Lexploria

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

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