THIRD SECTION
DECISION
Application no. 3248/07
by Alojz DREO
against Slovenia
The European Court of Human Rights (Third Section), sitting on 5 October 2010 as a Committee composed of:
Elisabet Fura, President,
Boštjan M. Zupančič,
Ineta Ziemele, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 28 December 2006,
Having regard to the formal declarations accepting a friendly settlement of the case,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Alojz Dreo, was a Slovenian national, who was born in 1942 and lived in Maribor. He was represented before the Court by Mr B. Verstovšek, a lawyer practising in Celje. He died on 31 August 2008, in the course of the proceedings before the Court.
On 1 April 2009, the late applicant's wife, Ms Bogdana Dreo, declared that she wished to pursue the application of her late husband before the Court. Like the applicant, his widow, who lives in Maribor, was represented before the Court by Mr B. Verstovšek, a lawyer practising in Celje.
The Slovenian Government (“the Government”) were represented by their Agent, Mr L. Bembič, the State Attorney-General.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Proceedings before the Maribor Labour Court
1. On 3 November 2000 the applicant Mr Alojz Dreo instituted civil proceedings concerning his dismissal from work against his former employer before the Maribor Labour Court. The proceedings were finally resolved (pravnomočno končan postopek) before the Higher Labour and Social Court by a judgment of 9 November 2006, that is, before the 2006 Act on the Protection of the Right to a Trial without Undue Delay (“the 2006 Act”) became operational.
2. Subsequently the applicant lodged an appeal on points of law with the Supreme Court, which was rejected on 25 March 2008. The judgment was served on the applicant on 8 April 2010.
3. The applicant did not lodge any acceleratory remedies under the 2006 Act in the proceedings before the Supreme Court.
2. Proceedings before the Maribor Local Court
4. On 25 February 2000 two individuals instituted proceedings against the applicant before the Maribor Local Court, claiming that he had insulted them in the press. The proceedings were finally resolved (pravnomočno končan postopek) before the Maribor Higher Court by a judgment of 27 November 2007, that is nearly eleven months after the 2006 Act became operational.
5. Subsequently, on 15 February 2008, the applicant lodged a request for the protection of legality with the Supreme State Prosecutor's Office, which was rejected on 14 April 2008. Finally, on 18 February 2008 he lodged a constitutional complaint before the Constitutional Court. The proceedings are still pending.
6. The applicant did not lodge any acceleratory remedies under the 2006 Act at any stage of the proceedings.
B. Relevant domestic law
7. The relevant provisions of the Act on the Protection of the Right to a Trial without undue Delay (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Journal no. 49/2006 – the “2006 Act”) can be found in the Court's judgment Tomažič v. Slovenia (no. 38350/02, judgment of 13 December 2007, § 23).
8. Moreover, Section 184 of the Code of Obligations (Obligacijski zakonik, Official Journal no. 83/2001) reads as follows:
“1. The claim for repayment of non-pecuniary damage shall pass to the heirs if it was recognised by a final decision or a written agreement.
2. Under the same conditions, this claim may be the subject of assignment, offset and enforcement.”
COMPLAINTS
9. The applicant complained under Article 6 § 1 of the Convention about the length of the two sets of civil proceedings and under Article 13 of the Convention about the lack of effective remedies in this respect.
THE LAW
10. The Court must first examine whether the applicant's widow Ms Bogdana Dreo has standing to pursue the application originally lodged by the applicant Mr Alojz Dreo, who died on 31 August 2008, in the course of the proceedings before the Court.
11. On 1 April 2009 the applicant's widow declared that she wished to pursue her late husband's application before the Court. In support of her standing before the Court she submitted several documents. First, she submitted the Maribor Local Court's decision of 21 January 2009, issued in the framework of the inheritance proceedings, that no hearing should be held since the applicant did not own any assets which could be inherited. Second, on 15 January 2009 the Agency for Health Insurance declared that the applicant's widow was entitled to a family allowance (posmrtnina) after her deceased husband. Third, on 23 September 2008 the Agency for Elderly and Disability Insurance declared that the applicant's widow was entitled to receive the old-age pension to which previously the applicant had been entitled (vdovska pokojnina). Fourth, in order to support her entitlement to pursue the application before the Court, the applicant's widow also submitted the declaration of the applicant, in the form of a notary certificate dated 22 April 2008, in which he authorised her, inter alia, to represent him in all court proceedings and proceedings before other public authorities and to deal with his assets.
12. In various cases in which an applicant has died in the course of the proceedings the Court has taken into account the statements of the applicant's heirs or of close members of his family who have expressed the wish to pursue the proceedings before the Court (see, for example, Kovačić and Others v. Slovenia [GC], nos. 44574/98, 45133/98 and 48316/99, §§ 189-192, 3 October 2008, Mlakar v. Slovenia (dec.), no. 30946/02, 12 December 2006 and Trnovšek v. Slovenia (dec.), 20844/03, 1 June 2010).
13. The Court notes that the applicant's widow had not been formally declared as the applicant's heir in the inheritance proceedings, since at the time the Maribor Local Court issued the decision with respect to his inheritance the applicant was considered as having no assets which could be inherited. However, the Court observes that in the subsequent proceedings before the domestic authorities and in particular before the Agency for Elderly and Disability Insurance the applicant's widow has been recognised under national law as being entitled to receive assets to which previously the applicant was entitled. The Court therefore considers that she has a legitimate interest in pursuing the application before the Court. The Court must accordingly continue to examine the application at her request.
14. The Court further notes that, in view of the existing case-law of the Court with regard to undue length of domestic proceedings, on 28 September 2009 the Government had been given notice of the application in the part concerning the proceedings before the Maribor Labour Court.
15. Regard being had to the fact that the applicant Mr Alojz Dreo had died on 19 March 2006, the Government refused to offer a domestic settlement proposal, on the ground that under domestic law non-pecuniary claims could not be inherited if the decision awarding the non-pecuniary damages had not yet become final, like in the present case (see above para. 10). However, the Government at the same time also proposed that, in case the Court considered the applicant's heirs as having standing in the proceedings, the Court mediate between the parties with a view to reaching a friendly settlement. After the Government received further documents concerning the standing of the applicant's widow before the Court, they requested the Court on 8 April 2010 to intervene with a view to negotiating a friendly settlement of the case.
16. On 3 May 2010 the Court made a friendly settlement proposal to both parties which was accepted. On 8 and 17 June 2010, respectively, the Court received friendly settlement declarations signed by the parties under which the applicant's widow agreed to waive any further claims against Slovenia in respect of the facts giving rise to this application, against an undertaking by the Government to pay her 3,400 Euros to cover any non-pecuniary damage as well as costs and expenses. It should be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertook to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment should constitute the final resolution of the case.
17. The Court reiterates that Article 37 of the Convention in the relevant part reads as follows:
“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
...
(b) the matter has been resolved; or
(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”
18. The Court takes note of the friendly settlement reached between the parties and finds that the matter has been resolved (Article 37 § 1 (b)). It is satisfied that respect for human rights as defined in the Convention or its Protocols does not require the examination of the application to be continued (Article 37 § 1 in fine of the Convention).
In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Santiago QuesadaElisabet Fura
RegistrarPresident
Full & Egal Universal Law Academy