EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 31534/96

Wilibald Rudolf Matter

against

the Slovak Republic

REPORT OF THE COMMISSION

(adopted on 20 May 1998)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-16) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-11) 1

C. The present Report

(paras. 12-16)              2

II. ESTABLISHMENT OF THE FACTS

(paras. 17-64)              3

A. The particular circumstances of the case

(paras. 17-51)              3

B. Relevant domestic law

(paras. 52-64)              6

III. OPINION OF THE COMMISSION

(paras. 65-104) 8

A. Complaints declared admissible

(para. 65) 8

B. Points at issue

(para. 66) 8

C. As regards Article 6 para. 1 of the Convention

(paras. 67-83)              8

CONCLUSION

(para. 84) 10

D. As regards Article 8 of the Convention

(paras. 85-101) 10

CONCLUSION

(para. 102) 13

E. Recapitulation

(paras. 103-104) 13

DISSENTING OPINION OF Mr M.A. NOWICKI, Mrs G.H. THUNE,

MM. P. LORENZEN AND E.A. ALKEMA 14

APPENDIX: DECISION OF THE COMMISSION AS TO THE

       ADMISSIBILITY OF THE APPLICATION              15

I. INTRODUCTION

1. The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2. The applicant is a Slovak citizen, born in 1925 and resident in ÄŒadca .

3. The application is directed against the Slovak Republic.  The respondent Government were represented by their Agent, Mr R. Fico .

4. The case concerns the length of proceedings concerning restoration of legal capacity to the applicant and examination of the applicant in a mental hospital in the context of these proceedings.  The Commission has examined these complaints under Article 6 para. 1 and Article 8 of the Convention.

B. The proceedings

5. The application was introduced on 7 August 1993 and registered on 20 May 1996.

6. On 16 October 1996 the Commission (Second Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.

7. The Government's observations were submitted on 17 January 1997 after an extension of the time-limit fixed for this purpose.  The applicant replied on 8 February 1997.  On 4 March 1997 the Commission granted the applicant legal aid for the representation of his case.

8. On 16 September 1997 the Commission declared admissible the applicant's complaints under Article 6 para. 1 and Article 8 of the Convention concerning respectively the length of the proceedings the aim of which was to determine whether legal capacity could be restored to the applicant and the examination of the applicant in a mental hospital in this context.  It declared inadmissible the remainder of the application.

9. The text of the Commission's decision on admissibility was sent to the parties on 23 September 1997 and they were invited to submit further observations on the merits.  The Government submitted observations on 3 November 1997 and requested that the application be declared inadmissible under Article 29 of the Convention.  The applicant submitted further observations on 28 and 29 July, on 4, 14, 18 and 29 August, on 4, 7, 9, 10, 11, 16 and 20 September, on 25, 26 and 27 October, on 3, 7, 13, 14, 21 and 28 November and on 3 and 8 December 1997 as well as on 2, 7 and 26 January and on 6 and 9 February 1998.

10. On 20 May 1998 the Commission (Second Chamber) decided that there was no basis on which to apply Article 29 of the Convention.

11. After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.  In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C. The present Report

12. The present Report has been drawn up by the Commission (Second Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

J. MUCHA

D. ŠVÁBY

P. LORENZEN

E. BIELIŪNAS

E.A. ALKEMA

13. The text of this Report was adopted on 20 May 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

14. The purpose of the Report, pursuant to Article 31 of the Convention, is:

( i ) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

15. The Commission's decision on the admissibility of the application is annexed hereto.

16. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

17. In 1976 the applicant's legal capacity was restricted.  In 1983 the Čadca District Court ( Okresný súd - "the District Court") deprived the applicant of legal capacity entirely.  The District Court noted, with reference to an expert opinion, that the applicant had been undergoing out-patient psychiatric treatment for twenty years, that he suffered from an explosive and vexatious form of paranoid psychosis as a result of which he frequently wrote complaints to various public authorities.  The court further noted that the applicant's personality had been deteriorating due to an increased syndrome of dementia.

18. On 2 February 1987 the applicant asked a judge of the District Court to introduce, in accordance with Section 81 of the Code of Civil Procedure (see "Relevant domestic law and practice" below), proceedings concerning restoration of his legal capacity.  By a decision of 18 February 1987 issued pursuant to Section 81 (2) of the Code of Civil Procedure the District Court started proceedings with a view to determining whether legal capacity could be restored to the applicant.  On 23 February 1989 the District Court decided that this could not be done.

19. On 30 May 1990 the Supreme Court ( Najvyšší súd ) quashed the aforesaid decision and sent the case back to the District Court.  On 26 June 1990 the latter appointed an expert with a view to examining the applicant's mental health.

20. 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 health could only be carried out if he was examined in a mental hospital.

21. On 11 December 1991 the District Court appointed the Čadca Town Office ( Mestský úrad ) as the applicant's guardian.  On 18 February 1992 the Banská Bystrica Regional Court ( Krajský súd - "the Regional Court") upheld this decision.

22. 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 and appointed a new expert for this purpose.  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.

23. The District Court asked 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 as to whether or not the applicant's state of health had changed to such an extent that legal capacity could be restored to him.

24. On 13 May 1992 the District Court invited the applicant to report, on 21 May 1992, to the mental hospital in Sučany .  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.

25. On 16 May 1992 the applicant lodged an appeal against the District Court's decision of 1 April 1992.

26. On 17 July 1992 the Regional Court informed the District Court that the latter's decision of 1 April had been premature as the applicant's guardian had not given its consent to the examination of the applicant in a mental hospital.  The Regional Court further noted that the Čadca Town Office had no standing to act as the applicant's guardian.

27. On 9 September 1992 the District Court appointed the Čadca District Office ( Obvodný úrad ) as the applicant's guardian.  The applicant's appeal against this decision was dismissed by the Regional Court on 28 December 1992 on the ground that he lacked capacity to lodge it.

28. On 28 September 1992 the ÄŒadca District Prosecutor joined the applicant in the proceedings at the latter's request.

29. On 20 October 1992 a hearing was held before the District Court.  A representative of the applicant's guardian and the public prosecutor stated that they had no objections to the decision of 1 April 1992 to examine the applicant in a hospital.

30. On 30 November 1992 the Banská Bystrica Regional Court dismissed the applicant's appeal against the District Court's decision of 1 April 1992.  It noted that the Čadca District Office had consented to the applicant's examination in a mental hospital, and held that the applicant lacked standing to lodge an appeal against the aforesaid decision.

31. In its 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.

32. In a document dated 19 April 1993 and addressed to the District Court the ÄŒadca District Office stated that it agreed to restore legal capacity to the applicant.

33. On 3 May 1993 the District Court invited the applicant to report, on 12 May 1993, to the mental hospital in Sučany .  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.

34. 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.

35. The expert submitted his opinion on 29 October 1993.  In this opinion he noted that the applicant, who had undergone a brain operation in 1984 and had had several heart attacks, suffered from a vexatious form of paranoid psychosis, from an organic psychosyndrome and from a heart disease.  He concluded that legal capacity could partially be restored to the applicant and recommended that he be re-examined in two or three years.              

36. On 23 November 1993 the District Court, following the expert's opinion, restricted the applicant's legal capacity in that he was not entitled to act before public authorities on his own, to conclude contracts, to assume obligations in writing and to have a regular occupation.

37. On 9 March 1994 the applicant appealed and requested that legal capacity should be restored to him entirely.  He supplemented his appeal on 12 March, 28 April, 4 and 6 May as well as on 6 and 7 June 1994.  The applicant requested, inter alia , that his case should be dealt with by another court.  He also expressed, in substance, doubts about the impartiality of the judges of the Regional Court.

38. On 30 August 1994 the Supreme Court dismissed the applicant's request that his case should be transferred to another court.  The Supreme Court returned the file to the Regional Court and asked it to establish whether the applicant, in his earlier submissions, had asked for exclusion of the Regional Court judges and, if so, for which reasons.

39. On 28 September 1994 the Regional Court submitted the aforesaid request to the District Court.  On 13 October 1994 the District Court transferred the request to the Čadca District Office.  On 27 October 1994 the latter informed the District Court that it was not in a position to provide an answer.

40. On 7 November 1994 the Regional Court reiterated its request of 28 September to the District Court.  On 8 December 1994 the Regional Court addressed the request directly to the District Office.

41. On 9 February 1995 the Regional Court sent the file to the Supreme Court and explained that it had not been possible to obtain the requested information.  The Regional Court concluded that the applicant had challenged all its judges.

42. On 6 March 1995 the Supreme Court decided that the Regional Court's judges were not excluded from dealing with the applicant's case.

43. On 29 May 1995 the Ministry of Justice requested the District Court to submit the file concerning the applicant's case to it.

44. On 30 October 1995 the Regional Court quashed the first instance judgment of 23 November 1993.  The Regional Court pointed out that the District Court had not heard the expert who had examined the applicant notwithstanding that under the relevant provisions of the Code of Civil Procedure the hearing of an expert was compulsory in such cases.  The Regional Court further noted that two years had elapsed from the delivery of the first instance judgment and considered it therefore necessary to supplement the existing expert opinion.  

45. On 12 and 17 January 1996 respectively the Ministry of Justice and the President of the 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 he could only transmit submissions to the court through the intermediary of his guardian.

46. At a hearing before the District Court held on 5 February 1996 a representative of the District Office agreed that legal capacity be restored to the applicant, and requested that the District Office be released from its function as the applicant's guardian.  The District Court decided to obtain a second expert opinion on the applicant's mental health and adjourned the proceedings sine die.

47. On 31 October 1996 the District Court requested the Ministry of Health to indicate a health institution which 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.

48. On 22 November 1996 the head of the Čadca District Office  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 Čadca be appointed guardian instead.  In a letter dated 31 January 1997 the aforesaid lawyer agreed with the District Office's proposal.

49. On 25 March 1997 the Regional Court requested the District Court, in the context of different proceedings, to submit the file concerning the guardianship of the applicant to it.  As it did not receive the file, the Regional Court reiterated its request on 30 June 1997.

50. On 21 October 1997 the District Court ordered that the applicant be examined at the psychiatric clinic of the University Hospital in Bratislava.

51. On 22 October 1997 the District Court appointed the lawyer mentioned above as the applicant's guardian.

B. Relevant domestic law and practice

Civil Code

52. Pursuant to Section 10 (1), an individual who, because of a lasting mental disorder, is not capable of carrying out legal acts shall be deprived of legal capacity by a court.

53. Section 10 (2) provides, inter alia , that a court shall restrict the legal capacity of an individual who, because of a lasting mental disorder, is not capable of carrying out certain legal acts.  The extent of the restriction shall be specified in the court's decision.

54. Under Section 10 (3), a court shall modify or quash the decision on deprivation or restriction of legal capacity when the reasons on which it was based are no longer relevant.

Code of Civil Procedure

55. Under Section 6 courts are under an obligation to proceed with a case, in co-operation with the parties, in a way which ensures a speedy and effective protection of rights and permits to establish the disputed facts with sufficient certainty.

56. Section 52 (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 he or she was previously advised of such a possibility.

57. Section 79 (1) provides that proceedings before a court shall be introduced upon the lodging of an action.

58. Section 80 (a) permits to claim, by means of an action, that a decision on a person's legal capacity be delivered.

59. Section 81 (1) provides that in cases concerning, inter alia , a person's legal capacity courts may start proceedings ex officio even if no action was brought.  Pursuant to para. 2 of the same Section, in such a case the president of the court's chamber shall issue a decision which is to be delivered to the parties unless the law otherwise provides.             

60. Section 186 (3) entitles persons who were deprived of legal capacity to lodge an action with a view to having their legal capacity restored.  If the court dismissed such an action and if it cannot be expected that his or her health will improve, the court may deprive the person concerned of the right to lodge a further action for a maximum period of three years.

61. In proceedings concerning a person's legal capacity the court shall, pursuant to Section 187 (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 this is considered necessary for an examination of his or her state of health.

62. Pursuant to Section 190, a court shall quash a judgment if it is later discovered that the conditions for deprivation of a person's legal capacity or its restriction were not met.

Established judicial practice

63. According to the Supreme Court's case-law (Collection of judicial decisions and opinions, No. R 2/1984), when a court examines the question whether legal capacity can be restored to a person, it is not bound by the parties' submissions.  It may quash the original decision on deprivation or restriction of legal capacity.  The court may also restrict a person's legal capacity to such an extent as it deems  necessary even if it was not requested in the action or, as the case may be, in the initiative upon which it started the proceedings.

64. Under established case-law (Collection of judicial decisions and opinions, No. R 13/1977), courts should apply measures provided for, inter alia , in Section 52 of the Code of Civil Procedure rather than discontinue the proceedings when a participant remains inactive.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

65. The Commission has declared admissible the applicant's complaints that the proceedings concerning his case have lasted unreasonably long and that he was forcibly examined in a mental hospital.

B. Points at issue

66. Accordingly, the points at issue in the present case are whether or not there has been a violation of:

- Article 6 para. 1 of the Convention as regards the length of the proceedings concerning the applicant's legal capacity;

- Article 8 of the Convention as regards the examination of the applicant in a mental hospital.

C. As regards Article 6 para. 1 of the Convention

67. Article 6 para. 1 of the Convention provides, so far as relevant, as follows:

"In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ..."

68. The Commission first notes that the purpose of the proceedings in question is to determine whether or not legal capacity can be restored to the applicant, i.e. whether the applicant is entitled, through his own acts, to acquire rights and undertake obligations set out, inter alia , in the Civil Code.  The outcome of these proceedings is, therefore, directly decisive for the determination of the applicant's "civil rights and obligations".  Accordingly, the proceedings in question fall within the scope of Article 6 para. 1 of the Convention.   

69. The Commission further notes that although the proceedings started on 18 February 1987, it can only examine them 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).

70. The proceedings are still pending.  Thus, the period to be considered exceeds six years and two months.

71. The Commission recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular  circumstances of the case and with the help of the following criteria: the complexity of the case, the conduct of the parties and the conduct of the authorities dealing with the case (see Eur. Court HR, Vernillo v. France judgment of 20 February 1991, Series A no. 198, p. 12, para. 30).

72. The applicant submits that the proceedings in question have lasted unreasonably long.

73. The Government are of the opposite opinion.

74. The Commission notes that in the present case the courts are called upon to decide whether or not legal capacity can be restored to the applicant.  Thus, what is at stake for the applicant calls for special diligence in the conduct of the proceedings on the part of the authorities.

75. The Commission considers that the case is of some complexity due to the necessity to obtain an expert opinion on the applicant's state of health.  However, the Commission is of the opinion that the complexity of the case cannot be regarded as the principal reason for the length of the proceedings.

76. The Commission finds that the applicant contributed to the length of the proceedings in that he was unwilling to co-operate with experts, challenged the Regional Court judges and requested that his case should be dealt with by another court.  However, in the Commission's view, the applicant's conduct alone cannot explain the overall length of the proceedings.

77. In respect of the conduct of the Slovak authorities, the Commission notes that the Regional Court found that the District Court's decision of 1 April 1992 on an examination of the applicant in a mental hospital had been premature as the Čadca Town Office lacked standing to act as the applicant's guardian.  The District Court could proceed in an effective way with the case only after 9 September 1992 when it appointed the Čadca District Office as the applicant's guardian, i.e. after more than five months.

78. The Commission further notes that after the Regional Court had dismissed, on 30 November 1992, the applicant's appeal against the District Court's decision of 1 April 1992, the latter invited the  applicant to report to a mental hospital on 3 May 1993, i.e. with a lapse of more than five months.

79. More than seven months elapsed between the Supreme Court's decision of 6 March 1995 concerning the applicant's request for exclusion of the Regional Court's judges and the decision of the latter court of 30 October 1995 by which it quashed the first instance judgment of 23 November 1993.  In this respect, the Commission notes that the Regional Court's decision was motivated by the fact that the District Court had failed to hear the expert as required by the relevant provisions of the Code of Civil Procedure.  The case was, therefore, sent back to the District Court which had to decide on it anew.

80. Finally, the Commission notes that on 5 February 1996 the District Court decided to obtain a second expert opinion on the applicant's mental health.  It appointed a health institution in which this examination should be carried out on 21 October 1997, i.e. with a lapse of more than one year and seven months, and the Commission finds no relevant reasons that would justify such a delay.  It appears that the examination has not yet been carried out.

81. In view of these circumstances, the Commission considers that it cannot be said that the courts were diligent in the conduct of the case.  They are therefore mainly responsible for the overall length of the proceedings.

82. The Commission reaffirms that it is for Contracting States to organise their legal system in such a way that their courts can guarantee the right of everyone to obtain a final decision on disputes relating to civil rights and obligations within a reasonable time (see Eur. Court HR, Vocaturo v. Italy judgment of 24 May 1991, Series A no. 206-C, p. 32, para. 17).

83. In the light of the criteria established by the case-law and having regard to the circumstances of the present case as well as to the state of the proceedings at 18 March 1992, the Commission considers that the length of the proceedings has been excessive and failed to meet the "reasonable time" requirement.

