THIRD SECTION
DECISION
Application no. 13051/02
by Matjaž PODMILJŠAK
against Slovenia
The European Court of Human Rights (Third Section), sitting on 18 October 2007 as a Chamber composed of:
MrC. Bîrsan, President,
MrB.M. Zupančič,
MrsE. Fura-Sandström,
MrsA. Gyulumyan,
MrE. Myjer,
MrDavid Thór Björgvinsson,
MrsI. Berro-Lefèvre, judges,
and Mr S. Quesada, Section Registrar,
Having regard to the above application lodged on 6 March 2002,
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 observations submitted by the respondent Government,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Matjaž Podmiljšak, was a Slovenian national who was born in 1972 and lived in Levec. He was represented before the Court by Mrs M. Nosan, a lawyer practising in Celje. The applicant died on 12 February 2004. His parents, Zlata and Jože Podmiljšak, elected to pursue his application before the Court and were also represented by Mrs Nosan. Mr Matjaž Podmiljšak will continue to be referred to as “the applicant” in this decision.
The Slovenian Government (“the Government”) were represented by their Agent, Mr L. Bembič, State Attorney-General.
The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 15 November 1996 the applicant was arrested and put in pre-trial detention on suspicion of establishing a crime syndicate (hudodelska združba) which had committed several car thefts.
On 10 February 1997 a “group of public prosecutors for special matters” (Skupina državnih tožilcev za posebne zadeve), appointed to prosecute organised crime, lodged a bill of indictment against the applicant and four other individuals with the Celje District Court (Okrožno sodišče v Celju), accusing the applicant of establishing a crime syndicate and inducing (napeljevanje) the other accused to steal four cars.
Between 4 July 1997 and 29 January 1998, the court held thirteen hearings.
At the last hearing, held on 30 January 1998, the court found the applicant and the other four accused guilty. The applicant was sentenced to four years and five months’ imprisonment.
On 17 April 1998 the applicant appealed to the Celje Higher Court (Višje sodišče v Celju).
The appellate court held hearings on 14, 15 and 16 September 1998. On 18 September 1998 the court pronounced judgment, dismissing all the appeals and upholding the first-instance court’s judgment.
The appeal against the judgment of 18 September 1998
On 2 November 1998 the applicant, arguing that the facts of the case had been newly-established in the judgment of 18 September 1998, appealed against it to the Supreme Court (Vrhovno sodišče).
In accordance with the provisions of the Criminal Procedure Act, the appeal was lodged with the Celje District Court, which had to decide on its admissibility before forwarding the case to the Supreme Court for a decision on the merits.
On 17 December 1998 the Celje District Court rejected the appeal as inadmissible.
The applicant appealed against this decision to the Celje Higher Court. The court dismissed the appeal on 6 April 1999.
On 28 April 1999 the applicant lodged a request for protection of legality (zahteva za varstvo zakonitosti) with the Supreme Court against the Celje District Court’s decision to reject the appeal and the Celje Higher Court’s dismissal of the appeal against that decision.
On 5 October 2000 the Supreme Court dismissed the request for protection of legality.
The request for protection of legality against the judgment of 18 September 1998
On 9 November 1998 the applicant lodged a request for protection of legality against the judgment of 18 September 1998 with the Supreme Court. He also requested that the execution of the judgment be deferred until the Supreme Court’s decision on the request for protection of legality.
On 22 November 2002 the Supreme Court dismissed the applicant’s request for protection of legality but upheld the other defendants’ requests. The court confirmed the first and second instance judgments in the part concerning the applicant but remitted the case for re-examination as regards the other defendants. The proceedings concerning the applicant thus terminated.
COMPLAINTS
The applicant complained under Article 6 § 1 of the Convention that his right to a fair trial was violated by the excessive length of the proceedings. He also complained under Article 13 about the lack of an effective domestic remedy in respect of the excessive length of the proceedings.
THE LAW
On 9 June 2006 the Court decided to communicate the application to the respondent Government.
On 13 and 19 July 2006 respectively the Government and the applicant’s lawyer informed the Court that the applicant had died on 12 February 2004. On 31 August 2006 the lawyer also informed the Court that the applicant’s parents wished to continue the examination of his application. The representative enclosed the authorisation forms they had signed, but submitted no further substantiation as to their locus standi.
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, Deweer v. Belgium, judgment of 27 February 1980, Series A no. 35, pp. 19-20, §§ 37-38, Vocaturo v. Italy, judgment of 24 May 1991, Series A no. 206-C, p. 29, § 2, and Malhous v. the Czech Republic (dec.), no. 33071/96, ECHR 2000-XII).
The Court notes that under the provisions of Slovenian inheritance law the applicant’s parents are not necessarily also his heirs. The Court further notes that in the first-instance judgment the applicant was referred to as single and without children. Considering that and the close natural tie between children and their parents, the Court will continue to examine the application at the request of the applicant’s parents. However, Mr Matjaž Podmiljšak will continue to be referred to as the applicant for the purposes of the examination of the case.
On 21 November 2006 the Government’s observations on the admissibility and merits of the application were received and the applicant was invited to submit his written observations in reply by 8 January 2007.
As the applicant’s observations had not been received by 8 January 2007 and no extension of time had been requested, the applicant was advised on 22 January 2007 by registered mail that the failure to submit his observations might result in his application being struck out of the list.
As it appears from the acknowledgement-of-receipt card, the letter was received by the applicant’s lawyer on 26 January 2007. The applicant has not replied.
The Court recalls Article 37 of the Convention which, 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
(a) the applicant does not intend to pursue his 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.”
The Court notes that the applicant was advised that he was to submit written observations in reply to those submitted by the Government. He subsequently received a reminder thereof. No response has been received to date. The Court infers therefrom that the applicant does not intend to pursue his application. Furthermore, it considers that respect for human rights as defined in the Convention and its Protocols does not require it to continue the examination of the case.
Accordingly, Article 29 § 3 of the Convention should no longer apply to the case and it should be struck out of the list in accordance with Article 37 § 1 (a) of the Convention.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Santiago QuesadaCorneliu Bîrsan
RegistrarPresident
Full & Egal Universal Law Academy