Hilmar Kristinn ADOLFSSON and Others v Iceland - 14890/06 [2009] ECHR 701 (24 March 2009)

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Application no. 14890/06
by Hilmar Kristinn ADOLFSSON and Others
against Iceland

The European Court of Human Rights (Fourth Section), sitting on 24 March 2009 as a Chamber composed of:

Nicolas Bratza, President,
Giovanni Bonello,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Ledi Bianku,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

The applicants, (1) Mr Hilmar Kristinn Adolfsson, (2) Mrs Ragnheidur Hauksdóttir and (3) Mr Sveinbjörn Egill Hauksson are Icelandic nationals who were born respectively in 1935, 1948 and 1954. The first and third applicants reside in Reykjavík and the second applicant in Kópavogi, Iceland. They are represented before the Court by Mr Einar Gautur Steingrímsson, a lawyer practising in Reykjavík.

The Icelandic Government were represented by their Acting Agent, Mrs Ragna Árnadóttir, of the Ministry of Justice and Ecclasiastical Affairs.

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

The applicants were the direct heirs of Mrs Margrét þorsteinsdóttir (“M.”), who was born on 29 August 1903 and who died on 22 February 2000.

M. had stated in her will, made in 1971 that all her property was to be divided after her death equally between her brother, X, and a woman named Hulda Sveinbjörnsdóttir (“H.”). It was also stated that if X were to die before M, all her property should pass to H., and if she was no longer alive, to her children and grandchildren. There were no blood ties between M. and H. who had been married to M.’s stepson Y. Both Y. and his father Z. had died before 1971 when M. made her will.

The second and third applicants are the children of H. and the first applicant is the husband of Svava Hauksdóttir another child of H., sister of the second and third applicants, who is now deceased.

M. was hospitalised in September 1991 on account of her mental condition and her inability to take care of herself. She was diagnosed as suffering from Dementia Senilis 290.0.

In the meantime, in February 1993, Mr G.S., Attorney, and Mr G.K. and Mrs K.P. were convicted of embezzlement of M.’s assets during the years 1991-1992.

As from 17 July 1992 M. was, at the request of H., declared incapable of managing her own financial affairs. On 20 July 1992 the District Commissioner of Reykjavík (hereinafter referred to as “the Commissioner”) appointed S.R. as M.’s legal trustee. At that time information about various financial irregularities involving S.R. was on public record, including a number of warrants of execution issued against his company (1985-1987), a petition for bankruptcy and liquidation of the company to cover preferential claims amounting to 25,000,000 Icelandic Crowns (ISK) (1989), a conviction and three months’ conditional prison sentence for embezzlement of employees’ salaries (1990), plus a number of petitions for bankruptcy (1990 and onwards).

On 17 March 1998 the Commissioner requested S.R. to provide yearly reports regarding decisions he had taken on M.’s behalf. Thereafter, in the absence of any such reports, renewed requests were made on 9 June 1998, 3 May 1999 and 2 June 2000.

On 9 October 2002 S.R. was convicted of embezzlement of M.’s assets, in respect of amounts totalling ISK 7,908,943 (approximately 90,000 euros) and was sentenced to 18 months’ imprisonment.

On 1 April 2004 the first applicant’s deceased wife and the second and third applicants instituted civil compensation proceedings against the Commissioner and the State, on the ground that M. had sustained damage as a result of the appointment, as a legal trustee, of a person who had a very dubious past. They claimed that upon M.’s death this claim had passed to them as M.’s heirs.

On 11 January 2005 the Reykjavík District Court found in favour of the respondent and rejected the plaintiffs’ claim, finding no ground for imposing strict liability, nor any basis for finding negligence since the Commissioner had had no reason to believe that S.R. was unfit to be a custodian when he was appointed.

According to the summary of facts contained in the District Court’s judgment, the plaintiffs were granted permission to carry out a private division of M.’s estate on 14 April 2000 and completed their division of the estate in September 2001. In its conclusions, the District Court held inter alia that the estate at the time of M.’s death could not be considered a party to the case, as the division of the estate had been concluded in September 2001.

