European Court of Human Rights

 

 

FORMER FOURTH SECTION

 

 

 

 

 

CASE OF PEČENKO v. SLOVENIA

 

(Application no. 6387/10)

 

 

 

 

 

 

 

 

 

 

JUDGMENT

(Revision)

 

 

STRASBOURG

 

29 November 2016

 

 

 

This judgment is final but it may be subject to editorial revision.




In the case of Pečenko v. Slovenia (request for revision of the judgment of 4 December 2014),

The European Court of Human Rights (Former Fourth Section), sitting as a Committee composed of:

          Angelika Nußberger, President,
          Vincent A. De Gaetano,
          Marko Bošnjak, judges,
and Andrea Tamietti, Deputy Section Registrar,

Having deliberated in private on 8 November 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 6387/10) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovenian national, Mr Aleksander Pečenko (“the applicant”), on 22 January 2010.

2.  In a judgment delivered on 4 December 2014 (hereinafter “the original judgment”), the Court held that there had been a violation of Article 3 of the Convention with regard to the applicant’s conditions of detention and a violation of Article 13 of the Convention due to lack of an effective remedy in this regard, and held that there was no need to examine the complaint concerning the conditions of detention under Article 8 of the Convention. The Court also decided to award the applicant 2,200 euros (EUR) for non-pecuniary damage and EUR 500 in respect of costs and expenses and dismissed the reminder of the claim for just satisfaction.

3.  On 16 December 2014 the Government informed the Court that they had learned, on 9 December 2014, that the applicant had died on 1 September 2012. They accordingly requested revision of the original judgment within the meaning of Rule 80 of the Rules of Court.

4.  On 22 September 2015 the Court considered the request for revision and decided to give the applicant’s representative six weeks in which to submit any observations. Those observations were received on 19 November 2015. The Government submitted their comments in reply on 5 January 2016.

THE LAW

THE REQUEST FOR REVISION

5.  The Government requested revision of the judgment of 4 December 2014, which they had been unable to execute because the applicant had died before the judgment had been adopted and no heir or relative had expressed a wish to pursue the application.

6.  The applicant’s representative stated that the applicant had no heirs. He also submitted that he had not been informed of the applicant’s death and had only found out this fact when trying to inform the applicant of the original judgment. He had immediately afterwards informed the Government of this fact. The applicant’s representative added that he should, despite the fact that the applicant had died before the case had been communicated to the Government, be paid the costs and expenses awarded by the Court in the original judgment.

7.  The Court considers that the judgment of 4 December 2014 should be revised pursuant to Rule 80 of the Rules of Court, the relevant parts of which provide:

“A party may, in the event of the discovery of a fact which might by its nature have a decisive influence and which, when a judgment was delivered, was unknown to the Court and could not reasonably have been known to that party, request the Court ... to revise that judgment.

...”

8.  In the present case, the Court had not been informed of the applicant’s death nor can this fact be reasonably assumed to have been known by the Government before they started the execution of the original judgment. The Court further recalls that it has been its practice to strike applications out of the list of cases in the absence of any heir or close relative who has expressed a wish to pursue the application (see, amongst many other authorities, Eremiášová and Pechová v. the Czech Republic (revision), no. 23944/04, § 10, 20 June 2013). It moreover finds no special circumstances relating to respect for human rights as defined in the Convention and its Protocols which require it to continue the examination of the application.

9.  Accordingly, the application should be struck out of the Court’s list of cases (see, amongst many other authorities, Bolovan v. Romania (revision), no. 64541/01, § 13, 20 September 2011).

10.  As regards the applicant’s representative’s argument that he should be awarded costs and expenses for representing the applicant in the proceedings before the Court (see paragraph 6 above), the Court notes that the applicant had died before the application was communicated to the Government. Had the applicant’s representative acted with due diligence and accordingly maintained contact with the applicant and thereby learned of his decease, the case could have been struck out of the Court’s list of cases at the earliest stage and no award would have been made regarding costs and expenses under Article 41 of the Convention. The Court accordingly rejects the applicant’s representative’s claim for costs and expenses.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Declares the Government’s request for the revision of the judgment of 4 December 2014 admissible;

 

      accordingly,

 

2.  Decides to revise the judgment as a whole and to strike the case out of the list.

Done in English, and notified in writing on 29 November 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Andrea Tamietti                                                               Angelika Nußberger
Deputy Registrar                                                                       President