Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 31534/96

by Wilibald Rudolf MATTER

against the Slovak Republic

The European Commission of Human Rights (Second Chamber) sitting

in private on 16 September 1997, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

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 7 August 1993 by

Wilibald Rudolf MATTER against the Slovak Republic and registered on

20 May 1996 under file No. 31534/96;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

17 January 1997 and the observations in reply submitted by the

applicant on 8 February 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Slovak national born in 1925. He is disabled

and resides in Cadca.

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

summarised as follows.

A. Particular circumstances of the case

In 1976 the applicant's legal capacity was restricted. In 1983

the Cadca District Court (Okresny súd - "the District Court") deprived

the applicant of legal capacity entirely.

On 18 February 1987 the District Court, at the applicant's

initiative, introduced proceedings pursuant to Section 81 of the Code

of Civil Procedure (see "The relevant domestic law" below) with a view

to determining whether legal capacity could be restored to the

applicant. In 1989 the District Court dismissed the applicant's

request. In 1990 the Supreme Court (Najvyssí súd) quashed the

aforesaid decision and sent the case back to the District Court. The

latter appointed an expert with a view to examining the applicant's

mental health.

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 mental health could only be carried out by examining

him in a mental hospital.

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. 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.

The District Court charged 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 whether the

applicant's state of health changed to such an extent that legal

capacity could be restored to him entirely.

On 30 November 1992 the Banská Bystrica Regional Court (Krajsky

súd) dismissed the applicant's appeal against the District Court's

decision of 1 April 1992. It found that the Cadca Local Office

(Obvodny úrad), i.e. the administrative authority which had custody of

the applicant, had consented to his examination in a mental hospital,

and that the applicant was not entitled to lodge an appeal.

In its aforesaid 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.

The Regional Court further stated that the applicant had appealed

against the District Court's decision as he "disagreed with an

examination in a mental hospital and argued that he had been entirely

deprived of his legal capacity without justification".

On 13 May 1992 the District Court invited the applicant to

report, on 21 May 1992, to the mental hospital in Sucany. 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. On 3 May 1993 the District

Court invited the applicant again to report, on 12 May 1993, to the

mental hospital. 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.

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.

On 23 November 1993 the District Court restricted the applicant's

legal capacity in that he was not entitled to act before public

authorities on his own, to conclude contracts and assume obligations

in writing and to have a regular occupation. The court referred to the

expert's report of 29 October 1993 according to which the applicant,

who had undergone a brain operation in 1984 and had had several heart

attacks, suffered from paranoid psychosis and from an organic

psychosyndrome.

On 14 September 1993 the applicant complained to the

Constitutional Court (Ústavny súd) that, inter alia, he had been

forcibly examined in a mental hospital and that various authorities had

dealt with his submissions with unreasonable delays. In his letter the

applicant stated that on 1 April 1992 the District Court had decided,

against his will, to appoint as expert in the applicant's case the

director of the mental hospital in Sucany, that on 30 November 1992 the

Banská Bystrica Regional Court had dismissed his appeal against this

decision, and that on 19 August 1993 he had been brought to the

hospital by two armed policemen.

On 20 September 1993 the applicant supplemented his submissions.

On 9 December 1993 a judge of the Constitutional Court requested the

applicant to supplement his submissions in accordance with the relevant

provisions of the Constitutional Court Act.

The applicant failed to supplement his submissions within the

time-limit set for this purpose, and on 20 January 1994 the

Constitutional Court rejected the petition on the ground that it did

not contain the information provided for in Section 20 of the

Constitutional Court Act.

The applicant appealed against the District Court's decision of

23 November 1993 and requested that legal capacity should be restored

to him entirely. On 30 August 1994 the Supreme Court rejected the

applicant's request that his case should be transmitted to the

Bratislava City Court (Mestsky súd). On 6 March 1995 the Supreme Court

dismissed the applicant's request for exclusion of the Banská Bystrica

Regional Court's judges dealing with his appeal.

On 30 October 1995 the Banská Bystrica Regional Court quashed the

first instance decision and sent the case back to the District Court

as the latter had not heard the expert who had examined the applicant.

On 12 and 17 January 1996 respectively the Ministry of Justice

and the President of the Banská Bystrica 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 as he lacked legal capacity, he

could only transmit his submissions to the court through the

intermediary of his guardian.

On 5 February 1996 the District Court decided to obtain a second

expert opinion on the applicant's mental health and adjourned the

proceedings sine die.

