CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 septembre 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                           Application No. 31534/96                       by Wilibald Rudolf MATTER                       against the Slovak Republic          The European Commission of Human Rights (Second Chamber) sitting in private on 16 September 1997, the following members being present:              Mrs.   G.H. THUNE, President            MM.    J.-C. GEUS                  G. JÖRUNDSSON                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA                  A. ARABADJIEV              Ms.    M.-T. SCHOEPFER, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 7 August 1993 by Wilibald Rudolf MATTER against the Slovak Republic and registered on 20 May 1996 under file No. 31534/96;        Having regard to :   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      17 January 1997 and the observations in reply submitted by the      applicant on 8 February 1997;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a Slovak national born in 1925.   He is disabled and resides in Cadca.        The facts of the case, as submitted by the parties, may be summarised as follows.   A.    Particular circumstances of the case        In 1976 the applicant's legal capacity was restricted.   In 1983 the Cadca District Court (Okresny súd - "the District Court") deprived the applicant of legal capacity entirely.        On 18 February 1987 the District Court, at the applicant's initiative, introduced proceedings pursuant to Section 81 of the Code of Civil Procedure (see "The relevant domestic law" below) with a view to determining whether legal capacity could be restored to the applicant.   In 1989 the District Court   dismissed the applicant's request.   In 1990 the Supreme Court (Najvyssí súd) quashed the aforesaid decision and sent the case back to the District Court.   The latter appointed an expert with a view to examining the applicant's mental health.        On 16 April and 20 August 1991 the expert informed the District Court that the applicant had refused to be examined by him as an out- patient.   The expert expressed his opinion that an objective assessment of the applicant's mental health could only be carried out by examining him in a mental hospital.        On 1 April 1992 the District Court ordered that the applicant should be examined in a mental hospital pursuant to Section 187 para. 3 of the Code of Civil Procedure.   The District Court noted that the applicant had refused to undergo an out-patient examination and held, with reference to the expert's opinion, that the applicant's examination in a mental hospital was necessary in order to establish whether legal capacity could be restored to him.        The District Court charged the expert to establish whether the applicant's state of health was the same as at the moment when he had been deprived of legal capacity and to express his opinion whether the applicant's state of health changed to such an extent that legal capacity could be restored to him entirely.        On 30 November 1992 the Banská Bystrica Regional Court (Krajsky súd) dismissed the applicant's appeal against the District Court's decision of 1 April 1992.   It found that the Cadca Local Office (Obvodny úrad), i.e. the administrative authority which had custody of the applicant, had consented to his examination in a mental hospital, and that the applicant was not entitled to lodge an appeal.        In its aforesaid decision the Banská Bystrica Regional Court recalled that the District Court had decided to start the proceedings pursuant to Section 81 of the Code of Civil Procedure following the applicant's initiative and that the District Court considered the applicant's examination in a hospital necessary within the meaning of Section 187 para. 3 of the Code of Civil Procedure as the applicant had refused to be examined by an expert.      The Regional Court further stated that the applicant had appealed against the District Court's decision as he "disagreed with an examination in a mental hospital and argued that he had been entirely deprived of his legal capacity without justification".        On 13 May 1992 the District Court invited the applicant to report, on 21 May 1992, to the mental hospital in Sucany.   The applicant was informed that if he failed to appear he could be brought there pursuant to Section 52 para. 1 of the Code of Civil Procedure. The applicant did not come to the hospital.   On 3 May 1993 the District Court invited the applicant again to report, on 12 May 1993, to the mental hospital.   The applicant was informed that he could be brought to the hospital if he failed to appear.   The applicant did not comply with the court's request.        On 19 August 1993 two policemen came to the applicant's flat. They presented an order by the President of the District Court to the applicant and brought him to the hospital.   After a short initial period of resentment the applicant started co-operating with the expert.   The examination was completed and the applicant was released from the hospital on 2 September 1993.        