Last Updated on July 2, 2019 by LawEuro
FOURTH SECTION
DECISION
Application no. 52195/12
Vida NOVAK
against Slovenia
The European Court of Human Rights (Fourth Section), sitting on 19 June 2018 as a Chamber composed of:
Ganna Yudkivska, President,
Vincent A. De Gaetano,
Paulo Pinto de Albuquerque,
Carlo Ranzoni,
Georges Ravarani,
Marko Bošnjak,
Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above application lodged on 8 August 2012,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
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.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Inheritance proceedings
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.
2. The 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.
3. Proceedings concerning compensation for undue length of the contentious proceedings (“the compensation proceedings”) under the Protection of the Right to a Trial without Undue Delay Act
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.
4. Termination of the inheritance proceedings and settlement in respect of the length of this set of 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.
B. Relevant domestic law
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 andapplicable 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.”
COMPLAINTS
40. The applicant complained that the length of the contentious proceedings had been incompatible with the “reasonable time” requirement, as laid down in Article 6 § 1 of the Convention. She further complained, under Article 13 of the Convention, that an excessive burden had been placed on the litigants in the compensation proceedings under the 2006 Act due to the limited reimbursement of lawyer’s fees.
THE LAW
A. Complaint under Article 6 § 1 of the Convention
41. The applicant complained of a violation of Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations … everyone is entitled to a … hearing within a reasonable time by [a] … tribunal …”
1. The parties’ arguments
42. The Government argued that the proceedings before the Constitutional Court (see paragraphs 29 and 30 above) should not be taken into account for the purpose of the six-month time-limit set out in Article 35 § 1 of the Convention. In their view, this time-limit had started to run on 2 February 2011, when the Celje Higher Court had given its judgment (see paragraph 28 above), and the applicant, who had lodged her application with the Court on 8 August 2012, had failed to comply with it.
43. The Government further argued that the applicant had lost her victim status as she had been awarded compensation domestically. They invited the Court to take account of the sums the applicant had received in the context of the settlement reached in respect of the length of the inheritance proceedings (see paragraph 33 above), which had run parallel to the contentious proceedings.
44. As regards the reimbursement of legal fees, the Government argued that the amount had been sufficient. They submitted that in ordinary civil proceedings the court would have, at the relevant time, approved the applicant’s legal fees with respect to the first-instance proceedings, including attendance at a hearing, in the amount of EUR 262.50, and for the appeal in the amount of EUR 168; that is to say in total EUR 430.50. However, considering her percentage of success, the applicant would have had to be awarded 28% and 11% of those amounts respectively. According to the new Fees Schedule, the court would approve legal fees in the amount of EUR 585.30 for the first two levels of jurisdiction in a case like the applicant’s.
45. The applicant argued that she had used the remedies before the Constitutional Court in good faith, with a view to resolving the case at domestic level. The fact that she had been unsuccessful was not due to a failure to comply with some procedural requirement.
46. As regards the victim status, the applicant disputed the Government’s arguments. She maintained that the compensation awarded to her was inadequate. In particular, she pointed out that she had been awarded only EUR 65 for costs relating to her legal assistance in proceedings which had involved two levels of jurisdiction. In her view, lawyers could not reasonably be expected to provide legal assistance under such conditions and litigants, like her, therefore had no choice but to pay legal fees from the money received in compensation. She further argued that under the law applicable at the material time, namely the Lawyer Fees Act (see paragraph 37 above), the reimbursable legal fees for the compensation proceedings had been significantly lower than the reimbursable legal fees for comparable proceedings concerning ordinary civil claims. Moreover, there had been no justification for the delay in adopting a new Fees Schedule after the Lawyer Fees Act had been repealed (see paragraph 38 above).
47. The applicant did not dispute the Government’s calculation of the legal fees which would have been reimbursable under the Lawyer Fees Act in regular civil proceedings concerning a claim like the applicant’s (see paragraph 44 above). However, she argued that she would also have been entitled to EUR 136.50 for the pre-court proceedings – a fact which the Government had disregarded.
2. The Court’s assessment
48. The Court takes note of the Government’s objection concerning the compliance with the six-month time-limit (see paragraph 42 above). However, it does not consider it necessary to examine it because this complaint is in any event inadmissible for the following reasons.
49. The Court refers to the principles governing the assessment of an applicant’s victim status in its judgment in the case of Scordinov. Italy (no. 1) ([GC], no. 36813/97, §§ 178-192, ECHR 2006‑V). It reiterates that under the principle of subsidiarity it falls first to the national authorities to redress any alleged violation of the Convention. It further reiterates that a decision or measure favourable to an applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, for example, Amuur v. France, 25 June 1996, § 36, Reports of Judgments and Decisions 1996‑III, and Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999‑VI).
50. The Court further points out that in the proceedings concerning a redress for a violation of the “reasonable time” requirement where the State, on account of the poor organisation of its judicial system, forced litigants – to some extent – to have recourse to a compensatory remedy, it is particularly important that it avoids placing an excessive burden on litigants where their action is justified (see, mutatis mutandis, Scordino (no. 1), cited above, § 201).
