CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 mars 1998

.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. 35274/97                       by D.I.S.                       against Slovenia        The European Commission of Human Rights (First Chamber) sitting in private on 4 March 1998, the following members being present:              MM     M.P. PELLONPÄÄ, President                  N. BRATZA                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS            Mrs    J. LIDDY            MM     L. LOUCAIDES                  B. CONFORTI                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs    M. HION            Mr     R. NICOLINI              Mrs    M.F. BUQUICCHIO, 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 25 September 1996 by D.I.S. against Slovenia and registered on 11 March 1997 under file No. 35274/97;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a Slovenian citizen. He was born in 1964 and resides in Ljubljana. The facts of the case, as submitted by the applicant, may be summarised as follows:        The applicant's daughter was born out of wedlock in 1989. Proceedings for the applicant's access to his child began in 1990. The extent of access was determined by the Social Work Centre (Center za socialno delo) on at least three occasions, on 21 December 1993, 7 April 1995 and 12 April 1996. It appears that the applicant appealed some of these decisions and made other proposals with respect to contacts. The decision currently in force is a decision of the Social Work Centre in Ljubljana Moste Polje of 12 April 1996, which provides for access on three weekends and one week during holidays per year.        The applicant states that he had always had difficulty in enforcing access, but that since November 1996 he has not seen his daughter at all, and that recently he has not been able to talk to her on the phone as she refused to talk to him.        In the enforcement proceedings following the decision of 12 April 1996 the Local Administrative Authority first postponed the issuing of the enforcement order as it was informed by the applicant that it might be possible to agree with the mother of his daughter. As this turned   out not to be possible the Local   administrative Authority issued on 10 September 1997 an enforcement order with a prescribed fine of SIT 50,000.00.        In addition, after the decision of 12 April 1996 the applicant lodged a new application for more contacts. This was rejected by the Social Work Centre in Ljubljana Moste Polje on 11 June 1997 and the previous decision of 12 April 1996 was confirmed. The applicant appealed against the decision of 11 June 1997 and the case is now pending before the Ministry of Labour, Family and Social Affairs (Ministrstvo za delo, druzino in socialne zadeve).        In the course of one set of proceedings the applicant lodged on 15 November 1994 a constitutional complaint to the Constitutional Court, and filed seven further submissions in 1995 and 1996, the last on 27 December 1996. The applicant complained that no decision had been taken by the Supreme Court in the action he lodged on 20 September 1994. The Constitutional Court dismissed the complaint on 22 January 1997 on grounds of procedural deficiencies, namely that the applicant had not exhausted all remedies, and found no justification for the case to be considered exceptionally. The Constitutional Court stated that the applicant should, if complaining of the length of proceedings, in principle first have lodged an administrative complaint provided by Article 157 para. 2 of the Constitution.     COMPLAINTS        The applicant complains that his family life suffered as a result of the lengthy proceedings before the Constitutional Court which took two years and two months to decide on his constitutional complaint. He also claims that the Constitutional Court was wrong when dismissing his complaint. The applicant claims that the enforceable decision on access itself violates his right to family life as three weekends and one week a year is not sufficient properly to raise and educate one's child. The applicant invokes Articles 6 para. 1 and 8 of the Convention.   THE LAW   1.    The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention about the length of the proceedings before the Constitutional Court.        Article 6 (Art. 6) of the Convention, insofar as relevant, provides as follows:        "1.    In the determination of his civil rights and obligations      ..., everyone is entitled to a fair and public hearing within a      reasonable time ..."        The Commission first notes that the applicant does not complain about, and has not submitted any documents relating to, the proceedings prior to the Constitutional Court's decision. The complaint is limited to the length of proceedings before the Constitutional Court.        The Constitutional Court in a preliminary examination of the case found that it was not competent as the applicant had failed to exhaust all the remedies available in his case and found no ground for the case to be dealt with exceptionally.        