Application no. 37362/02
by Dušan BRAJKOVIĆ
The European Court of Human Rights (Third Section), sitting on 10 November 2005 as a Chamber composed of:
Mr J. Hedigan, President,
Mr B.M. Zupančič,
Mr L. Caflisch,
Mr C. Bîrsan,
Mrs M. Tsatsa-Nikolovska,
Mrs R. Jaeger,
Mr E. Myjer, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged on 1 October 2002,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having regard to the formal declarations accepting a friendly settlement of the case,
Having deliberated, decides as follows:
The applicant, Mr Dušan Brajković, is a Slovenian national who was born in 1929 and lives in Maribor. He is represented before the Court by Mr V. Osim, a lawyer practising in Maribor.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1992, the applicant (together with his wife) instituted proceedings before the Maribor Basic Court, Maribor Unit (Temeljno sodišče v Mariboru, Enota v Mariboru) against F. T. in order to recover a debt of 15.000 DEM.
On 3 November 1992 the Maribor Basic Court issued a partial judgment to which F.T. consented, ordering him to pay 8.000 DEM plus interest. On 10 December 1992 this judgement became final.
On 12 January 1993 the same court in the same proceedings ruled in favour of the applicant and ordered the debtor to pay an additional amount of 7.000 DEM plus interests and their costs. On 1 June 1993 the judgment became final.
On 9 May 1994 the applicant instituted execution proceedings with the Maribor Basic Court, Slovenska Bistrica Unit (Temeljno sodišče v Mariboru, Enota v Slovenski Bistrici) in order to secure the attachment of the debtor’s real property.
On 9 May 1994 the Basic Court granted the request and made a note in the Land Register. The decision became final on 15 November 1994.
In 1995, the reform of the Slovenian judicial system took place and the Slovenska Bistrica Local Court (Okrajno sodišče v Slovenski Bistrici) gained jurisdiction in the present case.
In 1996 the applicant filed numerous requests for supervision with the Ministry of Justice (“MJ”) and the Slovenska Bistrica Local Court in respect of the length of the enforcement proceedings.
On 22 March 1996 the MJ responded that the proceedings were within the reasonable time-limit and that on 4 April 1996 a date for a hearing was set.
On 6 January 1997 the court responded that due to the lack of the personnel, the court was unable to handle the cases within a reasonable time.
On 14 April 1998 the applicant again applied for expedition of his enforcement proceedings.
On 9 December 1998, the same court ordered the joinder of different proceedings against the same debtor.
On 19 February 1999 a hearing was scheduled.
On 11 March 1999 a hearing was held.
On 1 February 2000 a hearing scheduled for 3 February 2000 was cancelled due to the illness of the judge.
On 14 March 2000 a hearing scheduled for 16 March 2000 was cancelled and scheduled for 30 March 2000 since the summons for the hearing were not served on time on the debtor.
On 5 July 2000 the court issued an evaluation of the debtor’s real property.
On 27 November 2000 the court decided that the real property should be sold.
On 11 January 2001 the first public auction was held in order to purchase the debtor’s real property.
On 15 March 2001 the second public auction was held albeit unsuccessfully since the property could not be sold at half price.
On 21 March 2001 the applicant together with other creditors proposed to the court to purchase the real property at one third of the price.
On 13 June 2001 the Local Court rejected the proposal, since the debtor and some of the mortgagees did not agree with it.
On 20 June 2001 the applicant filed his submissions against the court`s decision of 13 June 2001.
On 1 July 2002 the third public auction was held.
On 1 July 2002 the Local Court terminated the proceedings since the debtor’s real property could not find a purchaser even at the third auction and at the half price.
On 11 July 2002 the applicant appealed against this order.
On 17 December 2002 the Maribor Higher Court rejected his appeal.
The applicant did not indicate that he appealed to the Constitutional Court.
Under Article 6 of the Convention, the applicant complained about the length of the indemnity proceedings. Under Article 13 he also claimed that no effective remedies were available to him before the domestic courts.
On 13 April 2005 the Court received the following declaration from the respondent Government:
“I, Lucijan Bembič, State Attorney General, Agent of the Republic of Slovenia declare that – with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights – the Government of Slovenia offer to pay to Mr Dušan Brajkovič the amount of EUR 1,800 (one thousand eight hundred euros), converted into the national currency on the date of payment.
This sum shall cover any pecuniary and non-pecuniary damage as well as costs and expenses. It will be paid, free of any taxes that may be applicable, within three months from the notification of the decision taken by the Court pursuant to Article 37 § 1 of the Convention. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
This sum shall be paid to a bank account named by the applicant.
This payment will constitute the final resolution of the case.”
On 14 April 2005 the representative of the applicant sent a declaration to the Court, which reads as follows:
“I, Dušan Brajkovič, the applicant, note that – with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights – the Government of Slovenia offer to pay me the amount of EUR 1,800 (one thousand eight hundred euros).
This sum – that will be converted into the national currency on the date of payment – covers any pecuniary and non-pecuniary damage as well as costs and expenses. It will be paid free of any taxes that may be applicable, within three months from the notification of the decision taken by the Court pursuant to Article 37 § 1 of the Convention. (...)
I accept the proposal and waive any further claims against Slovenia in respect of the facts of this application. I declare that this payment constitutes a final resolution of the case.
This declaration is made in the context of a friendly settlement which the Government and the applicant have reached.”
The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no public policy reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). Accordingly, Article 29 § 3 of the Convention should no longer apply to the case and it should be struck out of the list.
For these reasons, the Court , unanimously,
Decides to strike the application out of its list of cases.
Vincent Berger John Hedigan Registrar President
BRAJKOVIC v. SLOVENIA DECISION
BRAJKOVIC v. SLOVENIA DECISION