FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 21466/03
by Elena DIMITROVSKA
against the former Yugoslav Republic of Macedonia
The European Court of Human Rights (Fifth Section), sitting on 30 September 2008 as a Chamber composed of:
Peer Lorenzen, President,
Rait Maruste,
Volodymyr Butkevych,
Renate Jaeger,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 2 June 2003,
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, Mrs Elena Dimitrovska, is a Macedonian national who was born in 1958 and lives in Skopje. She was represented before the Court by Mr S. Filipov, a retired lawyer from Skopje. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 15 September 1997 the applicant's husband, Mr D., brought a civil action against the Embassy of the Russian Federation (“Embassy”) in the former Yugoslav Republic of Macedonia claiming salary arrears and other employment-related allowances.
On 3 April 1998 the Skopje Court of First Instance rejected Mr D.'s claim as falling outside its competence. That decision was confirmed by the Skopje Court of Appeal of 14 October 1998. On 10 June 1999 the Supreme Court granted Mr D.'s appeal on points of law and remitted the case for re-examination. It held that the Macedonian courts had been competent to decide the case, in particular as it had involved obligations enforceable in the State.
On 18 October 2002 the Skopje Court of First Instance dismissed Mr D.'s claim. On 13 November 2002 he appealed.
On 23 November 2002 Mr D. died.
On 4 March 2003 the Skopje Court of Appeal dismissed Mr D.'s appeal.
On 2 April 2003 the applicant requested the public prosecutor to lodge an application for the protection of legality (барање за заштита на законитоста) with the Supreme Court. On 23 May 2003 the public prosecutor informed the applicant that there were no grounds for using that remedy.
COMPLAINTS
The applicant complained under Article 6 of the Convention that the proceedings had lasted unreasonably long and that the courts had not been impartial and independent. She also complained under Article 13 that the Court of Appeal had dismissed Mr D.'s appeal without examining its grounds.
THE LAW
The Court recalls that pursuant to Article 34 of the Convention it may receive applications from any person, non-governmental organisation or group of individuals 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 Court has considered whether the absence of observations from the Government on the point of the applicant's victim status can affect its position. However, it must determine that issue as it concerns a matter of competence which marks the personal limits of the supervision carried out by the Court.
In this connection, it observes that the existence of a victim of a violation, that is to say, an individual who is 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, mechanical and inflexible way throughout the proceedings (see Karner v. Austria, 40016/98, § 25, ECHR 2003-IX).
The Court, through its jurisprudence, has developed various criteria to determine whether an applicant can be considered to have victim status after the death of the “direct” victim. It normally permits the next of kin to pursue an application provided he or she has sufficient interest, where the original applicant has died after the introduction of the application before the Court (see Malhous v. the Czech Republic (dec.), no. 33071/96, ECHR 2000-XII). The Court notes, however, that the present case must be distinguished from those cases which were introduced before this Court by the applicants themselves and only continued by their relatives after their subsequent death (see, a contrario, Sulejmanov v. the former Yugoslav Republic of Macedonia (dec.), no. 69875/01, 18 September 2006).
In this connection, it notes that Mr D. died on 23 November 2002 and the present application was lodged with the Court on 2 June 2003 by his wife, more than six months after his death. The proceedings in question were brought by Mr D. His appeal was awaiting consideration by the Court of Appeal when he died. After Mr D.'s death, the applicant unsuccessfully requested the public prosecutor to lodge with the Supreme Court a request for the protection of legality. For the reasons detailed in the Lepojić case (see Lepojić v. Serbia, no. 13909/05, § 54, 6 November 2007), which likewise apply to the present case, that remedy cannot be regarded as effective within the meaning of Article 35 § 1 of the Convention. The Court considers therefore that the applicant cannot be regarded as having been a party to the proceedings complained of (see, a contrario, Janeva v. the former Yugoslav Republic of Macedonia (dec.), no. 58185/00, 23 October 2001, where the applicant stepped into the proceedings instituted by her late husband at first level).
Where the proposed application primarily concerns a complaint under Article 6 of the Convention, as in the present case, the Court interprets the concept of victim autonomously and irrespective of domestic concepts such as those concerning an interest or capacity to act (see Sanles Sanles v. Spain (dec.), no. 48335/99, ECHR 2000‑XI). In Georgia Makri and others v. Greece (dec.), no. 5977/03, 24 March 2005, the Court held that relatives of a deceased person could not be considered victims in respect of complaints concerning, inter alia, Article 6 - length of proceedings - since they had not participated in their own name nor had they intervened as heirs in the domestic proceedings after the direct victim's death. The Court sees no reasons to deviate from that approach in this case. In addition, it is clear from the submissions of the applicant that she did not maintain that she had been personally affected by the alleged violations - neither by the length of the proceedings or the alleged unfairness. Finally, the Court considers that there exists no general interest which necessitates proceeding with the consideration of these complaints (see, mutatis mutandis, Biç and Others v. Turkey, no. 55955/00, § 23, 2 February 2006).
As a result, the Court concludes that the applicant in the instant case does not have the requisite standing under Article 34 of the Convention.
Consequently, the case must be rejected as being incompatible ratione personae with the provisions of the Convention in accordance with Article 35 §§ 3 and 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy