Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 33466/96

by Jozef SINKO

against the Slovak Republic

The European Commission of Human Rights (Second Chamber) sitting

in private on 20 May 1998, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

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 10 September 1996

by Jozef SINKO against the Slovak Republic and registered on

16 October 1996 under file No. 33466/96;

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 Slovak national born in 1951. He is a fireman

and resides in Trnava.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

A. The particular circumstances of the case

In September 1993 a weekly published a photograph from a meeting

of the inhabitants of a quarter in Trnava. The photograph showed a

detailed picture of the applicant and of several other persons standing

behind him.

Subsequently the applicant received a clipping with the aforesaid

photograph. It was accompanied by a handwritten threat that his throat

would be cut because he had been opposed, at the aforesaid meeting,

to accommodation of persons of Roma origin in a certain part of Trnava.

The message was signed "Gypsies from Trnava".

The applicant complained to the police, but the authors of the

threat could not be found.

On 17 October 1993 the applicant informed the publisher of the

weekly that the publication of his photograph had resulted in threats

to his life and proposed that 5,000 Slovak crowns be paid to him by way

of settlement.

On 17 December 1993 the applicant sued the publisher for

interfering with his right to protection of his personality before the

Bratislava Regional Court (Krajsky súd). He alleged that the

publication of his photograph had caused serious difficulties to him

and his family and claimed a compensation of 100,000 Slovak crowns.

The applicant further stated that his family's budget bordered the

existential minimum and requested that he be exempted from court fees.

On 11 October 1994 the Bratislava Regional Court requested the

applicant to pay, within five days, court fees of 6,000 Slovak crowns

pursuant to item 7 (d) of the Court Fees Rates (see "Relevant domestic

law and practice" below).

On 14 October 1994 the applicant replied that he was not able to

pay the requested sum within the five days' time-limit. He submitted

details of his personal situation and stated that he could pay the fees

only by means of a loan or by monthly instalments.

On 28 February 1995 the Bratislava Regional Court discontinued

the proceedings on the ground that the applicant had neither paid the

fees, nor submitted documents justifying his exemption from their

payment. The decision was served on the applicant on 13 April 1995.

On 11 April 1995 the applicant supplemented his action by

providing details of the interferences with his private life after the

publication of the photograph.

On 21 April 1995 the applicant appealed against the Regional

Court's decision of 28 February 1995. He alleged that he had requested

an exemption from court fees in his action of 17 December 1993. The

applicant further stated that he was not able to pay the fees as he was

on a long-term sickness leave and that the sickness benefits

constituted, at that time, his only income.

On 16 November 1995 the Supreme Court (Najvyssí súd) quashed the

Regional Court's decision of 28 February 1995 on the ground that the

latter had not examined the applicant's request for exemption from

court fees of 17 December 1993.

On 18 December 1995 the applicant complained to the Ministry of

Justice about delays in the proceedings and about the Regional Court's

decision to discontinue the proceedings. He was informed that his

complaint had been transferred to the president of the Regional Court.

On 29 January 1996 the applicant reiterated his request for

exemption from court fees. He informed the Regional Court that he had

been ill until 30 June 1995, and that in August 1995 he had been

transferred, due to deterioration of his health, to a job with less

remuneration. The applicant further explained that he was in charge

of his wife and that, until 20 July 1995, he had also been in charge

of his son. He stated that he was reimbursing a loan and that he could

not afford to contract another one.

On 17 April 1996 the Bratislava Regional Court dismissed the

applicant's request for exemption from court fees. It established that

in 1995 the applicant's net monthly income had amounted to 6,132 Slovak

crowns and noted that the applicant had not shown that he had been

transferred to a less remunerated job. The court considered, with

reference to the applicant's income and also to his personal situation

and to the personal character of his action, that the applicant was not

entitled to an exemption from court fees.

The Regional Court further expressed its opinion that an

exemption from court fees could be granted, for example, when a

claimant was unemployed or when he or she had no other income apart

from social allowances.

