THIRD SECTION

DECISION

Application no. 16234/02 by Iztok KURBUS against Slovenia

The European Court of Human Rights (Third Section), sitting on 31 January 2008 as a Chamber composed of:

Corneliu Bîrsan , President, Boštjan M. Zupančič , Elisabet Fura-Sandström , Alvina Gyulumyan , Egbert Myjer , David Thór Björgvinsson , Isabelle Berro-Lefèvre , judges and Santiago Quesada , Section Registrar ,

Having regard to the above application lodged on 30 March 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 formal declarations accepting a friendly settlement of the case,

Having regard to the observations submitted by the respondent Government ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Iztok Kurbus , is a Slovenian national who was born in 1976 and lives in Sv . Jurij ob Ščavnici . He was represented before the Court by Mr V. Toplak , a lawyer practising in Ptuj .

The Slovenian Government (“the Government”) were represented by their Agent, Mr L. Bembič , State Attorney-General .

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

On 11 December 2000 , at 3.25 p.m., the applicant was arrested by the Police while crossing the border between Hungary and Slovenia driving a large road transport vehicle on a suspicion of having committed a criminal offence of trafficking in drugs as a member of a criminal organization.

The next day, on 12 December 2000, the applicant was brought before the investigating judge. After the applicant had been interrogated and the Public Prosecutor had confirmed the intention to institute criminal proceedings against the applicant, the investigating judge ordered a detention of the applicant on a reasonable suspicion of having committed the aforementioned offence and in order to prevent his committing the same offence again.

On 14 December 2000 the Murska Sobota District Court ( Okrožno sodišče v Murski Soboti ) received by fax the Public Prosecutor ’ s request for investigation against the applicant and twelve alleged accomplices. The applicant was accused of transporting 60 kg of heroin from Bosnia and Herzegovina to Croatia .

On 15 December 2000 the court received the request also by mail.

The investigation was subsequently opened at the Murska Sobota District Court. The applicant remained in custody . On 10 January 2001 his detention was prolonged for two months by the Panel of the Murska Sobota District Court (“the Panel”) and afterwards for further three months by the Supreme Court ( Vrhovno s od i šče ).

On 8 June 2001 an indictment against the applicant and nine alleged accomplices was lodged with the Murska Sobota District Court. On the same date the term of the applicant detention was extended by the Panel; its decision being upheld by the Maribor Higher Court ( Višje sodišče v Mariboru ) on 20 June 2001 . On 6 August 2001 the Panel again prolonged the detention finding that the circumstances requiring the detention had not changed, that the alleged criminal offence was of a serious nature and concerned an organized crime, that the applicant was in a poor financial situation and that the purchasers were still at liberty; thus there was a concrete and real risk that the applicant would repeat the crime.

On 22 August 2001 the applicant ’ s appeal concerning the prolongation of his detention was rejected by the Maribor Higher Court finding, inter alia , that the applicant ’ s argument that he had not committed a crime in the period between the alleged criminal offence and his arrest did not raise any doubts as to the correctness of the first-instance decision.

Subsequently, the applicant lodged a request for the protection of legality ( zaht e va za varstvo zakonitosti ) disputing, inter ali a , the justification of the prolongation of his detention, the existence of a reasonable suspicion and the need for such a severe measure as detention.

On 27 September 2001 the Supreme Court rejected the request as unfounded.

On 3 October 2001 the applicant lodged a constitutional appeal in which he complained about the lack of justification for his detention and unlawfulness of his detention between 12 and 15 December 2000.

On 15 February 2002 the Constitutional Court ( Ustavno sodišče ) dismissed the appeal. The Constitutional Court found that the applicant ’ s objection against the indictment had been rejected by the competent court on 13 July 2001 confirming that the reasonable suspicion had existed. It pointed out that the applicant was accused of a serious crime involving 60 kg of heroin and that there was a real danger of repeating the crime; the detention was thus necessary to protect the safety of others. The Constitutional Court rejected the applicant ’ s complaint concerning the length of the proceedings and the length of his detention finding that the applicant had not invoked explicitly a violation of a “reasonable time” requirement in his appeals against the decisions concerning the prolongation of his detention.

In the course of the proceedings, the Panel continued to review the applicant ’ s detention on remand every two months on its own motion and prolonged it on the same basis as it had been initially ordered. The applicant ’ s a ppeals again st extensions of detention continued to be rejected by the Maribor Higher Court and his motions for the protection of legality were dismissed by the Supreme Court on 7 March 2002, 4 July 2002, 5 September 2002, 14 November 2002, 9 January 200 3, 6 March 2003, 17 April 2003 and 28 August 2003. The courts repeated the reasons in favour of the applicant ’ s detention and found that the detention could not have been replaced by less severe measures since it was necessary in order to protect safety and health of others.

In the meantime, since 27 February 2002, the Murska Sobota District Court scheduled several hearings in the case. On 25 September 2002 a hearing was postponed pendin g a motion for recusal of judges lodged by the defence. This motion, as well as subsequent similar motions, was rejected. However, on 11 February 2003 the p resident of the chamber considering the case stepped down.

