CONCURRING OPINION OF JUDGE FURA

The Chamber reached the conclusion that there had been a violation of Article 6 of the Convention in this case because of the excessive length of the proceedings , rejecting the Government ’ s argument that the applicant had not been a victim. In so doing the chamber applied the established case-law of the Court where it has been found that the sole owner of a limited company is entitled to bring the application in his own name , even if no exceptional reasons preventing the company to bring the case are alleged to exist (see the case-law cited in paragraphs 25 and 26 of the judgment and Gubiyev v . Russia , no. 29398/03 , paragraphs 53-54 , 19 July 2011 , not final). Even though I accept that the case-law exists I am not sure it is a good line of case-law. Maybe it ought to be reconsidered.

I do not think it is a proper order that an applicant can bring a case before the Court without having been a party to the proceedings on the domestic level , except for in exceptional cases. Allowing this would run counter to the principle of subsidiarity , in my opinion and in theory you could have two parallel complaints filed.

In the case at hand the company of which the applicant was the sole owner was a party to the domestic proceedings the Court found to be excessively long. I fail to see why the company could not bring the complaint before our Court since it is not alleged that it was incapable of doing so because of for example liquidation or bankruptcy. I also fail to see why an individual who creates a limited company in order , amongst other things , to avoid personal liability for debts , should not be required to respect the formalities attaching to that creation – for example that it is the company which acts in respect of legal proceedings.

I have a lot of sympathy for the argument developed by the Government referred to in paragraph 23 of the judgment stating that “any compensation awarded to the owner would have an effect only in his personal sphere and would not mean anything for the company , which would theoretically also cause detriment to the company ’ s creditors. While the Court ’ s position in Ankarcrona v . Sweden could perhaps be acceptable in respect of unlimited companies , it could not be accepted in respect of companies with limited liability for the owners.”

So the main rule ought to be that there is no piercing of the corporate veil , unless there are good reasons. This is where I find the application of the said case-law to the circumstances of this case problematic. The applicant lodged the complaint in his own name claiming to be the victim of a violation without even alleging that there was any difficulty let alone any obstacle for the company to apply to the Court. While accepting that there can be cases in which there exists a conflict of interest between the company as such and the owner and where there would be a necessity to recognize the standing of the owner as an applicant in his own right , separate from that of the company , I fail to see the need for it in a case like the one before us. For me it is simply not enough that there are no competing interests and/or differences of opinion between the owner and the company , in addition there has to be a need to acknowledge victim status to the owner. I am not convinced that the re is such a need in this case.

[*] approximately 3 , 700 euros