On 23 November 1993 the District Court restricted the applicant's legal capacity in that he was not entitled to act before public authorities on his own, to conclude contracts and assume obligations in writing and to have a regular occupation.   The court referred to the expert's report of 29 October 1993 according to which the applicant, who had undergone a brain operation in 1984 and had had several heart attacks, suffered from paranoid psychosis and from an organic psychosyndrome.        On 14 September 1993 the applicant complained to the Constitutional Court (Ústavny súd) that, inter alia, he had been forcibly examined in a mental hospital and that various authorities had dealt with his submissions with unreasonable delays.   In his letter the applicant stated that on 1 April 1992 the District Court had decided, against his will, to appoint as expert in the applicant's case the director of the mental hospital in Sucany, that on 30 November 1992 the Banská Bystrica Regional Court had dismissed his appeal against this decision, and that on 19 August 1993 he had been brought to the hospital by two armed policemen.        On 20 September 1993 the applicant supplemented his submissions. On 9 December 1993 a judge of the Constitutional Court requested the applicant to supplement his submissions in accordance with the relevant provisions of the Constitutional Court Act.        The applicant failed to supplement his submissions within the time-limit set for this purpose, and on 20 January 1994 the Constitutional Court rejected the petition on the ground that it did not contain the information provided for in Section 20 of the Constitutional Court Act.        The applicant appealed against the District Court's decision of 23 November 1993 and requested that legal capacity should be restored to him entirely.   On 30 August 1994 the Supreme Court rejected the applicant's request that his case should be transmitted to the Bratislava City Court (Mestsky súd).   On 6 March 1995 the Supreme Court dismissed the applicant's request for exclusion of the Banská Bystrica Regional Court's judges dealing with his appeal.        On 30 October 1995 the Banská Bystrica Regional Court quashed the first instance decision and sent the case back to the District Court as the latter had not heard the expert who had examined the applicant.        On 12 and 17 January 1996 respectively the Ministry of Justice and the President of the Banská Bystrica Regional Court informed the applicant that his complaints about delays in the proceedings were transmitted to the President of the District Court.   On 23 January 1996 the latter informed the applicant that as he lacked legal capacity, he could only transmit his submissions to the court through the intermediary of his guardian.        On 5 February 1996 the District Court decided to obtain a second expert opinion on the applicant's mental health and adjourned the proceedings sine die.        On 31 October 1996 the District Court requested the Ministry of Health to indicate a health institution that could prepare a second expert opinion.   On 18 November 1996 the Ministry suggested that the applicant be examined at the psychiatric clinic of the University Hospital in Bratislava.        On 22 November 1996 the head of the Cadca District Office (Okresny úrad) requested that the District Office be discharged of its function as the applicant's guardian.   On 7 January 1997 the District Office proposed that a lawyer practising in Cadca be appointed guardian instead.   B.    Relevant domestic law   Constitutional provisions        Pursuant to Article 17 para. 6 of the Constitution a person may be held in a medical institution without his or her consent only in cases provided for by law.        Article 19 para. 2 of the Constitution guarantees to everyone the right to be free from unjustified interference with his or her privacy and family life.        Article 48 para. 2 of the Constitution guarantees to everyone the right to have his or her case tried, inter alia, without unreasonable delay.        Pursuant to Article 130 para. 3 of the Constitution the Constitutional Court may commence proceedings also upon a petition submitted by an individual or a corporation claiming to have rights violated.   Constitutional Court Act        Section 20 of the Constitutional Court Act provides as follows:        "1. A proposal to start proceedings shall be submitted to the      Constitutional Court in writing.   Such a proposal shall specify      which matter it concerns, by whom it is submitted, which decision      the person concerned seeks to obtain, the reasons on which the      proposal is based and the evidence to be taken.   A proposal to      start proceedings shall be signed by the person concerned or his      or her representative.        2. The provisions of para. 1 are applicable also to bringing a      petition [pursuant to Article 130 para. 3 of the Constitution]".   Code of Civil Procedure        Section 52 para. 1   provides that if a person unjustifiedly fails to appear at a hearing or before an expert, the president of the court's chamber can order that such a person should be brought there provided that the person concerned was previously advised of such a possibility.        