“When the Birches Up There are Greening”

The European Court of Human Rights has recently found that application in the case of Marta Jelševar and others v Slovenia (47318/07) concerning the alleged violation of Article 8 of ECHR is manifestly ill­-founded and must declared inadmissible. The facts of the case were as follows :

In 1998, B.M.Z. self-published a novel titled ‘Ko se tam gori olistajo breze’ (When the Birches Up There are Greening) and subtitled ‘From the Golden Tales of Depala Vas’, in which she described the life story of a woman from the Slovenian countryside who emigrated to the United States of America at the beginning of the 20th century, married a fellow Slovenian by the name of Brinovc and subsequently returned home to take over the family farm, trade in fruit and vegetables and raise a family. The main character, Rozina, was depicted as a lively, ambitious and resourceful woman. However, the book also described that she used sex to get her way with her husband, brewed and sold illegal alcohol during Prohibition in the United States, and valued money over her children. Rozina was a devoted Catholic, often conversing with the Virgin Mary, and the book concluded with the depiction of her death as a surreal allegory of her assumption into heaven, assisted by the Virgin Mary. (para. 4 of the judgment)

The applicants claimed that the novel violated their right to respect for their private and family life as it seemingly portrayed the scenes from their family life. More specifically, they claimed that the writer, Breda Smonikar, overstepped her freedom of artistic expression. The Court concluded that :

finds it important to note, as did the Constitutional Court, that the book at issue was written not as a biography but as a work of fiction and, as such, would not be understood by most readers as portraying real people. In this connection, the Court would emphasise that even the applicants’ family acquaintances, which perceived certain similarities between the literary characters and, in particular, the applicants’ mother, mostly denied the possibility that the character in the book represented a truthful depiction of the actual person concerned (footnotes omitted, para. 38).

This decision was as straightforward as it gets. Artistic expression protects fictional works not illustrating scenes from real life. What is surprising, that it took the European Court more than 6 years to deliver it taking into consideration that the Constitutional Court of Republic of Slovenia delivered its decision already on 12 October 2007.

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