by Lidija KUKEC
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,
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, Ms Lidija Kukec, is a Slovenian national who was born in 1946 and lives in Vrhnika. She was represented before the Court by Mr B. Kukec, a lawyer practicing in Vrhnika. 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 3 January 1994 the applicant instituted civil proceedings against J.M., her ex-husband, and A.M., his father, in the Ljubljana Basic Court, DomZale Unit (Temeljno sodišče v Ljubljani, enota v DomZalah) requesting the court to assess what property belonged to her following her divorce.
The court held two hearings during the proceedings.
On 14 June 2005 the renamed DomZale Local Court (Okrajno sodišče v DomZalah) decided on the case, upholding the applicant’s claim in part. In its decision, the court also terminated the proceedings instituted against A.M., since the latter had died in the meantime.
The applicant and J.M. both appealed against the judgment.
On 9 November 2005 the Ljubljana Higher Court (Višje sodišče v Ljubljani) modified in part the first-instance court’s judgment.
This judgment was served on the applicant on 1 December 2005.
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 that the civil proceedings had been excessively long and under Article 13 of the Convention that there was no effective domestic remedy in that regard.
She also complained under Article 1 of Protocol 1 that inactivity on the part of the domestic courts had breached her right to peaceful possession.
On 16 September 2008 the respondent Government were informed of the present application under Article 54 § 2(a) of the Rules of Court.
On 14 January 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 a violation of the right to a trial within a reasonable time and offered to pay the applicant 3,600 euros (EUR) in respect of non-pecuniary damage and EUR 413.11 for costs and expenses.
Further to the receipt of the applicant’s reply, the Government informed the Court that the applicant had accepted the settlement proposal.
On 3 March 2009 the applicant informed the Court in writing that the case had been settled at the domestic level and that she wished to withdraw her application regarding the alleged violation of Articles 6, 13 and Article 1 of Protocol 1.
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
(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 do not wish to pursue her 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