Pursuant to Section 81 courts are entitled to start proceedings ex officio in cases concerning, inter alia, a person's legal capacity. In such a case the president of the court's chamber shall issue a decision which is to be delivered to the participants.        Section 186 para. 3 entitles persons who were deprived of legal capacity to lodge a proposal to start proceedings with a view to having their legal capacity restored.        In proceedings concerning a person's legal capacity the court shall, pursuant to Section 187 para 3 of the Code of Civil Procedure, always hear an expert.   Upon the latter's proposal the court can order that the person concerned should be examined in a hospital for a maximum period of three months if it is considered necessary for examination of his or her state of health.        Pursuant to Section 190 a court shall quash a judgment if it is later discovered that the conditions for deprivation of a person of his or her legal capacity or its restriction were not met.   State Administration of Courts Act        According to Section 17 para. 1 of the State Administration of Courts Act (Zákon o sídlach a obvodoch súdov Slovenskej republiky, státnej správe súdov, vybavovaní stazností a o volbách prísediacich) No. 80/1992, any natural person or corporation can turn to State authorities responsible for the administration of courts (the Ministry of Justice, the President and Vice-President of the Supreme Court and the Presidents and Vice-Presidents of Regional and District Courts) with complaints only in cases of delayed proceedings or misconduct caused by improper performance of and/or undignified interference with the proceedings by officers of the court.   According to Sections 24 - 27 of the Act the responsible authority is required to establish all relevant facts and, if necessary, hear the persons concerned. Examination of the complaint is to be terminated within two months, and the complainant is to be informed in writing of the conclusion.   COMPLAINTS        The applicant complains that legal capacity has not been restored to him entirely, that he was examined in a mental hospital against his will and that the proceedings concerning his claim that legal capacity should be restored to him have lasted unreasonably long.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 7 August 1993 and registered on 20 May 1996.        On 16 October 1996 the Commission decided to communicate the application to the respondent Government.        The Government's written observations were submitted on 17 January 1997, after an extension of the time-limit fixed for that purpose.   The applicant replied on 8 February 1997.        On 4 March 1997 the Commission granted the applicant legal aid. On 18 March 1997 the lawyer originally chosen by the applicant informed the Commission that the applicant does not wish to be represented by a Slovak lawyer in the proceedings before the Commission.   THE LAW   1.    The Government first point out that the applicant did not introduce the application through the intermediary of his guardian. They contend that according to an expert's finding the applicant is a person suffering from mental disorder of lasting character who was deprived of legal capacity, and that in accordance with Section 38 para. 1 of the Civil Code all his acts aiming at the determination of his rights and obligations are void.   The Government therefore contend that the Commission should examine whether the applicant has a standing to introduce an application pursuant to Article 25 (Art. 25) of the Convention.        The Commission recalls that Article 25 (Art. 25) of the Convention grants the right to introduce an application before the Commission to "any person" regardless of his or her status under domestic law (see, mutatis mutandis, No. 1527/62, Dec. 4.10.62, Yearbook 5 pp. 238, 246).   Accordingly, the Commission considers that the applicant is entitled, of his own accord and without being represented by his guardian, to introduce an application before the Commission.   2.    The applicant complains that legal capacity has not been restored to him entirely.        The Commission notes that the proceedings concerning the applicant's claim in this respect are still pending before the District Court.        It follows that this part of the application is premature and, accordingly, manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.    The applicant further complains that he was examined in a mental hospital against his will.   The Commission will examine this complaint under Article 8 (Art. 8) of the Convention which provides, insofar as relevant, as follows:        "1.    Everyone has the right to respect for his private ... life,      ...        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 Government contend that the applicant has not exhausted domestic remedies as he did not introduce his petition to the Constitutional Court in accordance with the formal requirements set out in the Constitutional Court Act.   