FIFTH SECTION

DECISION

Application no. 23013/02 by Kjeld FRUENSGAARD against Denmark

The European Court of Human Rights (Fifth Section), sitting on 26 June 2006 as a Chamber composed of:

Mrs S. Botoucharova , President , Mr P. Lorenzen , Mr K. Jungwiert , Mr V. Butkevych , Mrs M. Tsatsa-Nikolovska , Mr J. Borrego Borrego , Mrs R. Jaeger, judges ,

and Mrs C. Westerdiek , Section Registrar ,

Having regard to the above application lodged on 7 June 2002 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Kjeld Fruensgaard, was a Danish national . He was born in 1941 and live d in Odense . He was represented before the Court by Mr Bent Unmack Larsen, a lawyer practising in Copenhagen . The Government were represented by their Agent, Mr Peter Taksøe-Jensen of the Ministry of Foreign Affairs, and their Co-agent, Mrs Nina Holst ‑ Christensen of the Ministry of Justice.

A. The circumstances of the case

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

The applicant was a doctor, specialising in psychiatry. In a reader ’ s letter printed in a newspaper on 23 June 2000 and an interview printed the following day he alleged having had five pat i ents, who independently recounted having been beaten by three-four police officers using wet wrung ‑ out towels at a named Police Headquarters. The described treatment had apparently been committed in the period from 1995 until 1998.

Subsequently, two sets of proceedings were initiated: one by the Regional State Prosecutor aiming at obtaining information from the applicant as to the identity of the five patients in order that an investigation into the alleged police violence commence; another by the Police Association concerning defamation.

In the first set of proceedings three levels of court instances granted an injunction against the applicant to testify as witness despite professional secrecy, however, limited to the identity of the five said patients and to the time when the alleged crimes had been committed. The applicant persisted in refusing to testify, invoking not only professional secrecy, but also his right to remain silent with reference to the pending defamation proceedings.

Subsequently, coercive measures were imposed pursuant to the Administration of Justice Act ( Retsplejeloven ) . Thus, on 8 June 2001 the City Court in Odense ( Retten i Odense ) o rdered that the applicant be detained until he furnished the requested information. This decision was upheld by the High Court of Eastern Denmark ( Østre Landsret ) on 12 June 2001 , but suspended by the Supreme Court ( Højesteret ) on 19 June 2001 , thereby ceasing the deprivation of liberty after eleven days. Instead, on 21 December 2001 the Supreme Court imposed day-fines on the applicant as it found that the allegations concerned very serious crimes committed over a period of four years; that the society had a crucial interest in solving the case; that the applicant ’ s testimony was the only remaining possibility left for the prosecution to investigate the serious matter; that there was no basis for assuming that the Convention would be thereby infringed; and that therefore the applicant - without a legitimate reason - had failed to comply with the injunction to testify. E ach day a fine of 500 Danish kroner (DKK) , equal to approximately 65 euros (EUR) , was imposed on the applicant . H owever, since the Supreme Court had limited the period of day ‑ fines to be imposed to three months in case the applicant refuse d to furnish the required data, altogether he was imposed fines totalling DKK 45 , 00 0, equal to approximately EUR 6 , 000.

In the second set of proceedings a City Court pronounced judgment on 4 July 2002 , convicting the applicant of defamation and sentencing him to a fine of DKK 3 , 000 , equal to approximately EUR 400. In addition, the allegation described in the applicant ’ s reader ’ s letter was declared null and void. The applicant did not appeal against the judgment to the High Court (and the Supreme Court).

B. Events that took place after the case was communicated

On 19 February 200 4 the Court decided , under Rule 54 § 3 (b) of the Rules of Court , to give notice of the application to the Danish Government , which submitted their written observations on the admissibility and merits of the application on 24 June 2004. T he applicant submitted his reply on 5 August 200 4 .

On 19 January 2006 the Court decided, under Rule 54 § 2 (c) of the Rules of Court, that the Government should be invited to submit further written observations on the admissibility and merits of the application by 18 April 2006 .

By letter of 7 April 2006 , the Government informed the Court that the applicant had passed away on 25 March 2006 .

By letter of 11 April 2006 the Section Registrar requested that the applicant ’ s representative submit his comments to this information, notably in order to determine whether the applicant had heirs, who wished to pursue the application.

In reply, on 28 May 2006 the applicant ’ s representative informed the Court that the applicant left three children and none of them wished to pur s ue the application in his stead.

COMPLAINTS

The applicant complained that his detention, which lasted f rom 8 until 19 June 2001 , was unlawful and thus contravened Article 5 of the Convention. Moreover, he complained that the coercive measures imposed on him in order that he testified as witness infringed his rights under Article 10 of the Convention.

THE LAW

The Court recalls that on a number of occasions it has accepted that the close relatives of a deceased applicant take his or her place (see , among others, Scherer v. Switzerland , judgment of 25 March 1994, Series A no. 287, p. 14-15 , § 31).

In the present case, however, none of the applicant ’ s children wished to pursue the application .

Thus, having regard to the events that occurred after the notice of the application had been given to the Danish Government and after they had submitted their observations on the admissibility and merits of the case, the Court considers that it does not have to examine the present application and that Article 37 § 1 of the Convention should be applied. That provision, in its relevant part, reads:

“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;...

Furthermore, the Court finds no reasons of general interest concerning respect for human rights, within the meaning of the final sentence of Article 37 § 1 , which would require the continued examination of the case.

For these reasons, the Court unanimously

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

Claudia Westerdiek Snejana B o toucharova Registra r President