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THE FACTS

The applicant, Mr Jean-Baptiste Thévenon, was a French national who was born in 1917 and lived in Saint-Priest (Rhône). He was represented before the Court by Mr P. Bernardet, a sociologist residing in La Fresnaye-sur-Chedouet. On 16 August 2004 the latter informed the Registry of the applicant's death. According to an acte de notoriété (document attesting to a matter of common knowledge) drawn up by a notary on 11 July 2004, the applicant had died on 3 May 2002 without leaving any descendants, whether legitimate, illegitimate or by adoption, or any ascendants. He had made a will in which Ms D. Yahi was appointed as his universal legatee.

The respondent Government were represented by Mrs E. Belliard, Director of Legal Affairs at the Ministry of Foreign Affairs.

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

On 28 June 1999 the mayor of Lyons requisitioned a doctor for the purposes of examining the applicant, to establish whether his behaviour revealed a manifest mental disorder and presented imminent danger for his safety or for that of others. The doctor drew up a certificate stating that the applicant had a behaviour disturbance which required medical treatment.

The mayor of Lyons formally requested the director of Saint-Jean de Dieu Specialist Hospital to take the applicant into his care.

On the basis of a 24-hour certificate issued by a doctor, the prefect of the département of Rhône made an order for the applicant's compulsory admission to hospital.

That measure was extended for six months on 27 April 2000 and again on 26 October 2000. On 29 October 2000 the applicant was conditionally discharged from hospital. His readmission was ordered by the prefect on 15 November 2000. That measure was subsequently extended by order of the prefect on 26 April 2001.

On the basis of a fresh medical certificate, the applicant's compulsory admission to hospital was revoked by order of the prefect on 29 May 2001.

On 27 June 2000 the applicant brought proceedings before the Lyons tribunal de grande instance against the health and social services department of the département of Rhône and against the prefect, requesting the court to find that the order of 27 April 2000 extending his detention in hospital was null and void, that this decision had lacked grounds and that he could leave the hospital as soon as judgment was given. He also sought an award of 20,000 French francs in respect of non-pecuniary damage.

The applicant's lawyer was served with two notices to file pleadings, with time-limits of 11 October 2001 and 8 November 2001, but failed to comply.

An order concluding the preparation of the case was given on 8 November 2001, fixing 7 February 2002 as the date of the hearing. On that date the court set aside the order concluding preparation and requested information on the applicant's situation.

In a letter of 21 May 2002 the applicant's lawyer informed the court that his client had died on 3 May 2002.

On 6 June 2002 the Lyons tribunal de grande instance made an order striking the case out of its list on account of the applicant's death.

COMPLAINTS

1.  The applicant complained under Article 5 § 2 of the Convention that he had not been informed promptly of the reasons for his medical confinement.

2.  He also submitted that he had been the victim of a violation of Article 5 § 4 of the Convention on account of the length of the proceedings before the tribunal de grande instance.

3.  He further complained of the compulsory treatment to which he had been subjected, relying on Article 8 of the Convention.

4.  Lastly, the applicant submitted that Article 13 of the Convention, taken in conjunction with those other three provisions, had also been breached.

THE LAW

The Court must first address the question of Ms Yahi's right to pursue the application originally lodged by the applicant, who died in May 2002.

Ms Yahi stated that she wished to pursue Mr Thévenon's application before the Court. She relied in particular on the applicant's will, made out on 27 July 1998, by which she had been appointed as his universal legatee. She observed that the Court had authorised heirs to pursue cases before it. She referred in particular to Marie-Louise Loyen and Bruneel v. France (no. 55929/00, 5 July 2005), in which a wife and daughter had been authorised to pursue the proceedings brought by their husband and father before his death. She added that whilst she was not related to Mr Thévenon she had been a close friend, having known him for over twenty years, and that it was for this reason that he had appointed her as his universal legatee. She also referred to Elsholz v. Germany ([GC], no. 25735/94, § 43, ECHR 2000-VIII), in which the Court had reiterated that the notion of family was not confined to marriage-based relationships.

She concluded that she was the only source of “family” support that Mr Thévenon had had, including during his confinement, and that she should thus be entitled to pursue the proceedings before the Court.

