THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 32963/02
by Ada BITENC
against Slovenia
The European Court of Human Rights (Third Section), sitting on 18 March 2008 as a Chamber composed of:
Josep Casadevall, President,
Elisabet Fura-Sandström,
Corneliu Bîrsan,
Alvina Gyulumyan,
Egbert Myjer,
Ineta Ziemele, judges,
Rajko Pirnat, ad hoc judge,
and Mr Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 3 January 2001,
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 deliberated, decides as follows:
THE FACTS
The applicant was born in 1936 and lives in Preserje.
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 18 November 1985 the applicant’s daughter S.F. made a contract of purchase with a company named Stanovanjska zadruga SCT (“SCT”) to buy a house which SCT was planning to build. S.F. later divorced and changed her name to S.B.
On 29 January 1988 the applicant and her husband instituted civil proceedings on behalf of their daughter (“the plaintiff”) in the Ljubljana Basic Court (Temeljno sodišče v Ljubljani) requesting that SCT comply with the contract and seeking damages for non-completion. They had legal representation in these proceedings.
On 7 March 1989, after two hearings were held, the court issued an interim judgment upholding S.F.’s claim on the merits.
On 29 March 1989 SCT lodged an appeal with the Ljubljana Higher Court (Višje sodišče v Ljubljani).
On 25 October 1989 the court allowed the appeal and set aside the first-instance court’s judgment as it was premature.
In order to estimate the amount of damage incurred by the plaintiff, the first-instance court appointed two experts in construction engineering, one of whom was subsequently replaced by another expert.
Until 28 June 1994, the day the Convention took effect with respect to Slovenia, the court held three hearings.
On 1 January 1995 the reform of the Slovenian judicial system took effect and the case was transferred to the Ljubljana Local Court (Okrajno sodišče v Ljubljani).
On 13 December 1995 the plaintiff requested that a date be scheduled for a hearing.
On 5 November 1996 the court held a hearing.
On 8 January 1997 the court, upon the plaintiff’s request, appointed a new expert in construction engineering who delivered an expert opinion on 4 November 1997.
On 7 April 1998 the court held a hearing where the plaintiff increased her claim. As a result, SCT raised an objection to the amendment, arguing that the claim was barred by prescription (zastaranje). It also objected to the subject-matter jurisdiction of the court. The latter dismissed the objections in a separate decision issued that same day.
On 29 May 1998 SCT appealed against this decision to the Ljubljana Higher Court.
On 25 November 1998 the court allowed the appeal, set aside the contested decision and remitted the case to the first-instance court for fresh examination.
On 1 October 1999 the Ljubljana Local Court held a hearing and declared the case out of its jurisdiction. It transferred the case to the Ljubljana District Court (Okrožno sodišče v Ljubljani).
On 11 June 2001 the Ljubljana District Court held a hearing and heard one of the appointed experts.
On 22 June 2001 the court sought additional information from the appointed expert which he provided five days later.
On 5 July 2001 the court held a hearing. SCT informed the court that bankruptcy proceedings had been instituted against it. The court decided to issue a written judgment.
The judgment, upholding S.B.’s claim in part, was served on the plaintiff on 24 September 2001.
On 21 November 2001 the applicant’s lawyer also received a copy of the judgment.
On 30 October 2001 the judgment of 5 July 2001 became final.
COMPLAINTS
The applicant complained under Article 6 § 1 of the Convention that her right to a fair trial was breached by the excessive length of the proceedings. In substance, she also complained about the lack of an effective domestic remedy in respect of the excessive length of the proceedings (Article 13).
THE LAW
The Government contested the victim status of the applicant. They observed that it was the applicant’s daughter who was the plaintiff in the impugned proceedings and not the applicant herself. She and her husband had merely represented their daughter, the plaintiff, before the courts.
The Government further recalled that Article 6 of the Convention required that the applicant’s rights or obligations were at stake in the domestic proceedings which presupposed that the applicant herself must have been a party to the proceedings. The fact that the applicant was the plaintiff’s representative was therefore not sufficient to attract the protection of Article 6. The applicant had neither been directly nor indirectly affected by the length of the proceedings and therefore could not assert any interest in pursuing the application before the Court. Besides, she did not submit any prima facie evidence demonstrating that she had been the victim of the violations alleged. On the contrary, the facts of the case proved quite the opposite.
The applicant contested the Government’s allegations and produced a letter from the Ljubljana Psychiatric Clinic of 27 February 2006 stating that her daughter had been suffering from a mental illness. She had been subject to treatment since 1995 and had also been institutionalised for an undetermined time. The letter was dated 27 February 2006, signed by a psychiatrist, and stated that “from the expert point of view, there exist[ed] indications for stripping [S.B.] of decision-making ability (opravilna sposobnost) but therapeutic reasons [have] prevent[ed] this from being done”.
In their last submissions, the Government observed that the psychiatrist’s letter of 27 February 2006 had been obtained ex post facto and was therefore irrelevant for the case. A guardian ad litem had never been appointed to S.B.; she had neither been deprived of decision-making ability nor had any proceedings been instituted to this end. Therefore, the presumption that S.B. was perfectly able to exercise her rights had not been rebutted. In any event, it was clear from the facts of the case that S.B. had authorised her parents to represent her in the proceedings. Even if the applicant was the legal representative of S.B., the latter would still be the only individual who could claim the victim status before the Court.
The Court recalls that under Article 34 of the Convention it may receive applications from individuals and others “claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto”. The existence of a victim who was personally affected by an alleged violation of a Convention right is indispensable for putting the protection mechanism of the Convention into motion, although this criterion is not to be applied in a rigid and inflexible way. In order to claim to be a victim of a violation, a person must be directly affected by the impugned measure (see, for example, Buckley v. the United Kingdom, judgment of 25 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1288, §§ 56-59, Valmont v. the United Kingdom (dec.), no. 36385/97, decision of 23 March 1999, and Thevenon v. France (dec.), no. 2476/02, 28 February 2006)
In this respect, the Court notes that all decisions of the domestic courts referred to the applicant’s daughter as the plaintiff in the proceedings before them and the applicant and her husband as the plaintiff’s representatives. Since the applicant was acting merely as her daughter’s representative and was never a party to domestic proceedings, it is apparent that only S.B.’s rights, and not those of the applicant, were at stake in the impugned domestic proceedings.
Furthermore, as to the proceedings before the Court, it is clear from the application form and the initial correspondence that the applicant lodged the application in her own name and not even implicitly on behalf of her daughter, as she could have done, and that the applicant considered herself as a victim of the alleged violations. The Court sees no reason why the applicant could not have applied to this Court as her daughter’s representative. It is also to be noted that the power of attorney before the Court was signed by the applicant and not by her daughter.
In these circumstances, the Court considers that the applicant cannot claim to be a victim of the alleged violations within the meaning of Article 34 of the Convention. Her complaints are thus incompatible ratione personae with the provisions of the Convention and should be declared inadmissible.
In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention and to reject the application.
For these reasons, the Court unanimously
Declares the application inadmissible.
Santiago QuesadaJosep Casadevall
RegistrarPresident
Full & Egal Universal Law Academy