THIRD SECTION
DECISION
Application no. 37559/05
by Društvo Taboriščnikov-Ukradenih Otrok & 147 Others
against Slovenia
The European Court of Human Rights (Third Section), sitting on 6 May 2008 as a Chamber composed of:
Josep Casadevall, President,
Boštjan M. Zupančič,
Alvina Gyulumyan,
Egbert Myjer,
Ineta Ziemele,
Luis López Guerra,
Ann Power, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 14 September 2005,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the formal declarations accepting a friendly settlement of the case,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The applicants, Društvo Taboriščnikov-Ukradenih Otrok, which is a Slovenian non-governmental association working for the interests of the “stolen children” (“the applicant association”), and 147 others (see appendix for details), were represented before the Court by Mr R. Završek, a lawyer practising in Ljubljana.
Six of the applicants died in the course of the proceedings (see attached table). On 17 March 2008 close family members who appear also to be heirs of five of the deceased applicants informed the Court that they wished to pursue their complaints before the Court. They continued to be represented by Mr R. Završek.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1942, during World War II, the German Nazis kidnapped 600 Slovenian children (known as “the Stolen Children”) and separated them from their parents and other family members, most of whom were later killed or taken to concentration camps.
Members of the applicant association and the 147 individual applicants were among those children.
Allegedly, those responsible for the crimes described above were not held to account in the Nuremberg trials, nor have the victims received any compensation for the damage suffered. As a result, the surviving victims instituted the following proceedings before the Slovenian authorities.
1. The criminal complaint lodged by the applicants
On 24 September 1994, an uncertain number of the applicants lodged a criminal complaint with the Celje District Public Prosecutor against unknown offenders for, inter alia, the criminal offence of genocide and war crimes against the civilian population. In the criminal complaint, they also stated their compensation claim against Slovenia, which was essentially the same as the one pursued in the civil proceedings (see below).
On 8 September 2005 those applicants inquired about the state of the proceedings. Allegedly, they received no reply from the public prosecutor.
2. The civil proceedings
On 24 June 1994, 175 alleged victims of the acts described above, including at least 132 applicants, all represented by one lawyer, instituted civil proceedings against Slovenia in the Celje District Court (Okrožno sodišče v Celju) seeking compensation for the pecuniary and non-pecuniary damage they had suffered as a consequence. They argued that Slovenia had been entitled to obtain reparation from Germany and should therefore be liable to pay damages to the plaintiffs.
On 28 June 1994 the Convention entered into force.
Between 11 July 1994 and 23 October 1997 the plaintiffs lodged six preliminary written submissions. By July 1997 the number of plaintiffs had increased to 213.
Following the court’s request, the plaintiffs submitted missing authority forms on 12 March 1997.
Between 23 August 1996 and 21 April 1997 the applicants lodged three requests for a hearing.
On 15 July 1997 and 23 October 1997 the court held hearings. On the latter date it issued an interim judgment finding that the State was liable for damages in this case.
Subsequently, the State appealed to the Celje Higher Court (Višje sodišče v Celju). On 3 December 1998 the court allowed the appeal and remitted the case to the first-instance court for re-examination.
After the remittal of the case, the plaintiffs made, between 6 April 2000 and 11 May 2005, twelve requests that a date be set for a hearing.
On 20 August 2001 the case was granted priority.
Between 27 September 2001 and 21 December 2005 the court held four hearings.
During the proceedings the court appointed an expert psychiatrist. On 14 December 2004 it also appointed the Ljubljana Faculty of Law to prepare an expert opinion, which it refused on 14 April 2005. Among other witnesses, the court also heard the then Slovenian Minister for Foreign Affairs.
On 21 February 2006, further to the submission of missing authority forms by certain plaintiffs, the court delivered a written judgment rejecting the claim. The judgment was served on the applicants on 21 April 2006.
On 8 May 2006 the plaintiffs appealed to the Celje Higher Court (Višje sodišče v Celju).
On 14 December 2006 the court dismissed the appeal. On that date the case was “finally resolved” (pravnomočno rešen).
On 5 February 2007 the plaintiffs lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče).
On 30 April 2007 the Celje District Court dismissed the appeal on points of law in respect of those plaintiffs who had not submitted powers of attorney, including 23 of the applicants.