On 11 April 2005 the Supreme Court upheld the lower court’s judgment, giving the following reasoning:

“The Supreme Court concurs with the District Court that in order for the defendant to be held liable for the losses suffered by the [applicants] and caused by the guardian, it must be demonstrated that this was due to neglect on the part of the defendant’s employees. The circumstances which resulted in the appointment of the guardian are not entirely clear. Nevertheless, it appears to be established that the person who was appointed guardian had taken the initiative in having the testator deprived of her financial competence; it appears that there was reason for doing so, and that the mother of the appellants, Ragnheiður and Sveinbjörn, was consulted on this; she has since died, but at the time she was M.’s sole heir. At the time that the guardian was appointed, the estate of a limited company of which he was in charge was the subject of liquidation proceedings, and sentence had been passed on him in the Hafnafjörður and Garðir Criminal Court for not having transferred money which the company had collected from its employees. On the other hand, there is no evidence to suggest that he was not competent to manage his own financial affairs and in other respects he met, formally, the conditions for being appointed as a guardian according to section 29 of the then applicable Legal Competence Act, No. 68/1984. It has not been established that the District Commissioner should have suspected that he would discharge his duties of financial management badly. With the introduction of the Legal Competence Act, No. 71/1997, great changes were made in the legal provisions and practice regarding reporting by guardians and the supervision of their work. Repeated attempts by the Commissioner’s employees to have the guardian comply with his statutory duties under section 63 (3) of that Act to report, straightaway in the early part of 1998, produced no result. It can be deduced from the ... District Court’s judgment of 14 April 2002 that by that date most of the damage had been done. From the above, it follows that even if the application of the law by the Commissioner’s office should have been more efficient, it has not been established that the Commissioner or his employees violated their official duties and so brought compensatory liability on the defendant. In the light of these considerations, the District Court’s judgment must be upheld.”

This provision has been understood as placing a prohibition on any type of disposal, whether by assignment, mortgage or other deed, of an inheritance which has not yet devolved on the recipient. It also follows from this provision that an inheritance that has not yet devolved on the recipient cannot be the object of execution measures carried out against the person who expects to receive the inheritance. The rule reflects accepted academic views on the concept of “property” in Icelandic law. One of the foremost conditions for any right to be considered “property” is that it is both unconditional and active so that the owner in question can dispose of it as if it were his property. This provision of the Inheritance Act confirms these views regarding a future inheritance.

The applicants, on their own behalf and on behalf of the deceased M., complained under Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention that the authorities of the respondent State had unjustifiably deprived M. of her right to handle her own financial affairs and had appointed an unsuited trustee for M. resulting in financial losses.

A. Alleged violations of Article 8 of the Convention and Article 1 of Protocol No. 1 in respect of M.

The Court notes that the applicants pursued their complaints under Article 8 of the Convention and Article 1 of Protocol No. 1, not only on their own behalf (dealt with in sections “B” and “C” below), but also on behalf of M. However, the latter had died several years before the institution of the domestic proceedings and many years before the lodging of the present application under the Convention. She does not appear to have ever brought an application in relation to those proceedings (compare Malhous v. the Czech Republic (dec.), no. 33071/96, ECHR 2000 XII).

Furthermore, nothing has been brought to the Court’s attention to indicate that the applicants have authority to pursue the present application on M.’s behalf.

This part of the application is therefore incompatible ratione personae and must be declared inadmissible under Article 34 of the Convention.

B. Alleged violation of Article 8 of the Convention in respect of the applicants

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The applicants complained that the authorities of the respondent State had deprived M. of her right to handle her own financial affairs and had, due to the lack of proper checks, appointed as a trustee for M. a person, S.R., who had been clearly unsuited to be entrusted with such a task. Amongst other things, one year and a half before his appointment, he had been convicted and sentenced for embezzlement. As a result, M. had sustained substantial financial losses, as evidenced by the fact that the trustee so appointed had also been convicted and sentenced for the embezzlement of her assets. Financially, M. would have fared far better if no trustee had been appointed at all. Notwithstanding these circumstances, the Icelandic courts had rejected the applicants’ compensation claim against the State. This entailed a breach of their right to respect for private life under Article 8 of the Convention.

The Government disputed this complaint and invited the Court to declare it inadmissible as the applicants could not be considered victims of a violation of Article 8 of the Convention.

