European Court of Human Rights

FIRST SECTION

DECISION

Application no. 25861/07
by Dhionis TRESKA
against Greece

The European Court of Human Rights (First Section), sitting on 7 April 2009 as a Chamber composed of:

Nina Vajić, President,
Christos Rozakis,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Dean Spielmann,
Sverre Erik Jebens, judges,
and Søren Nielsen, Section Registrar,

Having regard to the above application lodged on 24 May 2007,

Having regard to the observations submitted by the respondent Government,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Dhionis Treska, is an Albanian national who was born in 1966 and is currently detained in Patras. The Greek Government (“the Government”) were represented by the Delegates of their Agent, Mr M. Apessos, Senior Adviser at the State Legal Council, and Mrs S. Trekli, Adviser at the State Legal Council. The Albanian Government did not make use of their right to intervene (Article 36 § 1 of the Convention).

The facts of the case, as submitted by the parties, may be summarised as follows.

On 28 January 2005 the applicant was found in possession of drugs and arrested by the police. On 5 June 2006 the Thessaloniki Assize Court sentenced him to seventeen years' imprisonment and to a fine of 17,000 euros (decision no. 824/2006). The applicant lodged an appeal with the Thessaloniki Court of Appeal. The hearing was fixed for 17 September 2009.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention about the length of the proceedings.

THE LAW

Article 37 § 1 of the Convention, in so far as relevant, provides:

“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.”

Rule 36 of the Rules of Court, as relevant, reads:

“1. Persons, non-governmental organisations or groups of individuals may initially present applications under Article 34 of the Convention themselves or through a representative.”

Rule 45 § 3 of the Rules of Court provides:

“Where applicants are represented in accordance with Rule 36, a power of attorney or written authority to act shall be supplied by their representative or representatives.”

The Court recalls that – as the wording of Article 37 § 1 indeed indicates – an applicant's intention not to uphold his or her application with the Court may not only be assumed if he or she expressly withdraws the application. “[T]he circumstances lead to the conclusion that ... the applicant does not intend to pursue his application” within the meaning of that Article also where he or she overtly or tacitly shows to have lost interest in the proceedings (see, for example, Mihailov v. Bulgaria (dec.), no. 52367/99, 9 September 2004).

This can be the case, for example, if the applicant fails to respond to requests to return an appropriately completed form of authority (see, inter alia, Fitzmartin and Others v. the United Kingdom (dec.), nos. 34953/97 and others, 21 January 2003; Willis and Others v. the United Kingdom (dec.), nos. 49764/99 and others, 4 March 2003). The Court notes in this respect that where applicants choose to be represented by a solicitor under Rule 36 of the Rules of Court, rather than to introduce their application themselves, it is a requirement, under Rule 45 § 3 of the Rules of Court, that a power of attorney or written authority to act shall be supplied by their representatives.

The Court further reiterates that an applicant's failure to submit written observations on the admissibility and merits of the case or other information or documents requested by the Court may equally warrant the conclusion that he or she does not intend to pursue the application (see, inter alia, Mihailov v. Bulgaria, cited above; Kazimov v. Russia (dec.), no. 17645/04, 9 March 2006).

In the present case the Court observes that the applicant designated the lawyer who was representing him before the domestic courts also as the lawyer who would represent him before it. This lawyer was therefore requested by the Court to submit a duly completed and signed form of authority as required by Rule 45 § 3 of its Rules. However, whilst he did not refuse that he was representing the applicant, he failed to submit a power of attorney.

In the Court's view, this failure to submit a power of attorney over a lengthy period of time alone suffices to infer that the applicant does not intend to pursue his application within the meaning of Article 37 § 1 (a) of the Convention (Zayed v. Germany (dec.), no. 35866/03, 20 February 2007).

In addition to that, the Court observes that the applicant's lawyer was advised by the Court that the case had been communicated to the respondent Government and, subsequently, that he had to submit written observations on the admissibility and merits of the case. After expiry of the time-limit for submission of his observations, he was reminded of the Court's request in a letter which has been sent by registered mail and advised that the failure to submit observations might result in the application being struck out of the Court's list of cases. To date, the applicant's representative failed to reply. There is nothing to indicate that he has not received the Court's letters. Nor did the Court receive any other communication by the applicant. The Court derives also therefrom that the applicant does not intend to pursue his application within the meaning of Article 37 § 1 (a).

The Court does not consider that respect for human rights requires it to continue the examination of the present application pursuant to Article 37 § 1 in fine of the Convention.

Accordingly, the Court considers that the present application should be struck out of its list of cases under Article 37 § 1 (a) of the Convention.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Søren Nielsen Nina Vajić
Registrar President