The Commission first recalls the case-law of the European Court of Human Rights to the effect that Constitutional Court proceedings do not in principle fall outside the scope of Article 6 para. 1 (Art. 6-1) of the Convention. It may apply to preliminary proceedings in which the German Constitutional Court decides on the admissibility of the case, if this can be decisive for the applicant's civil right (see, for example, Eur. Court HR, Sussmann v. Germany judgment of 16 September 1996, Reports 1996-IV, No. 15, paras. 39, 45). Assuming therefore that Article 6 (Art. 6) applies to the present proceedings and in the light of the recent case-law of the European Court of Human Rights to the effect that all stages of the proceedings have to be resolved within a reasonable time (for example, Eur. Court HR, Robins v. the United Kingdom judgment of 23 September 1997, Reports 1997-V,No. 49, para. 28) the Commission notes that the proceedings before the Constitutional Court lasted 2 years and 2 months. In this period the applicant made seven further submissions which appear to be related to the matter.        Having regard to the case-law under which the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities (see, for example, Eur. Court HR, Terranova v. Italy judgment of 4 December 1995, Series A no. 337-B, p. 21, para. 20) and the importance of what is at stake for the applicant in the litigation (see, among other authorities, Eur. Court HR, Allenet de Ribemont v. France judgment of 10 February 1995, Series A no. 308, p. 19, para. 47), the Commission finds that the period of two years and two months did not exceed, in this case, the "reasonable time" required under Article 6 (Art. 6) of the Convention.        It follows that this part of the application is manifestly ill*founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicant complains under Article 8 (Art. 8) of the Convention about the enforceable decision which only allows him contacts with his daughter three weekends and one week a year, claiming that this is in breach of his right to a family life as it is not enough to participate actively in the bringing up of his daughter.        Article 8 (Art. 8) of the Convention, insofar as relevant, provides as follows:        "1.    Everyone has the right to respect for his private and      family life ..."        The Commission first notes that the applicant makes submissions not only in his own name but also in that of his 8 year old daughter. He considers himself to be her representative. The Commission notes that the applicant has not been formally appointed as his daughter's representative. It appears that under domestic law, as custody of the child is with the mother, the applicant would not be entitled to act as her representative in domestic proceedings. In any event, the Commission is not required to determine whether the application is made by the applicant alone or also on behalf of his daughter as well, since to the extent that the daughter's right to respect for family life is at issue, the conclusions reached below apply equally to her.        With regard to the above complaints the Commission notes that the applicant has not appealed the decision of 12 April 1996 to the Ministry of Labour, Family and Social Affairs and subsequently to the Supreme and Constitutional Courts. Any complaints regarding its substance must therefore be rejected under Article 27 para. 3 (Art. 27-3) of the Convention for failure to exhaust domestic remedies.   3.    The applicant further complains that the decision of the Social Work Centre of 12 April 1996 has not been respected and that the State has failed to enforce it, in breach of his right to respect for family life.        The European Court of Human Rights had previously found that insufficient activity on the part of the social welfare authorities in giving effect to the court decisions and enforcement orders to arrange access of a father to a child may gave rise to a violation of a father's right to respect for his family life (Eur. Court HR, Hokkanen v. Finland judgment of 23 September 1994, Series A no. 299-A, p. 23, paras. 60-62,). However, in the present case, there were a number of contacts between the applicant and his daughter and the difficulties arose with the new decision on contacts. The applicant at first tried to agree with the child's mother, and, when this was not possible, informed the Local Administrative Authority, which had in the meantime awaited settlement, on its failure. The Local Administrative Authority therefore issued an enforcement order and imposed a fine on 10 September 1997. If the mother still refuses to comply with the order, further orders can be made and it will be open to the applicant to pursue his complaints under Article 8 (Art. 8) of the Convention by way of a constitutional complaint, as provided for in Articles 160 and 162 of the Slovenian Constitution and Article 50 of the Constitutional Court Act. In these circumstances the Commission cannot find that the relevant authorities have failed to give effect to court orders or to protect the applicant's right under Article 8 (Art. 8) of the Convention.        It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, by a majority,        DECLARES THE APPLICATION INADMISSIBLE.        M.F. BUQUICCHIO                             M.P. PELLONPÄÄ         Secretary                                  President    to the First Chamber                       of the First Chamber