THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 30946/02
by Marija MLAKAR
against Slovenia
The European Court of Human Rights (Third Section), sitting on 12 December 2006 as a Chamber composed of:
MrJ. Hedigan, President,
MrB.M. Zupančič,
MrC. Bîrsan,
MrV. Zagrebelsky,
MrsA. Gyulumyan,
MrDavid Thór Björgvinsson,
MrsI. Ziemele, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged on 2 August 2002,
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
1. The applicant was born in 1933 and lives in Fram.
2. She and her siblings inherited some real estate from their parents.
1. Non-contentious proceedings
3. On 19 September 1991 the applicant and her sister J.M. instituted non-contentious civil proceedings (nepravdni postopek) in the then Maribor Basic Court, Maribor Unit (Temeljno sodišče v Mariboru, Enota v Mariboru) against their sister O.K., seeking division of the inherited property.
On 24 April 1992 the court issued a decision dividing the property in question.
4. On 20 May 1992 the applicant and J.M. lodged an appeal, contending that the court had made a mistake while allotting different plots of land to the parties. They requested the court to correct the mistake in the judgment. O.K. cross-appealed and disputed the division of property.
On 15 June 1993 the Maribor Higher Court (Višje sodišče v Mariboru) allowed both appeals, set aside the first-instance court’s decision and remitted the case for fresh examination.
5. On 7 June 1994, after the first hearing in the re-examination proceedings was held, the Maribor Basic Court instructed O.K. to institute contentious civil proceedings (pravdni postopek) in order to establish her sole ownership over the property at issue.
6. On 20 June 1994 the applicant and J.M. appealed, claiming that the issue of ownership had already been established in contentious civil proceedings which had ended in 1987.
On 28 June 1994 the Convention took effect with respect to Slovenia.
On 28 March 1995 the Maribor Higher Court allowed the appeal and set aside the decision of 7 June 1994. The case was remitted to the first-instance court, the renamed Maribor Local Court (Okrajno sodišče v Mariboru), in order to continue the examination of the case.
7. On 9 February 1996 the court requested the applicant and J.M. to furnish new evidence, but they did not comply. Instead, they requested the continuation of the proceedings.
On 8 June 1998 the applicant and J.M. lodged preliminary written observations.
On 2 July and 22 September 1998 the court held hearings. At the latter hearing the court found that the parties’ shares in the property were not established. As a result, on 20 October 1999, the court stayed the proceedings and ordered O.K. to institute contentious civil proceedings in this respect within thirty days after the order became final.
In the meanwhile, on 12 October 1999 the applicant transferred her rights in the disputed property to her son, Drago Mlakar. It appears that on 25 October 1999, the latter petitioned the Maribor Local Court to register his name in the Land Registry (Zemljiška knjiga). His request was apparently upheld, and his name registered, on 27 March 2001.
On 29 October 1999 Drago Mlakar lodged a request for supervision which was rejected because he was not a party to the proceedings.
On 15 November 1999 the applicant lodged a request for supervision of the judge presiding over the case with the president of the court. In the letter she sent to the court, she also mentioned that she had transferred her rights over the property at issue to Drago Mlakar. The request for supervision had no effect on the way the proceedings were conducted.
On 2 March 2000 the court held a hearing and found that O.K. had not instituted contentious proceedings. O.K. was given additional fifteen days to comply with the order of 20 October 1999.
On 17 March 2000 O.K. instituted contentious civil proceedings in the Maribor Local Court against her sisters. As a result, on 3 April 2000, the court decided to stay the non-contentious proceedings until the contentious proceedings were terminated (see bellow paragraphs 13 and 14).
On 26 August 2003 the applicant informed the Maribor Local Court that the contentions proceedings were terminated.
On 25 November 2003 the court continued the non-contentious proceedings and held a hearing. The applicant informed the court, in due form, that she had transferred her rights over the property at issue to her son. As a result, Drago Mlakar replaced his mother as a party to the proceedings.
On 8 December 2003 the court held another hearing.
On 14 April 2004 the court issued a decision in the non-contentious proceedings and divided the property between Drago Mlakar and his aunts. The decision became final on 5 May 2004.