The Court notes that the applicants have not claimed that there existed close social ties between them and M. and they had no blood ties to her (compare Merger and Cros v. France, no. 68864/01, § 46, 22 December 2004; Marckx v. Belgium, 13 June 1979, § 52, Series A no. 31). They could therefore not claim in their own right that they had been victims of any failure to respect their private or family life within the meaning of Article 8 of the Convention (see Merger and Cros, cited above, § 47), which provision is therefore inapplicable. This part of the application is therefore incompatible ratione materiae with Article 8 of the Convention and must be declared inadmissible under Article 35 §§ 3 and 4 of the Convention.

C. Alleged violation of Article 1 of Protocol No. 1 in respect of the applicants

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The Government disputed this complaint and requested the Court to declare it inadmissible as the applicants could not be considered victims of the matter complained of.

The Court must first determine whether Article 1 of Protocol No. 1 is applicable in the instant case. It reiterates that this provision protects “possessions”, which can be either “existing possessions” or assets, including claims, in respect of which the applicant can argue that he or she has at least a “legitimate expectation” of obtaining effective enjoyment of a property right. It does not, however, guarantee the right to acquire possessions (see J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd v. the United Kingdom [GC], no. 44302/02, § 61, ECHR 2007 ... Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004 IX), whether on intestacy or through voluntary dispositions (see Merger and Cros v. France, no. 68864/01, § 37, 22 December 2004). Where a proprietary interest is in the nature of a claim, the person in whom it is vested may be regarded as having a “legitimate expectation” if there is a sufficient basis for the interest in national law, for example where there is settled case-law of the domestic courts confirming its existence (see Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 65, ECHR 2007 ...; and Kopecký, cited above, § 52). No legitimate expectation can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and the applicant’s submissions are subsequently rejected by the national courts (Anheuser-Busch Inc., cited above, ibidem; Kopecký, cited above, § 50).Where there is a dispute as to whether an applicant has a property interest which is eligible for protection under Article 1 of Protocol No. 1, the Court is required to determine the legal position of the applicant (see J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd, cited above, ibidem; Beyeler v. Italy [GC], no. 33202/96, § 99, ECHR 2000 I).

Turning to the particular circumstances of the case, the Court notes that the applicants do not allege any failure on the part of the respondent State to recognise in law or in practice their capacity to inherit from M (compare Nacaryan et Deryan c. Turquie, n^os 19558/02 et 27904/02, § 25, 8 January 2008). Their complaint appears to concern the reduction in their entitlements allegedly resulting from the embezzlement of M.’s assets while she was alive by the legal trustee, S.R., whose appointment the applicants challenged.

Under the relevant domestic law, the applicants’ inheritance rights under M.’s will materialised at the moment of, and by the very fact of, her death. By virtue of section 27 of the Inheritance Act, they had no right to dispose of any inheritance that they expected to receive from M.; in other words, they had no right to dispose of M.’s possessions while she was alive but only of any such inheritance as they received from her according to her will after her death. The fulfilment of their rights as beneficiaries according to M.’s will was dependent on the assets and debts that she left on her death. No compensation claim had been made by M. or on her behalf while she was alive or on behalf of the estate after her death and before it was concluded in 2001. As observed by the District Court, the estate could not be considered a party to the case before it which, it should be reiterated, had been lodged in 2004.

Against this background, it cannot be said that the disputed appointment of S.R. as M.’s legal trustee in 1992 with the unfortunate consequences it had on the management of M.’s estate while she was alive, affected the applicants’ existing possessions.

The Court is further unable to accept that the applicants had a sufficiently established proprietary interest to which a “legitimate expectation” could be attached. In so far as they claimed that the Icelandic State was liable to pay them compensation for losses incurred by M. on account of the disputed appointment, they did not have a “possession” within the meaning of the first sentence of Article 1 of Protocol No. 1. Therefore the guarantees of that provision do not apply to the present case (Kopecký, cited above, § 50).

It follows that the applicants’ complaint under Article 1 of Protocol No. 1 must be rejected in accordance with Article 35 § 3 of the Convention as being incompatible, ratione materiae, with the provisions of the Convention (see Malhous, cited above).

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You are here: BAILII >> Databases >> European Court of Human Rights >> Hilmar Kristinn ADOLFSSON and Others v Iceland - 14890/06 [2009] ECHR 701 (24 March 2009) URL: http://www.bailii.org/eu/cases/ECHR/2009/701.html Cite as: [2009] ECHR 701