On 14 October 2002 t he Constitution al Court declared inadmissible the applicant ’ s constitutional appeal against the S upreme Court ’ s judgment of 4 July 2002. The Constitutional Court stressed, inter alia , that the right to a trial within a reasonable time covered also the length of detention. Moreover, when the accused is detained, the “reasonable time” criteria had to be applied stricter. In respect of the circumstances of the applicant ’ s case, the Constitutional Court , however, concluded that the complexity of the case, in particular the number of accused persons involved and the seriousness of the offence, justified the length of the criminal proceedings against the applicant who had been detained for twenty months by then.

On 6 March 2003 the Constitutional Court deciding on the applicant ’ further appeal found that there had been no delays which could have been attributed solely to the courts. In addition, the case was a very complex one involving many accused persons and witnesses and requiring cooperation with foreign authorities.

On 24 March 2003 the Maribor Higher Court moved the venue of the procee dings to the Ptuj District Court ( Okrožno sodišče v Ptuju ). All the judges at the Murska S obota District Court got acquainted, in the different stages of the proceedings, with the contaminated evidence (exclusionary rule) . The Murska Sobota District Court was requested to remove the relevant documents, which exclusion had been ordered at the hearing of 3 April 2002.

On 9 April 2003 the p resident of the Ptuj District Court ’ s chamber assigned to hear the case recused herself after noticing that the case-file still included the aforementioned documents and a police record, which should have been subject to exclusionary rule.

O n 5 June 2003 t he applicant was released since the maximum period of detention on remand permitted by the law was about to expire. He had spent a total of 2 years, 5 months and 24 days in pre-trial detention.

By the judgment of 87 pages, delivered on 8 July 2004, the Ptuj District Court convicted the applicant and seven others. The applicant was sentenced to 2 years and 8 months imprisonment.

According to the judgment, further to the change of venue, the Ptuj District Court scheduled 61 hearing, out of which 36 were held.

The written judgment was served on the applicant ’ s two representatives on 30 October 2004 and 3 November 2004 respectively.

On 4 and 11 November 2004, respectively, the applicant ’ s representatives lodged appeals. Five of the co-accused also appealed as did the Public Prosecutor.

The proceedings are pending before the Maribor Higher Court .

COMPLAINTS

1. Under Article 5 § 1 of the Convention t he applicant complained that his detention had not been justified and had not been ordered “in accordance with a procedure prescribed by law”.

He submitted that there had been no genuine danger of re-offending since he had had a reliable income prior to his arrest.

He further submitted that, in the absence of the request for investigation, the detention order issued by the investigating judge on 12 December 2000 had expired after a statutory maximum of forty eight hours. Since the Public Prosecutor filed the request for investigation only on 15 December 2000, his detention in the period in-between had been unlawful – lacking any legal basis in the national legislation.

2. The applicant alleged, under Article 5 § 3 of the Convention, that the time he had spent in detention was excessive. The authorities failed to display due diligence in the conduct of the criminal proceedings. In addition, his continued detention, like his arrest, had not been justified since there was no genuine danger of re-offending. Moreover, less severe measure should have been imposed; for example seizure of his passport or home detention (Article 5 § 3 of the Convention).

3. The applicant further complained, under Article 6 §§ 1 and 3(c) of the Convention, that the proceedings against him had lasted unreasonably long and had been unfair. He disputed findings of the domestic courts and challenged the evidence on which his conviction was based. Moreover, he complained that he had been informed by the police about his right to legal assistance only five hours after his arrest.

THE LAW

On 27 September 2007 the applicant and on 8 October 2007 the Government informed the Court that the parties had reached an agreement for a friendly settlement of the case on 25 September 2007 . They enclosed copies of the agreement duly signed by both parties.

The following are the substantial terms of the agreement:

“ 1. The Republic of Slovenia is bound to pay to the applicant Mr. Iztok Kurbus , So vjak 24a, Sv . Jurij ob Ščavnici , with a view to securing a friendly settlement of the present case, the amount of EUR 6 , 000. The suggested sum is to cover any pecuniary and non-pecuniary damage as well as costs of the proceedings before the Court.

2. The Republic of Slovenia will pay the offered amount within thirty days after receiving a signed copy of a friendly settlement and necessary information about Mr. Iztok Kurbus ’ s EMŠO, tax ID number, number of the banking account and the name of the bank where Mr. Iztok Kurbus wishes to receive payment.

3. Iztok Kurbus hereby accepts all conditions of a friendly settlement of the Government. With his signature he also waives any further claims against the Republic of Slovenia in respect to the facts of the application no. 16234/02 ...

Mr. Iztok Kurbus considers that this constitutes the final resolution to the case .”

The Government requested that the case be struck out of the list of cases pursuant to Article 37 § 1 of the Convention.

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). In view of the above, it is appropriate to discontinue the application of Article 29 § 3 and to strike the case out of the list.

For these reasons, the Court unanimously

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

Santiago Quesada Corneliu Bîrsan Registrar President