THIRD SECTION
DECISION
Application no. 8441/06
by Stjepan PETEK
against Slovenia
The European Court of Human Rights (Third Section), sitting on 2 November 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 1 February 2006,
Having regard to the formal declarations accepting a friendly settlement of the case,
Having deliberated, decides as follows:
PROCEDURE
The application was lodged by Mr Stjepan Petek, a Slovenian national who was born in 1936 and lived in Hum na Sutli, Croatia. He died on 23 June 2008, in the course of the proceedings before the Court.
On 20 August 2008 the Pregrada District Court (Općinski sud u Pregradi) declared that Mr Tomislav Petek was Mr Petek’s sole heir.
On 10 March 2009, the late applicant’s son Mr Tomislav Petek declared that he wished to pursue his application before the Court.
Like the late applicant, his son, is represented before the Court by Ms M. Končan Verstovšek, a lawyer practising in Celje.
The Slovenian Government (“the Government”) were represented by their Agent, Mr Lucijan Bembič, State Attorney-General.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 17 December 1991 the applicant instituted proceedings before the Celje Basic Court (Temeljno sodišče v Celju) seeking compensation of damage sustained in a car accident.
On 16 March 1993 the first-instance judgment was issued. An appeal was lodged.
On 8 February 1994 the second-instance court upheld the appeal in part and remitted the case for re-examination. An appeal on points of law was lodged against the rejected part of the appeal.
On 28 June 1994 the Convention came into force in respect of Slovenia.
On 5 April 1996 the Supreme Court rejected the appeal on points of law.
Subsequently the proceedings continued before the first-instance court. The applicant lodged several preliminary submissions and/or requests for a hearing to be set and the first-instance court issued several procedural decisions.
On 21 March 2006 the proceedings were terminated following a court settlement.
Proceedings under the 2006 Act
On 10 July 2008 the respondent Government were requested by the Court to confirm whether section 25 of the Act on the Protection of the Right to a Trial without undue Delay (“the 2006 Act”) would be applied in the present case and, in the affirmative, to submit a copy of the friendly settlement proposal.
On 19 December 2008 the respondent Government informed the Court that a friendly settlement offer was made to the applicant. In their additional submissions, however, they stated that they received information that the applicant had died on 23 June 2008. The offer for a friendly settlement was withdrawn, since under domestic law non-pecuniary claims could not be inherited if the decision awarding the non-pecuniary damages had not yet become final (section 184 of the Code of Obligations – see below).
B. Relevant domestic law
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 Grzinčič v. Slovenia, no. 26867/02, §§ 38-40 and 48, ECHR 2007‑V (extracts).
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
The applicant complained under Article 6 § 1 of the Convention that the domestic proceedings had been excessively long and under Article 13 of the Convention that there was no effective domestic remedy in that regard.
THE LAW
The Court must first examine whether Mr Tomislav Petek has standing to pursue the application originally lodged by the applicant Mr Stjepan Petek who died on 23 June 2008, in the course of the proceedings before the Court.
In the framework of the inheritance proceedings, on 20 August 2008 the Pregrada District Court in Croatia declared that Mr Tomislav Petek was Mr Petek’s sole heir.
On 10 March 2009, the late applicant’s son Mr Tomislav Petek declared that he wished to pursue his application 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, for example, Kovačić and Others v. Slovenia [GC], nos. 44574/98, 45133/98 and 48316/99, §§ 189-192, 3 October 2008, and Mlakar v. Slovenia (dec.), no. 30946/02, 12 December 2006).
Regard being had to the fact that Mr Tomislav Petek has been confirmed as the sole heir after the late applicant in a direct hereditary line (see above), the Court considers that he has a legitimate interest in pursuing the application. The Court must accordingly continue to examine the application at his request.
Furthermore, the Court notes that the Government had been informed of the application on 10 July 2008 (Article 54 § 2(a) of the Rules of Court). After having learned that the applicant had died on 23 June 2008, the Government withdrew the offer for a friendly settlement in the framework of domestic proceedings, 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).
On 21 September 2009, the case was re-communicated to the respondent Government (Article 54 § 2(b) of the Rules of Court). On 6 May 2010 the Court made a friendly settlement proposal to both parties which was accepted.
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.”
On 5 March and 16 April 2010 the Court received friendly settlement declarations signed by the parties under which the applicant’s heir 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 him 8,730.70 euros to cover any non-pecuniary damage as well as costs and expenses. It 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.
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 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).
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