On 31 October 1996 the District Court requested the Ministry of

Health to indicate a health institution that 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.

On 22 November 1996 the head of the Cadca District Office

(Okresny úrad) 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 Cadca be appointed guardian

instead.

B. Relevant domestic law

Constitutional provisions

Pursuant to Article 17 para. 6 of the Constitution a person may

be held in a medical institution without his or her consent only in

cases provided for by law.

Article 19 para. 2 of the Constitution guarantees to everyone the

right to be free from unjustified interference with his or her privacy

and family life.

Article 48 para. 2 of the Constitution guarantees to everyone the

right to have his or her case tried, inter alia, without unreasonable

delay.

Pursuant to Article 130 para. 3 of the Constitution the

Constitutional Court may commence proceedings also upon a petition

submitted by an individual or a corporation claiming to have rights

violated.

Constitutional Court Act

Section 20 of the Constitutional Court Act provides as follows:

"1. A proposal to start proceedings shall be submitted to the

Constitutional Court in writing. Such a proposal shall specify

which matter it concerns, by whom it is submitted, which decision

the person concerned seeks to obtain, the reasons on which the

proposal is based and the evidence to be taken. A proposal to

start proceedings shall be signed by the person concerned or his

or her representative.

2. The provisions of para. 1 are applicable also to bringing a

petition [pursuant to Article 130 para. 3 of the Constitution]".

Code of Civil Procedure

Section 52 para. 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 the person concerned was previously advised of such a

possibility.

Pursuant to Section 81 courts are entitled to start proceedings

ex officio in cases concerning, inter alia, a person's legal capacity.

In such a case the president of the court's chamber shall issue a

decision which is to be delivered to the participants.

Section 186 para. 3 entitles persons who were deprived of legal

capacity to lodge a proposal to start proceedings with a view to having

their legal capacity restored.

In proceedings concerning a person's legal capacity the court

shall, pursuant to Section 187 para 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 it is considered necessary for

examination of his or her state of health.

Pursuant to Section 190 a court shall quash a judgment if it is

later discovered that the conditions for deprivation of a person of his

or her legal capacity or its restriction were not met.

State Administration of Courts Act

According to Section 17 para. 1 of the State Administration of

Courts Act (Zákon o sídlach a obvodoch súdov Slovenskej republiky,

státnej správe súdov, vybavovaní stazností a o volbách prísediacich)

No. 80/1992, any natural person or corporation can turn to State

authorities responsible for the administration of courts (the Ministry

of Justice, the President and Vice-President of the Supreme Court and

the Presidents and Vice-Presidents of Regional and District Courts)

with complaints only in cases of delayed proceedings or misconduct

caused by improper performance of and/or undignified interference with

the proceedings by officers of the court. According to Sections 24 -

27 of the Act the responsible authority is required to establish all

relevant facts and, if necessary, hear the persons concerned.

Examination of the complaint is to be terminated within two months, and

the complainant is to be informed in writing of the conclusion.

COMPLAINTS

The applicant complains that legal capacity has not been restored

to him entirely, that he was examined in a mental hospital against his

will and that the proceedings concerning his claim that legal capacity

should be restored to him have lasted unreasonably long.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 7 August 1993 and registered

on 20 May 1996.

On 16 October 1996 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on

17 January 1997, after an extension of the time-limit fixed for that

purpose. The applicant replied on 8 February 1997.

On 4 March 1997 the Commission granted the applicant legal aid.

On 18 March 1997 the lawyer originally chosen by the applicant informed

the Commission that the applicant does not wish to be represented by

a Slovak lawyer in the proceedings before the Commission.

THE LAW

1. The Government first point out that the applicant did not

introduce the application through the intermediary of his guardian.

They contend that according to an expert's finding the applicant is a

person suffering from mental disorder of lasting character who was

deprived of legal capacity, and that in accordance with Section 38

para. 1 of the Civil Code all his acts aiming at the determination of

his rights and obligations are void. The Government therefore contend

that the Commission should examine whether the applicant has a standing

to introduce an application pursuant to Article 25 (Art. 25) of the

Convention.

The Commission recalls that Article 25 (Art. 25) of the

Convention grants the right to introduce an application before the

Commission to "any person" regardless of his or her status under

domestic law (see, mutatis mutandis, No. 1527/62, Dec. 4.10.62,

Yearbook 5 pp. 238, 246). Accordingly, the Commission considers that

the applicant is entitled, of his own accord and without being

represented by his guardian, to introduce an application before the

Commission.

