CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 21 septembre 2004

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s5BA5B7C7 { margin-top:12pt; margin-bottom:12pt; text-align:center; font-size:14pt } .s662121A1 { margin-top:12pt; margin-bottom:12pt; text-align:center } .sB8987CE9 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .s61ED8A2B { width:14.36pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .sA36B60A1 { font-family:Arial; font-style:italic } .s84D0D60A { width:8.36pt; display:inline-block } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sBB5E682E { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt } .sF604F523 { margin-top:36pt; margin-bottom:12pt; font-size:14pt } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s9019FD2F { margin-top:12pt; margin-bottom:6pt; text-indent:14.2pt } .s6BBACBD8 { margin-top:6pt; margin-left:20.15pt; margin-bottom:12pt; text-indent:8.8pt; font-size:10pt } .s160BBE39 { margin-top:12pt; margin-left:20.15pt; margin-bottom:6pt; text-indent:8.8pt; font-size:10pt } .s451A1BF5 { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt } .sE8EB5753 { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt } .s8AD34D0 { margin-top:6pt; margin-left:20.15pt; margin-bottom:6pt; text-indent:8.8pt; font-size:10pt } .s377C1984 { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt } .sA918FEC8 { margin-top:12pt; margin-bottom:12pt; text-indent:14.4pt } .sBED5F98F { margin-top:12pt; margin-left:14.2pt; margin-bottom:36pt } .s8F43FB07 { margin-top:36pt; margin-left:14.2pt; margin-bottom:36pt; text-indent:-14.2pt; text-align:left } .sE5416902 { width:181.99pt; text-indent:0pt; display:inline-block } .sA6AAD61 { width:196.47pt; text-indent:0pt; display:inline-block } .sA5C4F8A9 { margin-top:36pt; margin-bottom:0pt; text-align:left; page-break-inside:avoid; page-break-after:avoid } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } FOURTH SECTION FINAL DECISION AS TO THE ADMISSIBILITY OF Application no.   50232/99 by Z.M. and K.P. against Slovakia The European Court of Human Rights (Fourth Section), sitting on 21   September 2004 as a   Chamber composed of:   Mr   M. Pellonpää , President ,   Mrs   V. Strážnická ,   Mr   J. Casadevall ,   Mr   R. Maruste ,   Mr   S. Pavlovschi ,   Mr   L. Garlicki ,   Mr   J. Borrego Borrego, judges , and Mrs F. E lens-Passos , Deputy Section Registrar , Having regard to the above application lodged on 7   June 1999, Having regard to the partial decision of 18   November 2003, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having deliberated, decides as follows: THE FACTS The first applicant, Mrs   Z. M., and the second applicant, Ms   K.P., who is the first applicant's daughter were born in Slovakia 1960 and 1981 respectively. They now live out of Slovakia and have both the Slovakian nationality and the nationality of the country of their permanent residence [1] . The respondent Government were represented by Mr   P.   Kresák, their Agent. The facts of the case, as submitted by the parties, may be   summarised as follows. In 1985 the Bratislava   4 District Court (then Obvodný súd , at present Okresný súd ) pronounced the first applicant's divorce from Mr   P., the biological father of the second applicant. The second applicant was entrusted into the care and custody of the first applicant. In 1993 the first applicant married Mr   M. abroad and the applicants set up their permanent residence with him there. On 8   January 1996 Mrs   O., the mother of the first applicant, filed an   action with the Dunajská Streda District Court claiming that she should be   granted the right to   educate the second applicant, her granddaughter. She maintained that the first applicant had failed to   take proper care of the second applicant and submitted that Mr   P. was in agreement with her proposal. The second applicant was then fourteen years old. At the time when the action was brought both applicants were in Slovakia on a   temporary stay. On 31   January 1996 Mr   M. lodged a   request for a   revocable form of adoption of the second applicant. He maintained that all involved had Slovakian nationality and that, therefore, the matter was to   be   determined by Slovakian courts. On 7   February 1996 Mr   M. withdrew the request and, on the same day, the District Court discontinued the proceedings in its respect. On 14   February 1996 the District Court appointed the Veľký Meder District Office ( Okresný úrad ) to   look after the second applicant's interests in the proceedings. On 19   February 1996 Mr   M. re ‑ submitted an   identical request for adoption of the second applicant. On the same day the first applicant made several submissions to the District Court. She asserted that she and the second applicant were permanently residing outside of Slovakia and that, in addition to Slovakian nationality, they also had the nationality of the country of their permanent residence. As they were staying in Slovakia only temporarily, the Slovakian courts had no jurisdiction to   entertain the question of education and care of the second applicant. The first applicant further expressed her critical views as to the character of Mrs   O. and Mr   P. Finally, she lodged an   appeal against the decision of 14   February 1996 arguing that officials of the District Office had previously failed to   represent the second applicant's interests adequately and that they could not be expected to do so properly in the future. At a   hearing held before the District Court on 28   February 1996 Mr   M. withdrew his second requests for adoption. The proceedings in its respect were discontinued and the hearing was adjourned. The court heard the parties on 15   April 1996. On that date Mr   P. joined the proceedings and claimed that the action of Mrs   O. be   granted. In April and May 1996 the first applicant sought to   disqualify the judge dealing with the case as well as all other judges of the District Court for being biased. The hearing scheduled for 13   May 1996 had therefore to   be   adjourned and the case ‑ file was submitted to the Trnava Regional Court ( Krajský súd ) for a   decision on the challenge. On 27   May 1996 the first applicant filed a   petition with the Bratislava Regional Court claiming that Mr   P. be   deprived of his parental rights over the second applicant. According to the applicants, no decision has ever been taken in respect of this request. On 31   May 1996 the District Office issued an   interim measure ordering that the second applicant be   temporarily placed in the care of Mrs   O. Despite this measure the first applicant returned with the second applicant to their home abroad. On 3   July 1996 the Dunajská Streda District Prosecutor ( Okresný prokurátor ) joined the proceedings. On 11   July 1996 the Trnava Regional Court sent the case ‑ file back to the District Court instructing it to   invite the first applicant to   indicate which judges of the District Court she was challenging and why. Subsequently the police informed the District Court that the applicants had left Slovakia in June 1996. On 26   August 1996 Mrs   O. requested that the District Court issue an   interim measure granting her the custody of the second applicant pending the outcome of the proceedings. The case ‑ file was again sent to the Trnava Regional Court in September   1996. The Regional Court decided that the District Court's judges were not biased and, on 18   October 1996, returned the case ‑ file to the latter. The District Court held a   hearing on 28   November 1996. Following their arrival for another temporary stay in Slovakia, the District Court heard the first applicant and Mr   M. on 5   December 1996 and the second applicant on 10   December 1996. On 18   December 1996 the case was adjourned and on 19   December 1996 the District Court dismissed Mrs   O.'s request of 26   August 1996 for an   interim measure. The District Court did so observing that the applicants were living in Slovakia at that time and that, when questioned on 10   December 1996, the second applicant had expressed the wish to   stay with the first applicant. On 14   January 1997 the first applicant filed a   petition with the Dunajská Streda District Court in which she again claimed that Mr   P. be   deprived of his parental rights over the second applicant. On 16   January 1997 the District Court heard witnesses and on 30   January   1997 it appointed an   expert in psychology to   draw up a   report on the second applicant. The latter filed an   appeal against this decision. On 3   February 1997 the District Court appointed the Dunajská Streda District Office to   look after the second applicant's interests in the proceedings. On 13   February 1997 the expert informed the District Court that she was not in a   position to   produce the report because of a   heavy workload. The hearing called for 18   February 1997 had to   be   adjourned as the first applicant and Mr   P. failed to   appear. The District Court ordered that the District Office look into the upbringing environment of the second applicant and the personal and material situation of the first applicant and Mr   P. Mr   P. requested that an   interim measure be   issued to   prevent the second applicant from travelling abroad without his consent. On 21   February 1997 the District Court dismissed the request. At a   hearing held on 6   March 1997 the District Court heard the parties and a   representative of the Dunajská Streda District Office and the first applicant was fined for disturbing order of the hearing. The case was then adjourned and Mr   P. was invited to   submit documentary evidence. On 7   March 1997 the first applicant filed an   appeal “against all decisions” delivered by the District Court judge dealing with the case. On 8   March 1997 the first applicant submitted a   power of attorney for a   lawyer to   represent her in the proceedings. On 10   March 1997 Mr   P. appealed against the decision of 21   February   1997. He also claimed that his right to   meet the second applicant be   determined by the court. On 20   March 1997 the first applicant requested that further documentary evidence be   taken. On 27   March 1997 Mr   M. for the third time lodged a   request for adoption of the second applicant. On 1   April 1997 the case was assigned to a   different judge. On the same day the second applicant informed the District Court in writing that she did not wish to   meet Mr   P. and that she lived abroad where she was undergoing a   treatment. On 3   April 1997 the lawyer identified by the first applicant as her legal representative informed the District Court that he had not accepted any authority to   represent her. On 13   May 1997 the District Court submitted the case ‑ file to the Trnava Regional Court for a   decision on the appeals filed by the parties. On 23   June   1996 the Regional Court returned the case ‑ file to the District Court instructing it to   ensure that the first applicant eliminates formal shortcomings in her appeal of 7   March 1997. In July and August 1997 the District Court unsuccessfully attempted to   reach the first applicant and Mr   M. at their addresses in Slovakia. In the meantime, on 28   July 1997, the Trnava Regional Court had dismissed the second applicant's appeal against the decision of 30   January   1997 concerning the appointment of an   expert and quashed the above District Court's decision of 21   February 1997. On 8   September and 6   October 1997 the District Court inquired at the first applicant's father after the applicants' whereabouts. On 15   September and 23   October 1997 he replied that the applicants were currently staying abroad and where on 6   May 1997. According to the applicants, they had left Slovakia on 23   April 1997. From November 1997 to January 1998 the court attempted several times to   establish the address of the applicants in the country of their residence. The police notified the address to the District Court on 29   January 1998. On 24   February 1998, while both applicants were abroad, the District Court issued an   interim measure prohibiting them inter alia from leaving Slovakia. On 25   March 1998 Mr   M. appealed against this decision. The first applicant, Mrs   O. and Mr   P. also appealed. On 14   April 1998 the case ‑ file was submitted to the President of the Trnava Regional Court who returned the file on 7   May 1998. On 8   July 1998, after having taken several procedural steps, the District Court re ‑ submitted the case ‑ file to the Trnava Regional Court for a   determination of the appeals against the decision of 24   February 1998. On 26   August 1998 the Trnava Regional Court overturned the District Court's decision to the extent that it had prohibited the applicants from travelling abroad and dismissed the request for an   interim measure to this effect. The case ‑ file was returned to the District Court on 4   September 1998. On 11   November 1998 and on 10   March 1999 the District Court judge arranged for service of the Regional Court's decision on the parties. In the meantime, on 28   October 1998, the first applicant had requested that further evidence be   taken. On 10   December 1998 she informed the District Court that she had withdrawn the power of attorney of Mr   M. to   represent her in the proceedings. The District Court judge dealing with the case was ill for a   considerable period between August 1998 and January 1999 and also between March and May 1999. On 21   April 1999 the Constitutional Court found that the constitutional right of Mrs   O. to a   hearing without undue delay had been violated in the above proceedings. In its decision the Constitutional Court admitted that, to a   certain extent, the length of the proceedings was due to the behaviour of the parties. However, the case was not particularly complex and what was at stake in the proceedings called for particular diligence. The Constitutional Court further noted that the District Court had caused undue delays in the proceedings by failing to   decide in a   timely manner on the request for an   interim measure restricting the applicants' travel abroad thus bringing about the need of assistance of foreign authorities. Furthermore, by the time of the Constitutional Court's decided, the District Court judge had not yet prepared a   request for assistance that was to be sent to   these authorities. The Constitutional Court's decision further stated that the District Court had not proceeded with the case effectively in that it had failed to   take evidence, including an   expert opinion, required for a   decision on the case. Delays in the proceedings had also arisen as a   result of the ordinary courts' failure to   decide on the requests for interim measures within the statutory time-limit. Finally, the Constitutional Court noted that the District Court had failed to   take any effective action in the case since 4   September 1998. In a   letter of 26   May 1999, in response to the first applicant's complaint, the President of the District Court admitted that there had been undue delays in the proceedings. She instructed the judge dealing with the case to   proceed with it expeditiously. On 3   September 1999 the District Court judge prepared a   request for assistance which was to   be   submitted through the Slovakian Ministry of Justice to the competent authorities in the country of the applicants' residence. In particular, the District Court sought information from the first applicant and Mr   M. as regards the care and education of the second applicant, Mr   P.'s parental and visiting rights in respect of the second applicant and the second applicant's adoption. The District Court also sought an   inquiry into the general upbringing environment of the second applicant and the personal, social and material situation of the first applicant and Mr   M. In a   letter of 26   November 1999 the Ministry of Justice invited the District Court to   complete the request for assistance by submitting further information and copies of the relevant documents. On 21   January 2000 the District Court took three separate decisions to   discontinue the proceedings concerning, respectively, the education and care of the second applicant, the deprivation of Mr   P. of his parental rights over her and her adoption by Mr   M. The decisions stated that the second applicant had reached the age of majority in 1999 and that, therefore, the said matters could no longer be   determined on the merits. COMPLAINTS 1.     The applicants complained under Article   6 §   1 of the Convention: (a)     that they had had no access to a   court in that the actions of 27   May   1996 and 14   January 1997 for deprivation of Mr   P.'s parental rights over the second applicant and the action of 27   March 1997 for the second applicant's adoption had never been determined on their merits; and (b)     that the length of the proceedings concerning the care and education of the second applicant had exceeded a   “reasonable time”. 2.     The applicants also complained under Article   8 of the Convention that the way in which the domestic courts had dealt with the actions of 27   May   1996 and 14   January 1997 for deprivation of Mr   P.'s parental rights over the second applicant and the action of 27   March 1997 for the second applicant's adoption and, in particular, their failure to   decide on the merits of these actions amounted to a   violation of their right to respect for family life. 3.     Relying on Article   13 of the Convention the applicants finally complained that they had had no   effective remedy at their disposal as regards their complaint under Article   6 §   1 of the Convention of the length of the proceedings concerning the second applicant's care and education. THE LAW 1.     The applicants complained that the way in which the domestic courts had dealt with the actions for deprivation of Mr   P.'s parental rights and for the second applicant's adoption constituted an   interference with their family life in violation of Article   8 of the Convention which, insofar as relevant, provides: “1.     Everyone has the right to respect for his ... family 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 objected that the applicants had not exhausted domestic remedies as required by Article   35 §   1 of the Convention in that they had not sought redress before ordinary courts under Article   11 et seq. of the Civil Code by means of an   action for protection of their personal integrity. The applicants disagreed. The Court recalls that it had already examined at length the effectiveness of the remedy under Article   11 et seq. of the Civil Code in the same matter (see E.O. and V.P. v.   Slovakia , nos.   56193/00 and 57581/00, §§ 70 - 77, 27   April 2004). It had found that this remedy had not offered the applicants any reasonable prospects of success and that they had not been required to   make use of it in order to comply with the requirements of Article   35 §   1 of the Convention. Having found no reasons for reaching a   different conclusion in the present case, the Court considers that the Government's objection cannot be   sustained. As to the merits of this complaint, the Government accepted that it was not manifestly ill-founded. The applicants maintained that since 1993 they had had their permanent residence abroad where they had lived with Mr   M., the new husband of the first applicant. According to them Mr   P. had had a   long history of dishonouring his parental responsibilities and abusing his parental rights in respect of the second applicant. The applicants' aim had been to   create a   legal situation that would correspond to the actual state of affairs. The way in which the domestic courts had dealt with the action for deprivation of parental rights and the request of adoption rendered it impossible for this aim to   be   fulfilled. The mere passage of time brought them no solution and was of no relevance in their case. The Court considers, in the light of the parties' submissions, that the relevant part of the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill ‑ founded within the meaning of Article   35 §   3 of the Convention. No other ground for declaring it inadmissible has been established. 2.     