51. Turning to the circumstances of the present case, the Court considers that the acknowledgment of the violation of the “reasonable time” requirement was made in substance, as in proceedings under the 2006 Act awards can only be made if a violation of the right to a hearing within a reasonable time has been established (see Žunič v. Slovenia (dec.), no. 24342/04, § 24, 18 October 2007). Having regard to the case-law on the subject-matter, the Court notes that the applicant’s victim status will further depend on whether the redress afforded to her at the domestic level was adequate and sufficient having regard to Article 41 of the Convention (see, among other authorities, Jakupović v. Croatia, no. 12419/04, § 16, 31 July 2007). This issue falls to be determined in the light of the principles established under the Court’s case-law (see Scordino (no. 1), cited above, §§ 178-213, and Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006-V).
52. In this connection, the Court agrees with the Government that in assessing the amount of compensation awarded by the domestic authorities it should take into account the fact that the applicant received separate amounts of compensation for two sets of proceedings, namely EUR 650 in respect of the length of the contentious proceedings (see paragraph 28 above) and a further EUR 5,000 as compensation for the length of the inheritance proceedings (see paragraph 33 above).It observes that the two sets of proceedings were directly related and in large part overlapped, since the inheritance proceedings were stayed because and while the contentious proceedings were being conducted (see paragraphs 5 and 32 above). The determination of the applicant’s “civil rights” within the meaning of Article 6 § 1 of the Convention therefore began with the initiation of the inheritance proceedings and continued in the contentious proceedings (see, mutatis mutandis,Šakanovič v. Slovenia, no. 32989/02, § 38, 13 December 2007, and Andreja Klinar v. Slovenia, no. 34544/02, §§ 42 and 43, 8 April 2008).
53. The Court observes that together the two sets of the related proceedings lasted, during the Court’s jurisdiction ratione temporis, seventeen years and four months, and involved four different levels of jurisdiction. In view of the foregoing the Court notes that the compensation granted in the present case – EUR 5,650 – is lower compared with the sums awarded for comparable delays in the Court’s case-law. Whether the amount awarded may be regarded as reasonable, however, falls to be assessed in the light of all the circumstances of the case. These include not merely the duration of the proceedings in the specific case but also the fact that under the national system compensation will in general be awarded and paid more promptly than would be the case if the matter fell to be decided by the Court under Article 41 of the Convention (see, among many other authorities, Kalajžić v. Croatia (dec.), no. 15382/04, 28 September 2006, and Dubjakova v. Slovakia (dec.), no. 67299/01, 19 October 2004).
54. As regards the applicant’s argument concerning the limited reimbursement of the legal fees (see paragraphs 46 and 47 above), the Court reiterates that, in cases arising from individual applications, it is not its task to examine the domestic legislation in the abstract, but it must consider the manner in which that legislation was applied to the applicant in the particular circumstances of the case (see Sirc v. Slovenia, (dec.) no. 44580/98, § 246, 22 June 2006). It further notes that in the present case the applicant was awarded, in the compensation proceedings concerning the length of the contentious proceedings, EUR 65 for legal fees (see paragraph 28 above). Apart from the fact that the applicant does not seem to have been awarded significantly less than what she would have likely received in ordinary civil proceedings (see paragraphs 44 and 47 above), the Court notes that she also received EUR 360 in respect of the legal fees relating to the redress for the length of the inheritance proceedings (see paragraph 33 above). Bearing in mind that these two sets of proceedings were to be viewed together for the purpose of the “reasonable time” requirement (see paragraph 52 above), the Court does not find the total sum received by the applicant with respect to legal fees, that is to say EUR 425, unreasonable or such as to place an excessive burden on her and undermine the redress obtained in relation to the violation of her right to a hearing within a reasonable time (see paragraph 50 above).
55. In the light of the material in the file and having regard to the particular circumstances of the case, the Court considers that the sum awarded to the applicant can be considered sufficient and therefore appropriate redress for the violation suffered. The applicant can accordingly no longer claim to be a “victim” of a breach of her right to a hearing within a reasonable time.
56. It follows that this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention.
B. Complaint under Article 13 of the Convention
57. The applicant further complained that a compensation claim under the 2006 Act had been an ineffective remedy because of the excessive burden placed on the litigants due to the limited reimbursement of costs of proceedings, especially lawyer’s fees. She relied on Article 13 of the Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
58. The Government disputed the applicant’s arguments.
59. The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI).
60. Assuming that Article 13 of the Convention was applicable to the present case, the Court notes that, basing its conclusions on an assessment of the legislative provisions of the 2006 Act, it has already found that the aggregate of remedies provided for in cases involving excessively long proceedings at first and second instance was effective in the sense that the remedies were, in principle, capable of both preventing the continuation of the alleged violation of the right to a hearing without undue delay and of providing adequate redress for any violation that had already occurred (see Grzinčič v. Slovenia, no. 26867/02, § 98, 3 May 2007, and Korenjak v. Slovenia (dec.) no. 463/03, § 78, 15 May 2007). The Court further notes that it has upheld the Government’s objection of loss of victim status on the grounds that the compensation awarded by the domestic courts had been sufficient in view of the length of the proceedings, taking into account also the sums awarded with respect to the costs relating to the applicant’s legal representation (see paragraphs 54 and 55 above).
61. In view of the foregoing, the Court considers that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, by a majority,
Declares the application inadmissible.
Done in English and notified in writing on 5 July 2018.
Andrea Tamietti Ganna Yudkivska
Deputy Registrar President
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