FIFTH SECTION

DECISION

Application no . 4458/08 Alojz ZIDAN Å EK and Marija ZIDANÅ EK against Slovenia

The European Court of Human Rights (Fifth Section), sitting on 2 April 2013 as a Committee composed of:

Angelika Nußberger , President, Boštjan M. Zupančič , Helena Jäderblom , judges, and Stephen Phillips , Deputy Section Registrar ,

Having regard to the above application lodged on 17 December 2007,

Having regard to a friendly settlement reached between the parties,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Alojz Zidanšek and Ms Marija Zidanšek , are Slovenian nationals, who were born in 1938 and 1946 respectively and live in Celje . They were represented before the Court by Mr R Mavri , a lawyer practising in Laško .

The Slovenian Government (“the Government”) were represented by their Agent.

A. The circumstances of the case

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

On 4 April 1998 the applicants lodged an action for trespass and a request for interlocutory injunction against L. Z. before the Å entjur pri Celju Local Court . The applicants claimed that L. Z. who was the owner of the servient estate interfered with their easement to use a driveway to their property by modifying the course of the driveway.

Hearings were held on 5 July 2000 and on 6 April 2006. On the latter date the Å entjur pri Celju Local Court dismissed both the action and the request for interlocutory injunction of the applicants. The court found that the applicants could still exercise their easement rights as before and hence no economic interest for the claim existed. The applicants appealed.

On 31 August 2006 the Celje Higher Court dismissed the appeal of the applicants. The applicants lodged a constitutional appeal.

On 23 August 2007 the Constitutional Court dismissed the constitutional appeal of the applicants by referring to section 55.b of the Constitutional Court Act.

B. Relevant domestic law

For relevant domestic law, see the judgment Lesjak v. Slovenia ( no. 33946/03, 21 July 2009) and Tomažič v. Slovenia (no. 38350/02, 13 December 2007) .

COMPLAINTS

The applicants complained under Articles 6 and 13 of the Convention about the length of proceedings and lack of effective remedy in this respect.

They further complained under Article 6 about the unfairness of the proceedings, stating in particular that the courts based their decision to dismiss the claim on the lack of economic interest which they considered to be contrary to the established practice. They also complained under Article 13 of the Convention that the Constitutional Court declined to deal with their constitutional appeal and merely referred to section 55.b of the Constitutional Court Act, which had entered into force after their constitutional appeal had been lodged. They argued that this decision of the Constitutional Court had retroactively interfered with their rights.

THE LAW

1. Complaints under Articles 6 (length of proceedings) and 13 of the Convention

T he Court notes that, after the Government had been given notice of the application, they informed the Court that they had reached a settlement with the applicants as regards the violation of the right to a trial within a reasonable time. The applicants subsequently informed the Court that they wished to withdraw their complaints under Articles 6 (length of proceedings) and 13 of the Convention.

The Court takes note that following the settlement reached between the parties the matter has been resolved at the domestic level and that the applicants wish to withdraw their application in the part concerning their complaints about the undue length of proceedings and the lack of an effective remedy in that respect. It is satisfied that respect for human rights as defined in the Convention or its Protocols does not require the examination of the application to be continued (Article 37 § 1 in fine of the Convention).

In view of the above, it is appropriate to strike the application as far as it concerns the above complaints out of the list in accordance with Article 37 § 1 (a) of the Convention.

2. Other complaints

As regard the applicants ’ complaint about the unfairness of the proceedings, the Court notes that the applicants essentially disagree with the outcome of the proceedings. Having regard to all material in its possession and in so far as the matters complained of are within its competence, the Court considers that this part of the application does not disclose any appearance of a violation of the Convention . It follows that it is inadmissible under Article 35 § 3 (a) as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.

As to the applicants ’ complaint about the retroactive effect of the amendment of the Constitutional Court Act, the Court notes that the new provisions concerning the admissibility of the appeal were indeed to be applied to the cases already pending before the Constitutional Court . However, having regard to the case-law on the matter and to the special nature of the role of the Constitutional Court, the Court considers that the manner in which the new rules were applied to the applicants ’ case did not impair the very essence of their right to a court within the meaning of Article 6 § 1 (see, mutatis mutandis, Brualla Gómez de la Torre v. Spain , 19 December 1997, §§ 35-39, Reports of Judgments and Decisions 1997 ‑ VIII). This complaint is therefore also inadmissible under Article 35 § 3 (a) as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases with regard to the complaints under Articles 6 and 13 of the Convention;

Declares the remainder of the application inadmissible .

Stephen Phillips Angelika Nußberger Deputy Registrar President