On 22 April 1996 the applicant appealed. He alleged that in the

first half of 1995 he had lived exclusively on sickness benefits

totalling 28,635 crowns and that his net monthly income in 1995, after

deduction of the sickness benefits and social allowances, amounted to

3,230 crowns. The applicant further alleged that the Regional Court

had disregarded the fact that his remuneration had been reduced and

that he was reimbursing a loan. Finally, he complained that there had

been unjustified delays in the proceedings.

On 30 May 1996 the Supreme Court dismissed the applicant's

appeal. It found that the applicant's objections as to the amount of

his net income could not be upheld. The Supreme Court further held,

with reference to the reasons set out in the Regional Court's decision

of 22 April 1996, that the first instance court had decided on the

applicant's request correctly.

On 9 September 1996 the Bratislava Regional Court discontinued

the proceedings concerning the applicant's claim for protection of his

personality as the applicant had failed to pay the court fees.

On 24 February 1997 the Supreme Court upheld the aforesaid

decision with reference to Section 10 para. 2 of the Court Fees Act.

The Supreme Court recalled that the applicant was under an obligation

to pay the fees as from 15 August 1996, i.e. after the service of its

decision to dismiss the applicant's request for exemption from court

fees. The Supreme Court further pointed out that by the time when it

was deciding on the appeal against the first instance decision to

discontinue the proceedings the applicant still had not paid the fees.

B. Relevant domestic law and practice

Code of Civil Procedure

Pursuant to Section 43 para. 2 of the Code of Civil Procedure,

a court shall discontinue the proceedings if it cannot proceed with a

case because of a party's failure, despite a prior warning by the

president of the chamber, to supplement the submissions or eliminate

shortcomings in them.

Under Section 138 para. 1, the president of a court's chamber

may, upon request, exempt a party to the proceedings from all or part

of court fees when it is justified by the situation of the person

concerned unless the claim is of vexatious nature or lacks prospects

of success.

The Court Fees Act

Payment of court fees is governed by Act No. 71/1992 of

17 March 1992 on Court Fees and Fee for Copies of a Person's Criminal

Record (Zákon o súdnych poplatkoch a poplatku za vypis z registra

trestov), as amended.

Pursuant to Section 10 para. 2 of the aforesaid Act, a court

shall discontinue the proceedings if, within a supplementary period set

by it, fees which are due at the moment of lodging an action have not

been paid in full unless it has started dealing with the merits of the

case and provided that the claimant has been informed that in case of

his or her failure to pay the fees the proceedings would be

discontinued.

Section 10 para. 3 provides that when the fees are paid before

the expiry of the time-limit for lodging an appeal against a decision

by which the proceedings were discontinued for a person's failure to

pay them, the first instance court shall quash its decision to

discontinue the proceedings.

The amount of court fees is fixed in the Court Fees Rates annexed

to the Court Fees Act.

Pursuant to item 7 (d) of the Court Fees Rates, fees payable at

the moment of introduction of a claim for protection of one's

personality shall amount to 2,000 Slovak crowns plus four per cent of

the non-pecuniary damages claimed.

Established judicial practice

In accordance with the established judicial practice (Collection

of Judicial Decisions and Opinions of the Supreme Court, No. 22/1971

and No. 14/1976), a court shall not, prior to taking a decision on a

request for exemption from court fees, order a participant to the

proceedings to pay the fees or discontinue the proceedings on the

ground that the fees were not paid.

When deciding on a request for exemption from court fees, courts

shall consider the appraised needs of the claimant with regard to his

or her personal, financial and family situation as well as the nature

of the claim and the amount of the fees to be paid (Collection of the

Supreme Court's opinions, conclusions and analyses of the judicial

practice, volume I, p. 21).