On 12 November 2007 the plaintiffs lodged a supervisory appeal with the president of the Supreme Court complaining about the delays in the proceedings.
On 10 January 2008 the court rejected the applicant’s appeal on points of law. The judgment was served on the applicants on 30 January 2008.
COMPLAINTS
The applicants complained under Article 6 § 1 of the Convention that their right to a fair trial had been infringed by the excessive length of the civil proceedings and the length of the proceedings instituted upon a criminal complaint. They furthermore complained under Article 13 of the Convention about the lack of an effective domestic remedy in respect of the excessive length of the proceedings.
THE LAW
A. Victim status of the applicant association
Referring to decisions issued in the domestic proceedings, the Government alleged that the applicant association was not party to the domestic proceedings and that it was therefore not entitled to lodge an application under Article 34 of the Convention in respect of the alleged violations relating to the length of these proceedings.
The applicants did not address this objection by the Government.
The Court notes that the applicant association did not claim to represent its members in the way that, for instance, a lawyer represents his client, but claimed that it was itself a victim of a breach of rights protected by Articles 6 and 13 of the Convention. In this connection the Court notes that the applicant association was not a party to the domestic proceedings and thus could not have been directly affected as such by their alleged unreasonable length. Consequently, the Court considers that it may not claim to be a victim of the alleged violations.
This part of the application is therefore incompatible ratione personae with the provisions of the Convention and must be rejected pursuant to Article 35 §§ 3 and 4 (see, for example, Norris, National Gay Federation v. Ireland, no. 10581/83, Commission decision of 16 May 1985, Decisions and Reports 44, p. 132, and see also, by contrast, Gorraiz Lizarraga and Others v. Spain, no. 62543/00, § 36, ECHR 2004‑III).
B. Whether it is justified to continue the examination of the application as regards the deceased applicants
The Court must also address the issue of entitlement to pursue the part of the application originally introduced by the applicants Mrs Jožefa Fužir, Mrs Ana Kosu, Mr Franc Marolt, Mr Janez Remic, Mr Bogomil Jurančič and Mr Slavko Marolt, who died in the course of the proceedings before the Court. Except for Mrs Ana Kosu, all the deceased applicants are survived by close family members who have requested to pursue their complaints before the Court.
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 Malhous v. the Czech Republic (dec.), no. 33071/96, ECHR 2000-XII; Goc v. Poland (dec.), no. 48001/99 , 23 October 2001, and Pisarkiewicz v. Poland, no. 18967/02, § 31, 22 January 2008).
The Court therefore finds it justified to continue the examination of the application as regards those deceased applicants in respect of whom close family members have expressed the wish to continue the proceedings.
As regards Mrs Ana Kosu no heirs or relatives have expressed any wish to continue the proceedings before the Court. In these circumstances, the Court concludes that it is no longer justified to continue the examination of that part of the application within the meaning of Article 37 § 1 (c) of the Convention (see, for example Kay v. United Kingdom (dec.), no. 78147/01, 18 November 2003). Furthermore, the Court finds no reasons of a general character, as defined in Article 37 § 1 in fine, which would require the examination of this part of the application by virtue of that Article. Accordingly, this part of the application should be struck out of the list.
C. As regards the friendly settlement reached between the Government and the individual applicants listed in the appendix, except Mrs Ana Kosu
On 4 December 2007 the Court received the following declaration signed by the applicants’ representative:
“We, 147 individual applicants (see appendix) note that the Government of Slovenia are prepared to pay each of us ex gratia the sum of 3,000 euros, which is to cover any non-pecuniary damage, and jointly 1,500 euros for the costs and expenses incurred with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
These sums will 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. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
We accept the proposal and waive any further claims against Slovenia in respect of the facts giving rise to this application. We declare that this constitutes a final resolution of the case.
This declaration is made in the context of a friendly settlement which the Government and we have reached.”
On 2 January 2008 the Court received the following declaration from the Government:
“I, Lucijan Bembič, Agent of the Government of Slovenia, declare that the Government of Slovenia offer to pay ex gratia 3,000 euros to each individual applicant (see appendix), which is to cover any pecuniary and non-pecuniary damage, and jointly 1,500 euros for the costs and expenses incurred with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
These sums will 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 undertake 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 will constitute the final resolution of the case.”