CONCLUSION

84. The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 of the Convention.

D. As regards Article 8 of the Convention

85. Article 8 of the Convention provides, so far 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."

86. The Commission notes that it is not disputed between the parties that the forcible examination of the applicant's mental health amounted to an interference with his right to respect for his private life.  The Commission therefore finds that such an interference has occurred in the present case.  The question as to whether or not this interference can be justified, on the basis that it was "in accordance with the law", pursued one or more of the legitimate aims referred to in Article 8 para. 2 and was "necessary in a democratic society", must therefore be addressed.

87. It has not been contested before the Commission that the interference in question had a legal basis, namely Section 187 para. 3 and Section 52 para. 1 of the Code of Civil Procedure.  Furthermore, the Commission sees no reason why this basis should not be considered as being accessible, foreseeable and in accordance with the rule of law (see Eur. Court HR, Kruslin v. France judgment of 24 April 1990, Series A no. 176-A, p. 20, paras. 27 et seq.).

88. The applicant submits, in substance, that the interference with

his private life had no legitimate aim.

89. The Government maintain that the interference aimed at establishing whether the applicant's health permitted restoration of legal capacity to him and conclude that it pursued the legitimate aim of protection of health and morals.  They further contend, with reference to the experts' conclusions, that the interference also pursued the legitimate aim of protecting the rights of others, in that its purpose was to protect the society from the effects of the applicant's mental disease and, in particular, his tendency to vexatious litigation.

90. The Commission notes that the applicant was examined with a view to determining whether or not legal capacity could be restored to him.  The interference in question therefore pursued the aim of protecting the applicant's own rights and, subsidiarily , also the aim of protecting his health.  Accordingly, the interference in question had for its purpose aims which are legitimate within the meaning of para. 2 of Article 8.

91. As regards the necessity of the interference complained of, the applicant submits, in substance, that his examination in a mental hospital had no justification in a democratic society.

92. The Government are of the opposite opinion.  In their view, the examination was indispensable in order to proceed with the applicant's case and to provide effective protection to both his rights and the rights of others.  They maintain that the experts had found an in-patient examination necessary and that the applicant was only brought to the hospital after he had failed to come there voluntarily.

93. The Commission recalls that the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aims pursued.  In determining whether an interference was "necessary in a democratic society" the Convention organs will take into account that a margin of appreciation is left to the Contracting States.  Furthermore, when exercising their supervisory function, the Convention organs cannot confine themselves to considering the impugned decisions in isolation, but must apply an objective standard and look at them in the light of the case as a whole (see, mutatis mutandis , Eur. Court HR, Olsson v. Sweden judgment of 24 March 1988, Series A no. 130, pp. 31-32,  paras. 67-68 with further references).

94. In the present case the applicant gave an impetus to bringing the proceedings by his request of 2 February 1987.  However, the formal decision to start the proceedings was taken by the District Court in exercise of its discretionary power under Section 81 of the Code of Civil Procedure.  The Commission recalls that under Slovak law a court is not bound by the parties' submissions as regards the scope of the proceedings when, as in the present case, it examines the question whether legal capacity can be restored to a person.  Accordingly, the applicant has not been free to control the course and the content of the proceedings.

95. The Commission notes that, on the contrary, it has been for the District Court, after it decided to institute the proceedings and defined their scope, to proceed with the case in a way which ensures a speedy and effective protection of the rights at issue.  Such an obligation results from Section 6 of the Code of Civil Procedure and also from Article 6 para. 1 of the Convention which the Commission has found above to be applicable in the present case.

96. The Commission recalls that the purpose of the proceedings is to determine whether and, if so, to what extent the state of the applicant's health permits restoration of legal capacity to him.  In fact, the applicant has been entirely deprived of legal capacity since 1983 on the ground that he has been suffering from a lasting mental disease.  The Commission considers that this measure represents a fundamental interference with his private life.

97. The Commission is further of the opinion that when a person was deprived of legal capacity it may be appropriate, in particular when the initiative to this effect comes from the person concerned, that the courts establish whether such an interference continues to be justified.  The Commission recalls in this respect that under Section 10 (3) of the Civil Code courts shall modify or quash the decision on deprivation or restriction of a person's legal capacity when the reasons for the decision are no longer relevant.  In the Commission's view, the domestic courts are better placed than the Convention organs to establish whether there is a need for re-examination of a decision concerning a person's legal capacity.