2. The applicant complains that legal capacity has not been restored

to him entirely.

The Commission notes that the proceedings concerning the

applicant's claim in this respect are still pending before the District

Court.

It follows that this part of the application is premature and,

accordingly, manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

3. The applicant further complains that he was examined in a mental

hospital against his will. The Commission will examine this complaint

under Article 8 (Art. 8) of the Convention which provides, insofar 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 Government contend that the applicant has not exhausted

domestic remedies as he did not introduce his petition to the

Constitutional Court in accordance with the formal requirements set out

in the Constitutional Court Act. They contend, in particular, that the

applicant did not submit his petition through the intermediary of his

guardian and that he failed to supplement it as requested by the

Constitutional Court.

To the extent that the Government contend that the applicant did

not submit his petition through the intermediary of his guardian, the

Commission recalls that persons wishing to bring an application before

the Commission are only requested to exhaust remedies which are

accessible, i.e. the person concerned must be able to institute the

relevant proceedings himself or herself (see No. 12604/86, Dec.

10.7.91, D.R. 70, p. 125). For this reason the Commission considers

that a petition to the Constitutional Court would only meet the

requirement of accessibility if the applicant had the right to lodge

it of his own initiative and without the intermediary of the public

authority which was appointed his guardian.

As to the Government's objection that the applicant failed to

comply with the requirements laid down in Section 20 of the

Constitutional Court Act, the Commission recalls that the persons

concerned are normally required, in order to exhaust domestic remedies

in accordance with Article 26 (Art. 26) of the Convention, to pursue

those remedies available under national law, as interpreted and applied

by the competent authorities (see, e.g., No. 9022/80, Dec. 13.7.83,

D.R. 33, p. 21).

However, the European Court of Human Rights has recognised that

Article 26 (Art. 26) must be applied with some degree of flexibility

and without excessive formalism. The rule of exhaustion of domestic

remedies is neither absolute nor capable of being applied

automatically; in reviewing whether it has been observed it is

essential to have regard to the particular circumstances of each

individual case. Accordingly, realistic account must be taken not only

of the existence of formal remedies in the legal system of the

Contracting Party concerned but also, inter alia, of the personal

circumstances of the applicants (see Eur. Court HR, Akdivar v. Turkey

judgment of 16 September 1996,

Reports 1996-IV, No. 15, para. 69).

In the present case the applicant lodged, on 14 September 1993,

a petition before the Constitutional Court. On 20 September 1993 the

applicant supplemented his submissions. On 9 December 1993 a judge

of the Constitutional Court requested the applicant to supplement his

submissions in accordance with the relevant provisions of the

Constitutional Court Act. As he failed to do so within the time-limit

set for this purpose, the Constitutional Court rejected his petition

on the ground that it did not contain the information provided for in

Section 20 of the Constitutional Court Act.

The Commission recalls that Section 20 of the Constitutional

Court Act provides for a petition to specify which matter it concerns,

by whom it is submitted, which decision the petitioner seeks to obtain,

the reasons on which the proposal is based and the evidence to be

taken. A petition to start proceedings shall be signed by the claimant

or his or her representative.

In his submissions to the Constitutional Court of 14 September

1993 the applicant expressly complained that he had been forcibly

examined in a mental hospital. In particular, he stated that on

1 April 1992 the District Court had decided, against his will, to

appoint as expert in his case the director of the mental hospital in

Sucany, that on 30 November 1992 the Banská Bystrica Regional Court had

dismissed his appeal against this decision and that subsequently he was

brought to the hospital by two armed policemen.

The Commission considers that these submissions cover, at least

in substance, the complaint which the applicant raises before the

Commission. The Commission further notes that the respondent

Government have not specified which formal requirements of Section 20

of the Constitutional Court Act the applicant failed to comply with.

In these circumstances, and having regard to the personal

circumstances of the applicant who is deprived of his legal capacity

and, according to the information submitted by the respondent

Government, suffers from a mental disorder of lasting character, the

Commission considers, and even assuming that a petition pursuant to

Article 130 para. 3 of the Constitution represented an effective remedy

in the applicant's case, that this part of the application cannot be

rejected for the applicant's failure to exhaust domestic remedies.