COMPLAINTS

The applicant complains that following the publication of his

photograph he was exposed to various threats and that as a result of

the dismissal of his request for exemption from court fees he was

deprived of adequate protection in this respect. He alleges a

violation of Articles 5, 8 and 10 of the Convention.

The applicant further complains under Article 6 para. 1 of the

Convention that the proceedings concerning his action for protection

of his personality lasted unreasonably long.

Finally, the applicant complains under Article 13 of the

Convention that he had no effective remedies before Slovak authorities

as regards the alleged violation of his rights under the Convention.

THE LAW

1. The applicant complains that he could not have his claim for

protection of his personality examined by a court because he was not

able to pay the court fees, and that the proceedings concerning the

aforesaid claim lasted unreasonably long. The Commission has examined

both complaints under Article 6 para. 1 (Art. 6-1) of the Convention

which provides, in 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[n] ... tribunal established by law."

...

a) To the extent that the applicant complains about the dismissal

of his request for exemption from court fees, the Commission recalls

that Article 6 para. 1 (Art. 6-1) of the Convention embodies the right

to a court, of which the right of access, that is the right to

institute proceedings before courts in civil matters, constitutes one

aspect.

This right of access, however, is not absolute but may be subject

to limitations since the right by its very nature calls for regulation

by the State. Nonetheless the limitations applied must not restrict

or reduce the access left to the individual in such a way or to such

an extent that the very essence of the right is impaired. Furthermore,

a restriction on this right must pursue a legitimate aim and there must

be a reasonable relationship of proportionality between the means

employed and the aim sought to be achieved (see Eur. Court HR, Philis

v. Greece judgment of 27 August 1991, Series A no. 209, p. 20,

para. 59; Tolstoy-Miloslavsky v. the United Kingdom judgment of

13 July 1995, Series A no. 316, pp. 78-79, para. 59).

The Commission notes that in the present case the court fees

imposed on the applicant amounted to 6,000 Slovak crowns. Their amount

was determined pursuant to item 7 (d) of the Court Fees Rates,

according to which the court fees payable at the moment of introduction

of a claim for protection of one's personality shall amount to 2,000

Slovak crowns plus four per cent of the non-pecuniary damages claimed.

The amount the applicant was invited to pay does not appear, as

such, to be excessive. However, since the applicant alleges that he

could not pay it, the Commission must examine whether the imposition

of the fees in question was compatible with the applicant's right to

access to a court.

The Commission recalls that the Regional Court established that

the applicant's net monthly income in 1995 had amounted to 6,132 Slovak

crowns. It found, after having considered the applicant's income, his

personal situation and the personal character of his action, that the

applicant was not entitled to be exempted from court fees. This

decision was subsequently reviewed by the Supreme Court which found no

reason to reach a different conclusion on the applicant's request.

Thus the Slovak courts concluded, on the basis of the information

before them, that the applicant's personal situation was not such that

he could be exempted from the obligation to pay the fees, and there is

nothing before the Commission to show that the domestic courts

exercised their power of appreciation in an arbitrary manner.

The Commission also recalls that in his letter of 14 October 1994

the applicant informed the Regional Court that he could pay the fees

by monthly instalments. In fact, it was open to the applicant to pay

the fees until the final decision to discontinue the proceedings

concerning his action was delivered by the Supreme Court on

24 February 1997. However, by the aforesaid date the applicant had not

made any payment to this effect. Nor has the applicant substantiated

before the Commission his allegation that he was unable, throughout the

time when his case was pending before the Slovak courts, to collect the

sum in question.

In view of the above circumstances, the Commission considers that

the imposition of the fees in question on the applicant neither

impaired the very essence of his right of access to court nor was

disproportionate for the purposes of Article 6 para. 1 (Art. 6-1).

b) The applicant further complains that the proceedings concerning

his claim for protection of his personality lasted unreasonably long.

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).

The proceedings in question were instituted on 17 December 1993

and the final decision on the applicant's claim was delivered by the

Supreme Court on 24 February 1997. Thus, the period to be taken into

consideration amounts to three years, two months and seven days.

