Slovenian courts and prosecutors’ offices by the end of 2010, by providing for structural and managerial reform of the judiciary. As a part of the “Lukenda Project” the Parliament adopted the 2006 Act (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Journal, No. 49/2006) which has been implemented since 1 January 2007. 18. Section 25 of the 2006 Act lays down the following transitional rules in relation to applications already pending before the Court: “(1) In cases where an infringement of the right to a trial without undue delay has already ceased and the party has filed 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 the State Attorney’s 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 paragraph 1 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 filed 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 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.” 19. The following parts of the 2006 Act are relevant as regards the “claim for just satisfaction” and other means aimed at providing redress: “When deciding on the legal remedies under this Act, the circumstances of the particular case shall be taken into account, namely: its complexity in terms of facts and law; actions of the parties to the proceedings, in particular as regards the use of procedural rights and fulfilment of obligations in the proceedings; compliance with rules on the set order for resolving cases, or with statutory deadlines for fixing preliminary hearings or for giving court decisions; the manner in which the case was heard before a supervisory appeal or a motion for a deadline was lodged; the nature and type of case and its importance for a party.” “.... (2) Just satisfaction shall be provided by: i. payment of monetary compensation for damage caused by an infringement of the right to a trial without undue delay; ii. a written statement from the State Attorney’s Office that the party’s right to a trial without undue delay has been infringed; iii. the publication of a judgment that the party’s right to a trial without undue delay has been infringed.” “(1) Monetary compensation shall be payable for non-pecuniary damage caused by an infringement of the right to a trial without undue delay. Strict liability for any damage caused shall lie with the Republic of Slovenia. (2) Monetary compensation for individual finally decided cases shall be granted in amounts from 300 to 5,000 euros. (1) Given the circumstances of the case, the State Attorney’s Office may, by agreement with the party under Article 19 of this Act and taking account of criteria referred to in Article 18, paragraph 1 of this Act, make a written statement without monetary compensation to the party as a compensation for non-pecuniary damage caused by the violation of the right to a trial without undue delay. If the right to a trial without undue delay has been seriously violated and at the request of the party, the State Attorney’s Office may in addition to the monetary compensation also make a written statement. (2) The written statement shall include data referred to in the Article 5, paragraph 2, subparagraphs 1, 2, 3 and 4 of this Act, an indication that a violation of the right to a trial without undue delay has occurred and the length of the undue delay. (3) A written statement shall be made by the State Attorney’s Office within the concluded settlement referred to in Article 19 of the present Act. At the party’s request, the written statement shall be published on the website of the State Attorney’s Office which shall cover the costs thereof. The written statement shall be made public for two months and thereupon archived within the website or deleted within fifteen days of receipt of a request from the party or the majority of parties concerning the written statement. “... (3) Territorial jurisdiction for decision-making on an action for damages under this Act shall lie with the local court in whose district the plaintiff is a permanent or temporary resident or has registered office. ... (6) 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. (7) Appeal on points of law shall be excluded for disputes on damage under this Act.” “... (2) The State Attorney’s Office shall pay monetary compensation and the party’s costs of the proceedings on the basis of a final court decision which has established an infringement of the right to a trial without undue delay in the proceedings, under section 20 or section 21 of the present Act.” ...” “Funds ... shall be earmarked in the Budget of the Republic of Slovenia within the framework of the financial plan of the State Attorney’s Office.”