by Nino FERRARI
The European Court of Human Rights (Third Section), sitting on 22 September 2009 as a Chamber composed of:
Boštjan M. Zupančič,
Luis López Guerra,
Ann Power, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 26 May 2004,
Having regard to the written submissions of the parties, and the friendly settlement reached in respect of the length of the proceedings,
Having deliberated, decides as follows:
The applicant, Mr Nino Ferrari, is a Slovenian national who was born in 1948 and lives in Radovljica. He was not represented before the Court. The Slovenian Government (“the Government”) were represented by their Agent, Mr Lucijan Bembič, State Attorney-General.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 22 September 1999, in the context of a real estate dispute, the applicant brought an action before the Radovljica Local Court (Okrajno sodišče v Radovljici) against A.P.
On 1 December 2003 the applicant requested Radovljica Local Court to hold a hearing in the case.
On 11 November 2005 the applicant withdrew his claim with a view to terminating the proceedings.
Relevant domestic law
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”) became operational on 1 January 2007.
Section 25 lays down the following transitional rules in relation to the applications already pending before the Court:
Section 25 - Just satisfaction for damage sustained prior to implementation of this Act
“(1) In cases where a violation of the right to a trial without undue delay has already ceased and the party had filed a claim for just satisfaction with the international court before the date of implementation of this Act, the State Attorney’s Office shall offer the party a settlement on the amount of just satisfaction within four months after the date of receipt of the case referred by the international court for the settlement procedure. The party shall submit a settlement proposal to the State Attorney’s Office within two months of the date of receipt of the proposal of the State Attorney’s Office. The State Attorney’s Office shall decide on the proposal as soon as possible and within a period of four months at the latest.....
(2) If the proposal for settlement referred to in paragraph 1 of this section is not acceded to or the State Attorney’s Office and the party fail to negotiate an agreement within four months after the date on which the party filed its proposal, the party may bring an action before the competent court under this Act. The party may bring an action within six months after receiving the State Attorney’s Office reply that the party’s proposal referred to in the previous paragraph was not acceded to, or after the expiry of the period fixed in the previous paragraph for the State Attorney’s Office to decide to proceed with settlement. Irrespective of the type or amount of the claim, the provisions of the Civil Procedure Act concerning small claims shall apply in proceedings before a court.”
The applicant complained under Article 6 § 1 of the Convention about the length and unfairness of the proceedings. The applicant further complained under Article 13 about the lack of effective remedy in respect of the unreasonable length of proceedings.
On 27 October 2008 the respondent Government were informed of the present application under Article 54 § 2(a) of the Rules of Court.
On 26 March 2009 the State Attorney’s Office sent a settlement proposal to the applicant under section 25 of the 2006 Act (see “Relevant domestic law” above). In its proposal, the State Attorney’s Office acknowledged the violation of the right to a trial within a reasonable time and offered to pay the applicant 2,160 euros (EUR) for non-pecuniary damage.
On 6 May 2009 the applicant informed the Court, in writing, that the case had been settled at the domestic level and that he wished to withdraw his application in its entirety.
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; or
(b) the matter has been resolved;
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 takes note that following the settlement reached between the parties the matter has been resolved at the domestic level and that the applicant does not wish to pursue his application (Article 37 § 1 (a) and (b) of the Convention). 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 in accordance with Article 37 § 1 (a) and (b) of the Convention.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Santiago Quesada Josep