2. Contentious proceedings
8. On 17 March 2000 O.K. instituted contentious civil proceedings in the Maribor Local Court against the applicant and her sister. She claimed she was the sole owner of the property they inherited from their parents.
On 23 May 2000 the defendants replied to the claim.
On 9 November 2000 the defendants lodged preliminary written submissions.
On 28 June 2002 the applicant’s lawyer lodged preliminary written submissions and informed the court that the applicant had transferred the property at issue to Drago Mlakar. The court requested the plaintiff to amend her claim accordingly, but she failed to do so.
On 10 July 2002 the Maribor Local Court held a hearing. O.K. proposed that the court stayed the proceedings until further notice, because she needed to decide whether or not to withdraw her claim. Since the respondents agreed, the court stayed the proceedings.
On 11 October 2002 O.K. requested the court to continue the contentious proceedings. On 15 October the court issued a decision to continue the proceedings.
On 8 January and 3 March 2003 the court held hearings.
At the last hearing the court dismissed O.K.’s claims. The claim against the applicant was dismissed, because she was no longer the owner of the property. The decision became final on 26 April 2003.
9. On 5 November 2003 the applicant and J.M. instituted execution proceedings in the Maribor Local Court against O.K. for payment of the costs end expenses incurred in the contentious proceedings.
On 23 April 2004 the court allowed the petition for execution by selling O.K.’s real estate. The decision became final on 26 May 2004.
On 20 October 2004 the court requested the applicant to propose an expert to estimate the value of O.K.’s real estate before it was sold in the execution proceedings.
The execution proceedings are still pending.
COMPLAINTS
The applicant complained under Article 6 § 1 of the Convention that her right to a fair trial was violated by the excessive length of proceedings. In substance, she also complained that about the lack of an effective domestic remedy in respect of the excessive legal proceedings (Article 13 of the Convention).
THE LAWA. As to the withdrawal of marija mlakar’s application
10. The Court observes that the applicant Marija Mlakar lodged an application with the Court on 2 August 2002. On 16 April 2004 she declared that she wished to transfer to her son, Drago Mlakar, “all the rights and obligations concerning the present application.” In this respect, she also mentioned that she had transferred her property rights to her son on 12 October 1999 and that the latter had stepped into her shoes in the domestic proceedings on 25 November 2003.
11. By a letter of 3 August 2004, Drago Mlakar informed the Court that he wished to “continue the proceedings [before the Court]”, since he was also the party to the domestic proceedings.
12. Taking into consideration all the information submitted by the parties, the Court concludes that the applicant Marija Mlakar no longer wishes to pursue her application within the meaning of Article 37 § 1 (a) of the Convention.
13. Accordingly, the case, insofar as it concerns Marija Mlakar, should be struck out of the list.
B. As to the victim status of Drago Mlakar
14. The Court must first address the issue of Drago Mlakar’s entitlement to pursue the application originally introduced by his mother.
15. The Court recalls that in various cases it has taken into account the statements of close members of the applicant’s family who expressed the wish to pursue the proceedings before the Court. In X v France the parents of the applicant stepped into his shoes in the proceedings before the domestic courts, after the applicant had died. They were also allowed to pursue the application with the Court (see, e.g., X v. France, judgment of 31 March 1992, Series A no. 234-C, p. 89, § 26). Likewise, in Arsenič v. Slovenia, the applicant died in the course of the proceedings before domestic courts and the Court and was substituted by his heirs (see Arsenić v. Slovenia, nos. 22174/02 and 23666/02, §§ 15/19, 29 June 2006).
a) As to the non-contentious proceedings
16. The Court notes that in the present case Drago Mlakar replaced his mother in the impugned non-contentious proceedings before the domestic courts further to her transfer of the rights in the property in issue to him. In agreement with his mother, he is seeking leave to pursue his mother’s application before the Court.
17. The Court acknowledges the distinction between the present case, where the son wishes to take over the application lodged by his living mother, and the cases where a member of the imminent family succeeded the applicant who had died. Nevertheless, the Court, in the circumstances of the present, finds no reason to divert from the rule established in X v. France, because the applicant had been a party in the domestic proceedings. It therefore considers that the conditions for striking the case out from the list of pending cases, as defined in Article 37 § 1 of the Convention, are not met and that it must accordingly continue to examine this part of the application at Drago Mlakar’s request.
b) As to the contentious proceedings
18. 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 and the existence of a violation is conceivable even in the absence of prejudice (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, Thevenon v. France (dec.), no. 2476/02, 28 February 2006, and Gavrielidou and Others v. Cyprus (dec.), no. 73802/01, 13 November 2003).