98. Because of the complexity of such an assessment and the special knowledge required for carrying it out, it is normally not possible for a court to form its own opinion on the exact state of a person's mental health without having an expert opinion before it.  The Commission finds it therefore justified that the District Court sought to obtain an expert opinion on the applicant's mental health.

99. The District Court first attempted to obtain such an opinion in that it asked the applicant to undergo an out-patient examination.  However, after the applicant had failed to comply with the court's request, it concluded, with reference to an expert's recommendation, that the applicant should be examined in a mental hospital.  Both the public authority acting as the applicant's guardian and the public prosecutor who had joined the applicant in the proceedings consented to such an examination.  The applicant failed to comply with the District Court's request and it therefore ordered, after having warned the applicant in advance about such a possibility, that he should be brought to the hospital.

100. The Commission further notes that the applicant was brought to the hospital on 19 August 1993.  Pursuant to Section 187 (3) he could be examined there up to three months.  However, as he decided to co-operate with the expert, the examination was concluded on 2 September 1993, i.e. after two weeks.

101. The Commission is aware that the forcible examination of the applicant was likely to cause distress and emotional suffering to him. However, having regard to what was at stake for the applicant, the court's obligation to ensure a speedy and effective conduct of the proceedings once it has decided to institute them, to the fact that it was not possible, due to the applicant's conduct, to obtain the expert's opinion by other means, to the particular circumstances in which the examination was carried out as well as to the margin of appreciation left to the Slovak authorities in this matter, the Commission finds that the interference complained of was not disproportionate to the legitimate aims pursued.  It can, therefore, reasonably be regarded as "necessary in a democratic society" within the meaning of Article 8 para. 2

CONCLUSION

102. The Commission concludes, by 9 votes to 4, that in the present case there has been no violation of Article 8 of the Convention.

E. Recapitulation

103. The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 of the Convention (para. 84).

104. The Commission concludes, by 9 votes to 4, that in the present case there has been no violation of Article 8 of the Convention (para. 102).

   M.-T. SCHOEPFER                              J.-C. GEUS

      Secretary                                  President

to the Second Chamber                      of the Second Chamber

(Or. English)

DISSENTING OPINION OF Mr M.A. NOWICKI, Mrs G.H. THUNE,

MM. P. LORENZEN AND E.A. ALKEMA

We are unable to agree with the majority that there has been no violation of Article 8 of the Convention in this case for the following reasons.

In the present case two rights of fundamental nature are at stake: on the one hand, restoration of the applicant's legal capacity and, on the other hand, the right to have the integrity of the person protected as required by Article 8 of the Convention.  Moreover, it is a paradoxical case in that the applicant seeks to materialise the restoration of his legal capacity but refuses to be examined for that purpose in a mental hospital.

Of course, a waiver of a right guaranteed in the Convention - in so far as it is permissible - is possible under certain conditions.  The European Court held: [that it] "must be established in an unequivocal manner" [...] [and] "that in the case of procedural rights a waiver, in order to be effective for the Convention purposes, requires minimum guarantees commensurate to its importance" (Eur. Court HR, Pfeifer and Plankl v. Austria judgment of 25 February 1992, Series A no. 227, pp. 16-17, para. 37).  The Commission has added in Poitrimol v. France (Eur. Court HR, judgment of 23 November 1993, Series A no. 277-A, p. 28, para. 46): "In particular, waiver of the right to defend oneself is inconceivable save in exceptional cases and must in no case be the result of constraint."

In the instant case the restoration of the applicant's legal capacity required, in the domestic court's opinion, an examination which the applicant, however, considered intolerable and, therefore, could only be effected through restraint (  92 of the report). Yet, since the power of the court in virtue of Section 186 (3) of the Code of Civil Procedure apparently is of a discretionary character and since the forcible examination of the applicant in a mental hospital for two weeks is a serious interference with his private life, the domestic court ought - in our opinion - to have refrained from such an order.  The court could instead have considered the unwillingness on the part of the applicant as a waiver of his right to have his legal capacity restored to him.

In balance, we find that the interference with the applicant's private life was not "necessary in a democratic society" within the meaning of Article 8 para. 2 of the Convention and that, accordingly, the aforesaid Article has been violated.