The Government pointed out that Ms Yahi's locus standi had to be examined in connection with the right of individual application under Article 34 of the Convention. They added that the Court had always found that a close relative could claim to be the victim of a violation of Article 2 in the event of a death which engaged the responsibility of the respondent State. However, for the relative to show that he or she was entitled to rely on the rights of a deceased person in proceedings before it, the Court had emphasised the importance of close family ties. It had thus found in Sanles Sanles v. Spain ((dec.), no. 48335/99, ECHR 2000-XI) that the applicant was not entitled to rely, on behalf of the deceased person, on rights under Articles 2, 3, 5, 8, 9 and 14 of the Convention, as those rights belonged to the category of non-transferable rights. The Government pointed out that, for heirs to pursue proceedings brought by an applicant who had subsequently died, two cumulative conditions had to be satisfied: the heir had to be a close relative and the application had to be based on transferable rights.

The Government did not dispute Ms Yahi's capacity as universal legatee of Mr Thévenon, who had died without any surviving descendants or ascendants. They considered, however, that she could not claim to be a “close relative” within the meaning of the Court's case-law, since she was not related in any way to the original applicant. Moreover, the application concerned rights under Articles 5 and 8 of the Convention that were not transferable.

The Government concluded that Ms Yahi did not have locus standi to pursue Mr Thévenon's application, which accordingly had to be struck out of the list.

The Court points out that, in a number of cases where the applicant has died during the proceedings, it has taken into account the intention of heirs or close relatives to pursue those proceedings (see, for example, Deweer v. Belgium, 27 February 1980, §§ 37-38, Series A no. 35; X v. the United Kingdom, 5 November 1981, § 32, Series A no. 46; Vocaturo v. Italy, 24 May 1991, § 2, Series A no. 206-C; G. v. Italy, 27 February 1992, § 2, Series A no. 228-F; Pandolfelli and Palumbo v. Italy, 27 February 1992, § 2, Series A no. 231-B; X v. France, 31 March 1992, § 26, Series A no. 234-C; Raimondo v. Italy, 22 February 1994, § 2, Series A no. 281-A; Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000-XII; and contrast Scherer v. Switzerland, 25 March 1994, §§ 31-32, Series A no. 287). However, there is nothing to show that the same position obtains in the present case.

Whilst it is not in dispute that the applicant left a will appointing Ms Yahi as his universal legatee, it cannot be said in the present case that it is one of the applicant's close relatives who wishes to pursue the application before the Court. Ms Yahi was in fact a friend of the applicant, to whom she does not claim to be either closely or distantly related. Moreover, in French law a universal legatee is not actually an heir.

As regards Marie-Louise Loyen and Bruneel to which Ms Yahi referred, the Court points out that the applicants in that case, who were the widow and daughter of Mr René Loyen, complained on his behalf of a violation of Article 6 § 1 and Article 13 of the Convention on account of the length and unfairness of domestic proceedings, and of a violation of Article 5 § 5 of the Convention. The Court considered that the applicants, as close relatives and heirs, had a legitimate interest which entitled them to complain, on behalf of their late husband and father, of a violation of Article 6 § 1 and Article 13 of the Convention (see Marie-Louise Loyen and Bruneel, cited above, § 29).

In a similar case where the applicants had lodged an application after the death of the victim (see Fairfield and Others v. the United Kingdom (dec.), no. 24790/04, ECHR 2005-VI), the Court reiterated that the existence of a victim who was personally affected by an alleged violation of a Convention right was indispensable for putting the protection mechanism of the Convention into motion, although this criterion was not to be applied in a rigid and inflexible way.

Having regard to the circumstances of the case, the Court is bound to find it of decisive importance that the person wishing to pursue the application is neither a close relative nor an heir of the applicant, and that the rights guaranteed by Articles 5 and 8 of the Convention are eminently personal and non-transferable (see Sanles Sanles, cited above).

The Court accordingly finds that the conditions in which a case may be struck out of its list, as provided in Article 37 § 1 of the Convention, are satisfied in the present case.

Accordingly, it is appropriate to discontinue the application of Article 29 § 3 of the Convention and to strike the case out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

THÉVENON v. FRANCE DECISION


THÉVENON v. FRANCE DECISION