The Commission notes, in particular, that the Regional Court

started dealing with the case on 11 October 1994, i.e. more than nine

months after the applicant had lodged his action, by inviting the

applicant to pay the fees. On 28 February 1995 the Regional Court

discontinued the proceedings on the ground that the applicant had not

paid the fees. However, on 16 November 1995 the Supreme Court quashed

the decision of 28 February 1995 as the Regional Court had failed to

decide on the applicant's request for exemption from court fees as

required by the established judicial practice. The Regional Court then

examined this request and dismissed it on 17 April 1996. The Supreme

Court upheld this decision on 30 May 1996. Subsequently, the Regional

Court discontinued the proceedings for the applicant's failure to pay

the fees on 9 September 1996, and the Supreme Court upheld this

decision on 24 February 1997.

The Commission has noted that at the initial stage of the

proceedings there were certain delays which were apparently due to the

way in which the Regional Court dealt with the case. Notwithstanding

these delays, the Commission considers, in the light of the aforesaid

criteria established by the case-law and having regard to the

circumstances of the present case, that the length of the proceedings

in question did not exceed the "reasonable time" requirement set out

in Article 6 para. 1 (Art. 6-1) 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 further complains that following the publication

of his photograph he was exposed to various threats and that Slovak

authorities failed to provide adequate protection to him in this

respect. He alleges a violation of Article 8 (Art. 8) of the

Convention which provides, in 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."

The Commission first notes that there is no question in the

present case of any involvement by the respondent Government in the

contentious publication of the applicant's photograph and the threats

to which the applicant was exposed thereafter.

It is true that in limited circumstances the Convention will

impose a positive obligation on a High Contracting Party to protect the

right to respect for private life (see Eur. Court HR, X and Y v. the

Netherlands judgment of 26 March 1985, Series A no. 91, p. 11,

para. 23).

In this respect, the Commission notes that the applicant had a

possibility of seeking redress before the courts by means of an action

for protection of his personality. He availed himself of this

opportunity but the proceedings were discontinued as the applicant had

failed to pay the court fees as required by the Court Fees Act. The

Commission has found above that the decision to discontinue the

proceedings neither impaired the very essence of the applicant's right

of access to court nor was disproportionate for the purposes of

Article 6 para. 1 (Art. 6-1).

For similar reasons, the Commission considers that in the

particular circumstances of the case the decision to discontinue the

proceedings does not cast doubt on the effectiveness of the remedies

available under Slovak law in providing protection for private life.

Accordingly, the Commission is of the opinion that in the present case

there is no appearance of a failure to respect the applicant's rights

under Article 8 (Art. 8) 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.

3. The applicant further complains under Article 13 (Art. 13) of the

Convention that he did not have an effective remedy before the domestic

authorities as regards the alleged violation of his rights under

Articles 6 para. 1 and 8 (Art. 6-1, 8) of the Convention.

However, the guarantees of Article 13 (Art. 13) apply only to a

grievance which can be regarded as "arguable" (see Eur. Court HR,

Powell and Rayner v. the United Kingdom judgment of 21 February 1990,

Series A no. 172, p. 14, para. 31, with further references). In the

present case the Commission has rejected the substantive claims as

disclosing no appearance of a violation of the Convention.

Accordingly, they cannot be regarded as "arguable".

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.

4. The Commission has also examined the applicant's complaints under

Articles 5 and 10 (Art. 5, 10) of the Convention, both taken alone and

in conjunction with Article 13 (Art. 5+13, 10+13), but finds, to the

extent that they have been substantiated and are within its competence,

that they do not disclose any appearance of a violation of the rights

and freedoms set out in 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.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

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

Secretary President

to the Second Chamber of the Second Chamber

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SINKO v. THE SLOVAK REPUBLIC

SINKO v. THE SLOVAK REPUBLIC

LEXI