Постановление Европейского суда по правам человека от 30.03.2009 "Дело "Леже (Leger) против Франции" [рус., англ.]

ould be taking over the case from Mr de Felice, although she did not produce a form of authority completed in her name. In a letter of 12 August 2008 the Registry asked her to indicate whether any heirs had come forward and, if so, whether they had expressed the wish to pursue the proceedings; in the latter event she was asked to produce a form of authority completed in her name.
47. On 8 September 2008 Ms Terrel produced a power of attorney drawn up in her name by Mrs Viviane Hirardin, {nee} Derveaux, who was referred to as the applicant's niece and the sole heir who had come forward after his death.
48. On 26 September 2008 the Government stated, firstly, that the documents produced did not appear to establish the existence of the alleged family relationship and, secondly, that even assuming that such a relationship were established, there was no evidence that Mrs Hirardin had accepted the estate; they further noted the insufficient legitimate interest on Mrs Hirardin's part in having the proceedings pursued on her behalf, observing in particular that she did not appear to have ever visited the applicant in prison.
49. In a letter of 30 September 2008 the Registry invited Ms Terrel to submit her comments by 10 October. No response has been forthcoming.
50. The Court observes that the request to pursue the proceedings was submitted by a person who has provided no evidence either of her status as an heir or close relative of the applicant, or of any legitimate interest (see, among other authorities, mutatis mutandis, {Thevenon}, cited above).
51. In the light of the foregoing, in accordance with Article 37 § 1 (c) of the Convention, the Court considers that it is no longer justified to continue the examination of the application. Furthermore, having regard to the fact that the relevant law has changed and that similar issues have been resolved in other cases before it (see, for example, Kafkaris v. Cyprus [GC], No. 21906/04, ECHR 2008-...), the Court considers that respect for human rights does not require it to continue the examination of the case (see, mutatis mutandis, Scherer, cited above).

FOR THESE REASONS, THE COURT

Decides by thirteen votes to four to strike the application out of its list of cases.

Done in English and in French, and notified in writing on 30 March 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Christos ROZAKIS
President

Erik FRIBERGH
Registrar

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Judge Spielmann joined by Judges Bratza, Gyulumyan and Jebens is annexed to this judgment.

C.L.R.

E.F.

DISSENTING OPINION OF JUDGE SPIELMANN, JOINED
BY JUDGES BRATZA, GYULUMYAN AND JEBENS

1. I voted against striking the application out of the list of cases because in my view the case reveals special circumstances affecting respect for the rights guaranteed by the Convention that required the Court to continue the examination of the case.
2. Pursuant to Article 37 § 1 (c) in fine of the Convention "the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the protocols thereto so requires."
3. The mere fact that the domestic law has changed (see paragraph 51 of the majority judgment) is in my view irrelevant. Interpreting Article 37 § 1 (c) in fine:
"[t]he Court has repeatedly stated that its "judgments in fact serve not only to decide those cases brought before the Court but, more generally, to elucidate, safeguard and develop the rules instituted by the Convention, thereby contributing to the observance b

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