19. The Court further reiterates that the concept of “victim” as used in Article 34 of the Convention must be interpreted autonomously and independently of domestic law concepts, such as a capacity to bring or take part in legal proceedings (Greek Federation of Customs Officers, Gialouris and others v. Greece, no. 24581/94, Commission decision of 6 April 1995, DR 81-B, p. 123).
20. The Court notes that Drago Mlakar was not, at any stage or time, a party to the impugned contentious proceedings. He neither claimed the opposite, nor did the domestic court treat him as a party. Moreover, his not taking part in these proceedings resulted in the dismissal of the O.K.’s claim.
21. In all the circumstances of the present case the Court considers that Drago Mlakar cannot claim to be a victim within the meaning of Article 34 of the Convention in respect of the complaints raised under Articles 6 § 1 and 13 of the Convention concerning the contentious proceedings.
22. In addition, as far as Drago Mlakar wishes to pursue this part of his mother’s application, the Court recalls that the complaints raised are closely linked with his mother’s personality and that Drago Mlakar himself does not have a sufficient legal interest to justify their examination on his behalf (see Nölkenbockhoff v. Germany, no. 10300/83, Commission decision of 12 December 1984, Decisions and Reports (DR). 40, p. 187, and Biç and Others v. Turkey, no. 55955/00, 2 February 2006).
Accordingly, this part of the application must rejected in accordance with Articles 34 and 35 §§ 3 and 4 of the Convention.
C. Complaints under Articles 6 § 1 and 13 of the Convention
23. The applicant complained about the excessive length of the proceedings. He relied on Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
24. In substance, the applicant further complained that the remedies available for excessive legal proceedings in Slovenia were ineffective. Article 13 of the Convention reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
a) Article 6 § 1
25. The Court reiterates that its case-law on the intervention of third parties in civil proceedings makes the following distinction: where the applicant has intervened in domestic proceedings only on his or her own behalf the period to be taken into consideration begins to run from that date, whereas if the applicant has declared his or her intention to continue the proceedings as heir he or she can complain of the entire length of the proceedings (see Cocchiarella v. Italy [GC], no. 64886/01, § 113, ECHR 2006‑...).
26. In the present case, Drago Mlakar did not replace his mother in the domestic proceedings as an heir. In fact, the substitution was the result of a legal transaction carried out inter vivos. Accordingly, the relevant period started only on 25 November 2003, the day Drago Mlakar’s mother informed the court that she had transferred the rights in property at issue to Drago Mlakar (see, a contrario, Cocchiarella v. Italy, cited above). This period ended on 5 May 2004, the day the decision of the Maribor Local Court became final. The relevant period therefore lasted five months and ten days for one level of jurisdiction.
27. Having examined all the material submitted to it, and having regard to its case-law on the subject, the Court considers that in the instant case the length of the non-contentious proceedings, which just exceeded five months, is not long enough to raise any issues under Article 6 § 1 (see Pelli v. Italy (dec.), no. 19537/02, 13 November 2003) .
It follows that Drago Mlakar’s complaint is manifestly ill-founded and must be declared inadmissible n accordance with Article 35 §§ 4 and 5 of the Convention.
b) Article 13
28. The Court recalls that Article 13 requires the State to provide an effective legal remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief (see Sürmeli v. Germany [GC], no. 75529/01, § 98, 8 June 2006). Considering that the complaint about the excessive length of the proceedings is inadmissible as manifestly ill-founded, the Court finds that the applicant did not have an arguable claim that his right to an effective remedy within the meaning of Article 13 was violated. Therefore, this claim does not reveal any appearance of violation of this provision.
Accordingly, this complaint is manifestly ill-founded and must be declared inadmissible in the meaning of Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to strike the case out of the list as far as it concerns Mrs Marija Mlakar;
Declares the application inadmissible as far as it concerns Mr Drago Mlakar.
Vincent BergerJohn Hedigan
RegistrarPresident
Full & Egal Universal Law Academy