The applicants also complained that their right of access to a   court and to a   hearing within a   reasonable time had been violated. They relied on Article   6 §   1 of the Convention the relevant part of which provides: “In the determination of his civil rights and obligations ..., everyone is entitled to a   fair ... hearing within a reasonable time by [a] ... tribunal...” The Government maintained that the issues of the second applicant's care and education, the parental rights over her and her adoption had been closely interrelated. Their determination had necessitated the taking and assessing of rather overlapping evidence and had in fact been carried out in the framework of a   single set of proceedings. They considered that, in the circumstances, the questions of the access to court and the length of the proceedings were to   be   examined together with and in context of the complaint under Article   8 of the Convention of a   violation of the applicants' right to respect for their family life. They referred to the Court's decisions in the cases of W v.   the United Kingdom, judgment of 8   July 1987, Series   A   no.   121, p.   29, §   65 and Sylvester v.   Austria, nos.   36812/97 and 40104/98, §   69, 24   April 2003 and concluded that a   separate examination of the complaints under Article   6 §   1 of the Convention was not called for. The applicants argued that the above cases of W v.   the United Kingdom , cited above, and Sylvester v.   Austria, cited above, were of no relevance in the instant case and that the Court should also entertain their complaints under Article   6 §   1 of the Convention. Insofar as the Government's objection of non ‑ exhaustion of domestic remedies in respect of the complaint under Article   8 of Convention may be   understood as concerning the complaints under Article   6 §   1 of the Convention as well, the Court sees no legal way how the applicants could obtain any redress in respect of the alleged lack of access to a   court and the length of proceedings under Article   11 et seq. of the Civil Code. This part of the application therefore cannot be   rejected under Article   35 §§   1 and   4 of the Convention for non-exhaustion of domestic remedies. As to the complaint of the lack of access to a   court, the applicants further maintained that the District Office which had been charged with representing the second applicant's interests in the proceedings had failed to   do so adequately. According to them this amounted to a   failure on the part of the State to   discharge its positive obligation to   secure that the second applicant have an   effective access to a   court in the proceedings at issue. As regards the complaint of the length of the proceedings in respect of the care and education of the second applicant, the applicants argued first of all that Slovakian courts had lacked jurisdiction to   entertain this matter at all as they both lived abroad where they had acquired a   second nationality and they had been staying in Slovakia only temporarily. They further objected that the action of Mrs   O. joined by the action of Mr   P. had had no basis in truthful facts. It had been pursued in a   mere attempt to   delay the decision concerning the deprivation of Mr   P.'s parental rights and to   render this decision impossible to   achieve by passing of time. According to the applicants, a   substantial delay in the proceedings had been caused by the fact that, when deciding on the constitutional complaint of Mrs   O., the Constitutional Court had taken and held the District Court's case ‑ file for about one year. The Court considers, in the light of the parties' submissions, that the relevant part of the application raises serious issues of fact and law under the Convention, the determination of which requires an   examination of the merits. The Court concludes therefore that this complaint is not manifestly ill ‑ founded within the meaning of Article   35 §   3 of the Convention. No other ground for declaring it inadmissible has been established. 3.     The applicants finally complained under Article   13 of the Convention that they had had no effective remedy as regards their complaint under Article   6 §   1 of the Convention of the length of the proceedings concerning the second applicant's care and education. Article   13 of the Convention provides that: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” Referring to their position as regards the complaints under Article   6 §   1 and Article   8 of the Convention, the Government considered the complaint under Article   13 of the Convention manifestly ill-founded. The applicants disagreed and reiterated their complaint. The Court considers, in the light of the parties' submissions, that the relevant part of the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill ‑ founded within the meaning of Article   35 §   3 of the Convention. No other ground for declaring it inadmissible has been established. For these reasons, the Court unanimously Declares the remainder of the application admissible, without prejudging the merits of the case. Françoise Elens-Passos   Matti Pellonpää Deputy Registrar   President   [1] The President of the Chamber has acceded to the applicants’ requests that their names not be   disclosed (Rule   47 §   3 of the Rules of Court) and that the documents deposited with the Registry in connection with the application not be   accessible to the public (Rule   33 of the Rules of Court).