They contend, in particular, that the applicant did not submit his petition through the intermediary of his guardian and that he failed to supplement it as requested by the Constitutional Court.        To the extent that the Government contend that the applicant did not submit his petition through the intermediary of his guardian, the Commission recalls that persons wishing to bring an application before the Commission are only requested to exhaust remedies which are accessible, i.e. the person concerned must be able to institute the relevant proceedings himself or herself (see No. 12604/86, Dec. 10.7.91, D.R. 70, p. 125).   For this reason the Commission considers that a petition to the Constitutional Court would only meet the requirement of accessibility if the applicant had the right to lodge it of his own initiative and without the intermediary of the public authority which was appointed his guardian.        As to the Government's objection that the applicant failed to comply with the requirements laid down in Section 20 of the Constitutional Court Act, the Commission recalls that the persons concerned are normally required, in order to exhaust domestic remedies in accordance with Article 26 (Art. 26) of the Convention, to pursue those remedies available under national law, as interpreted and applied by the competent authorities (see, e.g., No. 9022/80, Dec. 13.7.83, D.R. 33, p. 21).        However, the European Court of Human Rights has recognised that Article 26 (Art. 26)   must be applied with some degree of flexibility and without excessive formalism.   The rule of exhaustion of domestic remedies is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case.   Accordingly, realistic account must be taken not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also, inter alia, of the personal circumstances of the applicants (see Eur. Court HR, Akdivar v. Turkey judgment of 16 September 1996, Reports 1996-IV, No. 15, para. 69).        In the present case the applicant lodged, on 14 September 1993, a petition before the Constitutional Court.   On 20 September 1993 the applicant supplemented his submissions.    On 9 December 1993 a judge of the Constitutional Court requested the applicant to supplement his submissions in accordance with the relevant provisions of the Constitutional Court Act.   As he failed to do so within the time-limit set for this purpose, the Constitutional Court rejected his petition on the ground that it did not contain the information provided for in Section 20 of the Constitutional Court Act.        The Commission recalls that Section 20 of the Constitutional Court Act provides for a petition to specify which matter it concerns, by whom it is submitted, which decision the petitioner seeks to obtain, the reasons on which the proposal is based and the evidence to be taken.   A petition to start proceedings shall be signed by the claimant or his or her representative.        In his submissions to the Constitutional Court of 14 September 1993 the applicant expressly complained that he had been forcibly examined in a mental hospital.   In particular, he stated that on 1 April 1992 the District Court had decided, against his will, to appoint as expert in his case the director of the mental hospital in Sucany, that on 30 November 1992 the Banská Bystrica Regional Court had dismissed his appeal against this decision and that subsequently he was brought to the hospital by two armed policemen.        The Commission considers that these submissions cover, at least in substance, the complaint which the applicant raises before the Commission.   The Commission further notes that the respondent Government have not specified which formal requirements of Section 20 of the Constitutional Court Act the applicant failed to comply with.        In these circumstances, and having regard to the personal circumstances of the applicant who is deprived of his legal capacity and, according to the information submitted by the respondent Government, suffers from a mental disorder of lasting character, the Commission considers, and even assuming that a petition pursuant to Article 130 para. 3 of the Constitution represented an effective remedy in the applicant's case, that this part of the application cannot be rejected for the applicant's failure to exhaust domestic remedies.        As to the merits, the Government admit that the examination of the applicant in a mental hospital amounted to an interference with his rights under Article 8 para. 1 (Art. 8-1) of the Convention but consider that this interference was compatible with the requirements of para. 2 of Article 8 (Art. 8-2).   In particular, the Government contend that the applicant was examined in accordance with Section 187 para. 3 of the Code of Civil Procedure, that his examination pursued the legitimate aim of protection of health and morals and of the rights and freedoms of others and that this interference was necessary in a democratic society within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.        The applicant disagrees with the Government and contends, in substance, that his right to respect for private life has been violated.        