As to the merits, the Government admit that the examination of

the applicant in a mental hospital amounted to an interference with his

rights under Article 8 para. 1 (Art. 8-1) of the Convention but

consider that this interference was compatible with the requirements

of para. 2 of Article 8 (Art. 8-2). In particular, the Government

contend that the applicant was examined in accordance with Section 187

para. 3 of the Code of Civil Procedure, that his examination pursued

the legitimate aim of protection of health and morals and of the rights

and freedoms of others and that this interference was necessary in a

democratic society within the meaning of Article 8 para. 2

(Art. 8-2) of the Convention.

The applicant disagrees with the Government and contends, in

substance, that his right to respect for private life has been

violated.

After an examination of this complaint in the light of the

parties' submissions, the Commission considers that it raises questions

of fact and law which can only be determined by an examination of the

merits. It follows that this part of the application cannot,

therefore, be declared inadmissible as being manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

No other grounds of inadmissibility have been established.

4. Finally, the applicant complains that the proceedings concerning

the restoration of his legal capacity have lasted unreasonably long.

The Commission will examine this complaint under Article 6 para. 1

(Art. 6-1) of the Convention which, insofar as relevant, provides as

follows:

"In the determination of his civil rights and obligations ...

everyone is entitled to a ... hearing within a reasonable time

..."

The Government contend that the applicant failed to exhaust

domestic remedies as he did not lodge, through the intermediary of his

guardian, a complaint pursuant to Section 17 para. 1 of the State

Administration of Courts Act No. 80/1992 and, subsequently, a petition

pursuant to Article 130 para. 3 of the Constitution.

The Commission recalls the Convention organs' case-law, according

to which the decisive question in assessing the effectiveness of a

remedy concerning a complaint about the length of proceedings is

whether the applicant can raise this complaint before domestic courts

by claiming specific redress; in other words, whether a remedy exists

that could answer his complaints by providing a direct and speedy, and

not merely indirect, protection of the rights guaranteed in Article 6

para. 1 (Art. 6-1) of the Convention (see Eur. Court HR, Deweer v.

Belgium judgment of 27 February 1980, Series A no. 35, p. 16, para.

29). For a remedy to be effective, it must be accessible, that is, the

person concerned must be able to institute the relevant proceedings

himself or herself (see, mutatis mutandis, No. 12604/86, Dec. 10.7.91,

D.R. 70, p. 125).

As regards the administrative remedy referred to by the

Government, i.e. the complaint under Section 17 para. 1 of the State

Administration of Courts Act, the Commission observes that the

applicant pursued this remedy in substance. In fact, the applicant's

complaints about delays in the proceedings concerning his case were

transmitted to the President of the Cadca District Court. However, the

latter refused to deal with these complaints as under Slovak law the

applicant lacked capacity to introduce them.

It is true that the applicant could have requested the public

authority exercising the function as his guardian to lodge such a

complaint on his behalf. However, the use of such a remedy depended

on the decision of that authority. In the Commission's view, such a

remedy does not meet the requirement of accessibility within the

meaning of the Convention organs' case-law.

As regards the petition provided for in Article 130 para. 3 of

the Constitution, the Commission recalls that that remedy can give rise

to a declaration of excessive length of proceedings, but it is not

capable of accelerating the proceedings which are still pending (see

No. 25006/94, Dec. 4.3.97, D.R. 88-A, pp. 34 and 39).

In these circumstances, the Commission considers that the

application cannot be declared inadmissible for non-exhaustion of

domestic remedies.

As regards the merits, the Government submit that they cannot

comment on the length of the proceedings as the proceedings are still

pending.

The applicant submits, in substance, that the proceedings have

lasted unreasonably long.

The Commission notes that the relevant period did not begin as

from the institution of the proceedings in February 1987, but only 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). The proceedings

are still pending before the District Court. The period to be

considered thus amounts to five years and almost six months.

The Commission considers, in the light of the criteria

established by the case-law of the Convention organs on the question

of "reasonable time", and having regard to all the information in its

possession, that this complaint raises issues of fact and law requiring

an examination of the merits.

For these reasons, the Commission,

by a majority,

DECLARES ADMISSIBLE, without prejudging the merits, the

applicant's complaints that he was examined against his will in

a mental hospital and that the proceedings concerning his case

have lasted unreasonably long;

unanimously,

DECLARES INADMISSIBLE the remainder of the application.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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MATTER v. THE SLOVAK REPUBLIC

MATTER v. THE SLOVAK REPUBLIC

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