THIRD SECTION
DECISION
Application no. 36175/06
by Friderik RUSJAN
against Slovenia
The European Court of Human Rights (Third Section), sitting on 23 November 2010 as a Committee composed of:
Elisabet Fura, President,
Boštjan M. Zupančič,
Ineta Ziemele, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having regard to the above application lodged on 21 August 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 Friderik Rusjan, a Slovenian national who was born in 1933 and lived in Solkan. He died on 19 August 2009, in the course of the proceedings before the Court.
On 2 December 2009, the late applicant’s son Mr Borut Rusjan declared that he wished to pursue his application before the Court.
Like the late applicant, his son, who lives in Ljubečna, is represented before the Court by Ms M. Končan Verstovšek, a lawyer practising in Celje.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 28 December 1993 the applicant instituted proceedings before the Nova Gorica Basic Court (Temeljno sodišče v Novi Gorici) against his former employer HIT d.o.o. Nova Gorica.
On 28 June 1994 the Convention came into force in respect of Slovenia.
On 14 October 2003, after four hearings had been cancelled, the court held its first hearing.
On 19 December 2003 the Koper Labour Court (Delovno Sodišče v Kopru) delivered a judgment. The applicant appealed.
On 7 October 2004 the Ljubljana Higher Labour and Social Court (Višje delovno in socialno sodišče v Ljubljani) delivered a judgement and upheld the appeal in part.
On 13 September 2005 the Supreme Court (Vrhovno sodišče) dismissed the applicant’s appeal on points of law. The applicant lodged a constitutional complaint.
On 23 January 2007 the Constitutional Court (Ustavno sodišče) rejected the complaint as unfounded.
On 20 June 2007 the defendant lodged a request for the re-opening of the proceeding. The request was rejected on 2 October 2007.
B. Proceedings under the 2006 Act
On 17 July 2007 the application was communicated to the Government under Rule 54 § 2 (b) of the Rules of the Court.
On 28 September 2009 the respondent Government informed the Court that they had received information from the Central Register of the Population that the applicant had died on 19 August 2009.
On 3 November 2009 the State Attorney’s Office sent the Government’s observations regarding the admissibility and merits. The Government informed the Court that they had sent a friendly settlement to the applicant, which was subsequently withdrawn following the applicant’s death. The Government stated that 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), their offer for a friendly settlement was no longer valid.
C. 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 Borut Rusjan has standing to pursue the application originally lodged by the applicant Mr Friderik Rusjan who died on 19 August 2009, in the course of the proceedings before the Court.
On 2 December 2009, the late applicant’s son Mr Borut Rusjan declared that he wished to pursue his application before the Court. He also informed the Court that the inheritance proceedings before the national court were still pending and he therefore could not submit a court decision at the time.
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). In this connection, the Court also reiterates the case Malhous v. The Czech Republic (no. 33071/96, 12 July 2001) where it did not attach decisive importance to the fact that the applicant’s nephew had not been confirmed as the applicant’s heir according to the provisions of the national law at the time of the Court’s examination of the case.
Regard being had to the above, the Court considers that Mr Borut Rusjan, being the applicant’s son, 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 application was communicated to the Government on 17 July 2009 (Article 54 § 2(b) of the Rules of Court) and that the State Attorney’s Office sent a settlement proposal of 21 August 2009 under section 25 of the Act on the Protection of the Right to a Trial without Undue Delay (“the 2006 Act”), acknowledging a violation of the right to a trial within a reasonable time and offering redress for non-pecuniary damage. After having learned that the applicant had died on 19 August 2009, the Government withdrew the 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).
On 23 February 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 15 April 2010 respectively 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 5,800.00 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 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.
Marialena TsirliElisabet Fura
Deputy RegistrarPresident
Full & Egal Universal Law Academy