After an examination of this complaint in the light of the parties' submissions, the Commission considers that it raises questions of fact and law which can only be determined by an examination of the merits.   It follows that this part of the application cannot, therefore, be declared inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds of inadmissibility have been established.   4.    Finally, the applicant complains that the proceedings concerning the restoration of his legal capacity have lasted unreasonably long. The Commission will examine this complaint under Article 6 para. 1 (Art. 6-1) of the Convention which, insofar as relevant, provides as follows:        "In the determination of his civil rights and obligations ...      everyone is entitled to a ... hearing within a reasonable time      ..."        The Government contend that the applicant failed to exhaust domestic remedies as he did not lodge, through the intermediary of his guardian, a complaint pursuant to Section 17 para. 1 of the State Administration of Courts Act No. 80/1992 and, subsequently, a petition pursuant to Article 130 para. 3 of the Constitution.        The Commission recalls the Convention organs' case-law, according to which the decisive question in assessing the effectiveness of a remedy concerning a complaint about the length of proceedings is whether the applicant can raise this complaint before domestic courts by claiming specific redress; in other words, whether a remedy exists that could answer his complaints by providing a direct and speedy, and not merely indirect, protection of the rights guaranteed in Article 6 para. 1 (Art. 6-1) of the Convention (see Eur. Court HR, Deweer v. Belgium judgment of 27 February 1980, Series A no. 35, p. 16, para. 29).   For a remedy to be effective, it must be accessible, that is, the person concerned must be able to institute the relevant proceedings himself or herself (see, mutatis mutandis, No. 12604/86, Dec. 10.7.91, D.R. 70, p. 125).        As regards the administrative remedy referred to by the Government, i.e. the complaint under Section 17 para. 1 of the State Administration of Courts Act, the Commission observes that the applicant pursued this remedy in substance.   In fact, the applicant's complaints about delays in the proceedings concerning his case were transmitted to the President of the Cadca District Court.   However, the latter refused to deal with these complaints as under Slovak law the applicant lacked capacity to introduce them.        It is true that the applicant could have requested the public authority exercising the function as his guardian to lodge such a complaint on his behalf.   However, the use of such a remedy depended on the decision of that authority.   In the Commission's view, such a remedy does not meet the requirement of accessibility within the meaning of the Convention organs' case-law.        As regards the petition provided for in Article 130 para. 3 of the Constitution, the Commission recalls that that remedy can give rise to a declaration of excessive length of proceedings, but it is not capable of accelerating the proceedings which are still pending (see No. 25006/94, Dec. 4.3.97, D.R. 88-A, pp. 34 and 39).        In these circumstances, the Commission considers that the application cannot be declared inadmissible for non-exhaustion of domestic remedies.        As regards the merits, the Government submit that they cannot comment on the length of the proceedings as the proceedings are still pending.        The applicant submits, in substance, that the proceedings have lasted unreasonably long.        The Commission notes that the relevant period did not begin as from the institution of the proceedings in February 1987, but only as from 18 March 1992 when the former Czech and Slovak Federal Republic ratified the Convention and recognised the right of individual application.   However, in assessing the reasonableness of the time that elapsed after 18 March 1992, account must be taken of the state of the proceedings at that time (see Eur. Court HR, Baggetta v. Italy judgment of 25 June 1978, Series A no. 119, p. 32, para. 20).   The proceedings are still pending before the District Court.   The period to be considered thus amounts to five years and almost six months.        The Commission considers, in the light of the criteria established by the case-law of the Convention organs on the question of "reasonable time", and having regard to all the information in its possession, that this complaint raises issues of fact and law requiring an examination of the merits.          For these reasons, the Commission,        by a majority,      DECLARES ADMISSIBLE, without prejudging the merits, the      applicant's complaints that he was examined against his will in      a mental hospital and that the proceedings concerning his case      have lasted unreasonably long;        unanimously,      DECLARES INADMISSIBLE the remainder of the application.      M.-T. SCHOEPFER                               G.H. THUNE       Secretary                                   President to the Second Chamber                       of the Second Chamber