Further to the applicants’ letter of 4 December 2007, which has been replied to by the Government on 2 January 2008, the parties also agreed to add a clarification that the sums indicated in the declaration should be free of any taxes that may be applicable.
The Court takes note of the friendly settlement reached between the Government and the individual applicants listed in the appendix, except Mrs Ana Kosu. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no public policy reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). Accordingly, this part of the application should be struck out of the list.
D. Article 29 § 3 of the Convention
Having regard to the above considerations, the Court also concludes that Article 29 § 3 of the Convention should no longer apply to the case.
For these reasons, the Court unanimously
Holds that the close relatives of the applicants Mrs Jožefa Fužir, Mr Franc Marolt, Mr Janez Remic, Mr Bogomil Jurančič and Mr Slavko Marolt who have expressed the wish to pursue their complaints have standing to continue the present proceedings in their stead;
Decides to strike the application out of its list of cases as far as it concerns the individual applicants;
Decides to declare the remainder of the application inadmissible.
Santiago QuesadaJosep Casadevall
RegistrarPresident
Appendix – list of individual applicants
Name
Date of birth
1.
Ivan Acman
24/04/1941
2.
Franc Ambrožič
29/07/1937
3.
Anton Bobnič
05/07/1940
4.
Vida Bolko
22/05/1936
5.
Marija Božič
02/12/1931
6.
Alojz Brunčič
19/06/1936
7.
Jože Brunčič
15/12/1937
8.
Rudi Brunčič
13/03/1941
9.
Ivana Črček
07/04/1936
10.
Zofija Derča
30/04/1925
11.
Danilo Doberšek
13/05/1936
12.
Drago Karol Doberšek
04/11/1938
13.
Ivan Doberšek
18/03/1933
14.
Veronika Dravinac
26/11/1928
15.
Marija Florjanc
07/09/1934
16.
Franc Fras
18/02/1941
17.
Franc Friškovec
09/05/1942
18.
Jožefa Fužir*
11/05/1926
19.
Štefka Glušič
21/12/1934
20.
Marija Grabner
08/08/1925
21.
Dušan Grešak
12/09/1935
22.
Ivanka Gril
09/06/1926
23.
Ana Groblar
29/07/1928
24.
Vladimir Guna
18/07/1941
25.
Dušan Haložan
22/05/1931
26.
Jakob Homar
01/05/1936
27.
Ladislav Hribar
15/04/1931
28.
Pavla Hudobreznik
30/06/1938
29.
Marija Ivanuša
11/03/1927
30.
Fanika Jager
18/04/1939
31.
Edvard Ježovnik
06/09/1930
32.
Martin Ježovnik
09/12/1924
Name
Date of birth
33.
Jožefa Jug
09/04/1939
34.
Bogomil Jurančič*
05/06/1934
35.
Konrad Jurkošek
10/01/1929
36.
Alojzija Juvan
09/06/1928
37.
Marija Kačičnik
23/01/1939
38.
Jožica Kaše
17/03/1942
39.
Alojzija Knafelc
21/02/1931
40.
Pavlina Kokol
26/06/1932
41.
Jožefa Komerički
06/03/1931
42.
Gvido Kordon
05/09/1925
43.
Vilibald Kos
27/08/1931
44.
Ana Kosec
03/05/1935
45.
Franc Kostanjevec
14/07/1941
46.
Marija Kostanjevec
17/12/1934
47.
Ana Kosu*
30/05/1926
48.
Helena Košenina
11/04/1931
49.
Davorin Kovač
21/09/1931
50.
Avguštin Mihael Kovačič
19/08/1937
51.
Kazimir Krempuš
16/02/1939
52.
Terezija Kresnik
03/03/1935
53.
Ida Kučer
22/02/1937
54.
Marija Kuhar
04/07/1935
55.
Marija Kukovec
30/06/1939
56.
Ivana Lah
30/01/1934
57.
Jožefa Lapornik
14/03/1931
58.
Marija Lipnikar
13/08/1933
59.
Stanislav Ljubej
26/09/1931
60.
Franc Marolt*
15/01/1937
61.
Slavko Marolt*
20/10/1925
62.
Danijel Melavc
17/07/1932
63.
Marija Menart
19/05/1936
64.
Jožef Menčak
06/12/1940
65.
