The First Lost Case

Violation of Human Rights

Due to slow court procedures, it is incumbent on the Slovenian government to pay its first indemnity of at least 10 thousand German marks due to determined violations of human rights.

AIM Ljubljana, 4 April, 1998

The official Ljubljana received news that Slovenia has recently lost its first case at the European Commission for Human Rights. That is the reason why a few days ago president Milan Kucan invited Mitja Deisinger, president of the Supreme Court of Slovenia to a meeting; it was just one in a row of meetings at which judges, members of the judicial council, minister of justice and other officials concerned discussed chances for improvement of work of Slovenian judiciary. Electronic media claim that the reason for frequent discussions on the topic of the judiciary is the excessive delay in resolving cases in Slovenian courts, although the truth is actually slightly different.

As it was possible to learn from well-informed sources in Strasbourg, thanks to the decision of the European Commision for Human Rights, Slovenia will have to pay the plaintiff - if the damaged agrees to the offered sum - at least 10 thousand German marks of indemnity. It is interesting that the appeal for violation of human rights was submitted and favourably solved because of excessively long procedures in Slovenian courts. This novelty, unformally confirmed by the competent officials in state attorney's office, is a very important precedent: it is the first case in which a superstate agency determined violation of human rights in Slovenia. This is also the first example that the state will have to pay for it.

So far, practice was quite different - despite reports on violations of human rights in Slovenia (corroborated by criticism of Ombudsman Ivo Bizjak, Helsinki Mionitor and other organizations for human righs), the officials rejected every doubt on the topic. However, it was impossible to shove the decision which had arrived from Strasbourg under the carpet, especially because the highest institutions of the European Union criticized unpermissible delays in the work of Slovenian judiciary at the moment when Slovenia has formally initiated negotiations about its full-fledged membership in Brussels.

However, the first case Slovenia lost at the European Commission for Human Rights, still does not mean that human rights are massively violated in Slovenia. It could in fact be said that this is the result of implementation of the European Convention on Human Rights signed by Slovenia back in 1994, which enables its inhabitants, after completion of trials in state courts, if they are dissatisfied with the court decision, to appeal to the European judiciary. Decisions of the European Court for Human Rights are legally binding and final, which means that the state concerned is obliged to obey them or face sanctions. And that is not all: states which signed the European Convention on Human Rights, based on findings of the mentioned European court, must take all necessary measures in order to set straight the wrong judicial practice, pay indemnities, and even amend their legislature, in order to avoid similar failures in the future. In order to ensure implementation of all these measures, at the end of a trial, the Council of Ministers publicizes the decision of the court.

Slovenia is nowadays at the beginning of the described road. In its case, there will be no court decision but some kind of a "friendly settlement" in which the accused state, made aware by the the Commission for Human Rights that it had made a mistake, offers the damaged (i.e. the plaintiff) an indemnity. The Commission (which should not be confused with the one in Brussels) operates in the process as the institution of the first instance which first accepts or rejects appeals, then offers to be the mediator, and in the end forwards its opinion to the European Court for Human Rights in Strasbourg. If the damaged (plaintiff) decides to accept the offer of the accused (the home state), the case is officially "forgotten", as if the procedure had never taken place. As concerning the archives and documentation, the Commission registers only that it was "the case of X against the state", since the procedure in this phase is kept secret.

But, even when the "friendly settlement" takes place, the undoubted fact remains that human rights were violated in the particular case. This form of ending court proceedings is primarily the simplest way for the accused state to avoid the foreseeable outcome of a litigation and public shame; Austria, for instance, is one of the states which often uses this way out from a difficulty, in order to offer the impression to the European public that it conscientiously abides by higher legal standards. That is why the Commission recommends the same method to all the new signatories of the European Convention on Human Rights, in order to create the best possible image during the process of integration into the Union.

When this specific, Slovenian case is concerned, the appeal referred to slowness of Slovenian courts in resolving punitive cases, in the light of European legislature which prescribes that every person is entitled to have an unbiased court decide about his/her case "justly, publicly and within a reasonable time". Although the "reasonable time" is not clearly defined, according to the decisions of the court in Strasbourg, a procedure should not last longer than five, six years at the most. If the process lasts longer - a punishment is imminent. This, of course, refers to all European countries; and absolute record-holders in this discipline are the Italians. Therefore, the officials of the Slovenian state attorney's office can do nothing else but seek information at the European Documentation Centre in Ljubljana about the sums of money which the Commission and the European Court for Human Rights adjudicate in similar cases. The data they ran across were not at all encouraging: in Pierazzini case, the Court decided that Italy had to pay an indemnity of 11 million liras (about 11 thousand German marks). Another plaintiff, Casciaroli, for a 15-year long litigation, won an indemnity of 60 million liras, while Triggiani for 12 years of trials in Italian courts, thanks to the court in Strasbourg (after four years only) got the record-high amount of 150 million liras for the suffered difficulties. In all the listed cases, European judges were not at all interested in arguments of the accused, such as "we would like to work faster, but we have not enough judges".

That is why from the aspect of the Slovenian state budget, it is highly disturbing that many of the current litigations have exceeded the reasonable time limits. According to the assessments of nongovernmental organizations, in the two-million inhabitant Slovenia, there are about one million uncompleted court proceedings, while according to the assessments of the state administration this figures is somewhere around half a million. For a great deal of all the uncompleted litigations Slovenian courts are overwhelmed with, the state itself is to blame, because the badly formulated laws on ownership transformation and denationalization got their epilogue in court. Thousands of administrative and court procedures should be added to this because of failure to issue citizenship, deletion from the register of permenent residence, denial of the right to military pensions, and litigations due to threats with eviction of families who had their housing units allocated to them by the Yugoslav People's Army in 1991, at the time of the moratorium, which the Slovenian administrative agencies - although they had acquired their tenants' rights pursuant the legislature in force at the time - later proclaimed null and void.

This does not complete the list of litigations from Slovenia which have already entered the procedure in the European institutions in charge. The Commission has registered appeals of more than 130 damaged persons, and their number is still increasing. The appeals refer to various problems - from the already mentioned problems with denationalization to exceeding authorization. One in three appeals which are just undergoing the final procedure and which will probably end in a "friendly settlement" refer to excessive use of police force against a citizen of Germany who was held in custody for possession of narcotics... Willingly or not, these happy days of the beginning of negotiations on full-fledged membership in the European Union with eleven new candidates along with Slovenia, were spoiled by the fiollowing unambiguous message: We are not at all interested in pretexts about shortage of judges; if you will not accelerate work of the judiciary, you will be paying indemnifities, because of our decisions! All that, unfortunately, will still not be sufficient to prevent different forms of violation of human rights. The consolation might be that violence of the state against the individual at least is not - free of charge any more.

Igor Mekina

(AIM)