Jožefa Mrčun
21/04/1938
66.
Stanislava Novak
07/11/1931
67.
Franc Ocvirk
19/01/1929
68.
Leopoldina Oman
25/10/1939
Name
Date of birth
69.
Ernest Orožim
10/01/1931
70.
Jože Orožim
11/01/1929
71.
Anton Oštir
29/11/1931
72.
Ivan Oštir
20/03/1929
73.
Jože Pajer
31/01/1932
74.
Frančiška Pavšek
10/09/1931
75.
Štefanija Pečečnik
26/11/1933
76.
Edi Petrič
18/03/1930
77.
Olga Pintar
20/09/1940
78.
Stanka Pipan
27/02/1938
79.
Marija Pirečnik
13/08/1929
80.
Milena Plaznik
04/04/1935
81.
Marjeta Poček
13/12/1938
82.
Matevž Podvinšek
21/09/1941
83.
Anton Potočnik
31/05/1936
84.
Cecilija Potočnik
11/11/1938
85.
Jože Potočnik
17/04/1933
86.
Terezija Povalej
27/09/1934
87.
Ana Nuša Poznik
27/01/1938
88.
Vladimir Pravdič
23/08/1940
89.
Silvija Prelec
02/11/1929
90.
Aljoz Slavkom Preložnik
19/06/1930
91.
Vinko Marjan Preložnik
12/07/1932
92.
Zdenka Cirila Privšek
08/08/1938
93.
Franc Puncer
22/09/1931
94.
Marija Pustoslemšek
21/03/1934
95.
Rudi Pušnik
06/10/1941
96.
Fortunat Razboršek
18/10/1932
97.
Franc Razboršek
02/12/1933
98.
Antonija Remic
17/01/1937
99.
Franc Remic
29/03/1935
100.
Janez Remic*
21/07/1936
101.
Matilda Reš Kornik
17/02/1938
102.
Franc Rozoničnik
08/02/1941
103.
Dragica Sedej
12/11/1928
104.
Ana Selčan
26/01/1932
105.
Bogomira Sgerm
18/10/1937
Name
Date of birth
106.
Jožef Skornšek
30/03/1938
107.
Marija Slokan
15/06/1929
108.
Stanko Slokan
07/01/1932
109.
Drago Karol Smolič
17/10/1926
110.
Valentin Stakne
20/12/1933
111.
Katarina Stojanšek
21/11/1937
112.
Darinka Šarlah
06/09/1935
113.
Milena Šemrov
02/11/1924
114.
Jelka Šporin
04/01/1935
115.
Mihaela Breda Štajnmec
24/09/1932
116.
Alojz Štiglic
28/09/1929
117.
Franc Štiglic
27/11/1938
118.
Janez Štiglic
27/11/1938
119.
Rozalija Šumej
02/09/1939
120.
Jerica Šuster
07/03/1942
121.
Ivanka Tamše
17/05/1937
122.
Ivanka Tavčar
02/04/1928
123.
Franc Teršek
17/10/1941
124.
Marjan Tovornik
31/01/1928
125.
Venčeslav Usar
01/10/1937
126.
Marija Vinčec
22/03/1933
127.
Stanka Vodopivec
12/10/1935
128.
Rezika Rozina Vrabič
19/03/1929
129.
Marija Vrbek
24/12/1937
130.
Vlado Weinberger
24/08/1933
131.
Stanko Zagode
15/09/1927
132.
Alojz Zagožen
21/06/1931
133.
Ivan Zagožen
10/04/1934
134.
Jakob Zagožen
01/07/1937
135.
Martin Zagožen
03/09/1926
136.
Vladimir Zagožen
12/07/1929
137.
Kristina Zalezina
04/12/1932
138.
Angela Zaveršnik
29/05/1933
139.
Marija Žagar
10/10/1926
140.
Milena Žerič
06/09/1941
141.
Andreja Žerovnik
13/10/1934
142.
Ivan Žmavc
18/01/1930
Name
Date of birth
143.
Janez Žmavc
07/05/1932
144.
Peter Žmavc
06/12/1936
145.
Helena Žnidarčič
23/02/1938
146.
Ana Žohar
13/03/1934
147.
Jožefa Žvipelj
25/03/1938
* Applicants who died in the course of the proceedings.
Full & Egal Universal Law Academy