Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28407/95

by Dusan OLLE

against the Slovak Republic

The European Commission of Human Rights (Second Chamber) sitting

in private on 23 January 1996, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

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 May 1995 by

Mr. Dusan OLLE against the Slovak Republic and registered on

1 September 1995 under file No. 28407/95;

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 1953. He is disabled

and resides in Bratislava.

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

summarised as follows.

On 11 June 1992 the applicant's marriage, out of which a son was

born in 1985, was dissolved by decision of the Bratislava 3 District

Court (Obvodny súd). The court awarded custody of the child to the

mother. Under the visiting arrangements ordered by the court the

applicant was entitled to meet his son for 10 hours every fortnight.

On 14 October 1993 the Bratislava 3 District Court extended the

visiting arrangements at the applicant's request. The applicant was

allowed to meet his son from 4 to 6 p.m. every second Wednesday and

between Saturday 8 a.m. and Sunday 5 p.m. every fortnight. In

addition, he was permitted to stay with the son for part of the summer

holidays and also for part of the spring, Christmas and Easter

holidays.

On 14 March 1994 the applicant lodged a claim for further

extension of his visiting rights. He requested, inter alia, that he

should be entitled to meet his son as from Friday 5 p.m. (instead of

Saturday morning) every fortnight and for 30 days (instead of 15 days)

during the summer holidays.

The applicant maintained that his son does not prepare for school

on Friday afternoons and declared that he was ready to help the son

with home-work if necessary. He submitted evidence that he was able

to bear the costs of longer stay of his son with him in the summer.

The applicant also asked for reduction of the maintenance he was

required to pay.

The claim was dismissed by the Bratislava 3 District Court on

13 May 1994. Although pursuant to Section 28 of the Family Act (Zákon

o rodine) the court could modify the existing parental rights, it found

no new circumstances justifying it. In the court's view, the

applicant's visiting rights granted on 14 October 1993 were sufficient

and appropriate for both the son and the father. The court found no

reason to modify the maintenance.

In particular, the court noted that the regular contacts had

strengthened the child's emotional links to his father. The son

suffered from minor cerebral dysfunction which influenced his behaviour

at school. He stayed at school until 4 p.m. except on Fridays when his

mother, who had arranged working hours for that purpose, fetched him

at noon. In the afternoons the son usually did home-work and played

with friends.

Furthermore, the court held that it was impossible to tell how

the son's two weeks' stay during the summer holidays (which was to take

place for the first time) would turn out and what would be its

financial impact on the applicant.

The applicant was requested by the District Court to submit a

psychiatrist's certificate. It appears that the mother did not make

any submission to the court as regards the applicant's request for

extension of his visiting rights. The social authority left the

decision with the court.

On 22 August 1994 the applicant lodged an appeal with the

Bratislava City Court (Mestsky súd). He showed that he was able to

meet the expense of having his son stay with him during the summer

holidays. He further claimed that the first instance court had no

reason to express doubts as to the way in which the stay would take

place since the son had stayed with him for six days during the

Christmas holidays.

The applicant also alleged that it was more appropriate for the

son to come to him every fortnight on Friday afternoons since on

Saturdays they participated in organised walking-tours which started

early in the morning and which were in the interest of the child.

On 9 November 1994 the Bratislava City Court extended the

applicant's right to see his son during the Easter holidays by one day

and upheld the remainder of the first instance decision. It shared the

opinion of the first instance court that the existing right of access

was sufficient for maintaining good contacts between the applicant and

his son, and that it was proportionate to the age and health of the

child. The court underlined that the principal interest of the

applicant's son was to meet school obligations.

COMPLAINTS

The applicant alleges a violation of Article 8 of the Convention

in that the courts interfered with his private and family life and in

that his right of access is restricted more than necessary. Under

Article 5 of Protocol No. 7 the applicant complains that the

restriction of his right to access benefits his former wife rather than

his son.

The applicant complains under Article 3 of the Convention that

he was exposed to degrading treatment in that the courts refused to

extend his visiting rights and in that he was requested to submit a

psychiatric expert's opinion in the course of the proceedings.

The applicant further complains that he did not have an effective

remedy and that he has been discriminated against as regards the

contacts with his son. In his view his parental rights are restricted

to a greater extent than it is necessary in the interests of the son.

He alleges a violation of Articles 13, 14 and 17 of the Convention in

this respect.

Finally, the applicant also alleges a violation of several

Articles of the Convention on the Rights of the Child.

THE LAW

1. The applicant complains about the refusal to extend the right of

access to his son. He alleges a violation of Article 8 (Art. 8) of the

Convention and of Article 5 of Protocol No. 7 (P7-5) which provide, so

far as relevant, as follows:

Article 8 (Art. 8) of the Convention

"1. Everyone has the right to respect for his private and

family life ...

2. There shall be no interference by a public authority with

the exercise of this right except such as is in accordance with

the law and is necessary in a democratic society ... for the

protection of the rights and freedoms of others."

Protocol No. 7, Article 5 (P7-5)

"Spouses shall enjoy equality of rights and responsibilities of

a private law character between them, and in their relations with

their children, as to marriage, during marriage and in the event

of its dissolution. This Article shall not prevent States from

taking such measures as are necessary in the interests of the

children."

Assuming that the decisions complained of constituted an

interference with the applicant's family life, the Commission has to

examine whether this interference was compatible with the requirements

of Article 8 para. 2 (Art. 8-2) of the Convention.

The courts found no new circumstances justifying a further

extension of the applicant's access to his son as required by Section

28 of the Family Act. In their view, the existing visiting rights were

proportionate to the age and health of the child. The decisions at

issue were, therefore, in accordance with Slovak law and pursued a

legitimate aim, namely the son's well-being.

The courts at both instances carefully considered the applicant's

request for his parental rights to be extended. They found, for the

reasons set out in the judgments, that the existing visiting

arrangements were appropriate for both the son and his father and

sufficient for maintaining good contacts between them.

The Commission further recalls that the Bratislava 3 District

Court's judgment of 14 October 1993 allowed the applicant to meet his

son from 4 to 6 p.m. every second Wednesday and between Saturday 8 a.m.

and Sunday 5 p.m. every fortnight. He was also permitted to stay with

the son for part of the summer holidays and also for part of the

spring, Christmas and Easter holidays. In addition, in the course of

the proceedings at issue the Bratislava City Court extended the

applicant's right to see his son during the Easter holidays by one day.

In these circumstances, the Commission considers that insofar as

there was an interference with the applicant's right under Article 8

(Art. 8) of the Convention, that interference was not disproportionate.

For similar reasons the Commission considers that the decisions

at issue did not violate Article 5 of Protocol No. 7 (P7-5).

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 alleges a violation of Article 3

(Art. 3) of the Convention.

The Commission has found above that the decisions complained of

were compatible with the requirements of Article 8 (Art. 8) of the

Convention and of Article 5 of Protocol No. 7 (P7-5). These decisions

cannot be regarded as constituting inhuman or degrading treatment under

Article 3 (Art. 3) of the Convention (cf., mutatis mutandis, Hendriks

v. the Netherlands, Comm. Report 8.3.82, D.R. 29 p. 20, para. 130).

Nor can the request that the applicant should submit a certificate on

his mental status be considered to violate Article 3 (Art. 3) 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 also alleges a violation of Article 13

(Art. 13) of the Convention. However, the guarantees of Article 13

apply only to a grievance which can be regarded as "arguable" (cf. Eur.

Court H.R., Powell and Rayner 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 or of its Protocols.

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 applicant further alleges a violation of Articles 14 and 17

(Art. 14, 17) of the Convention.

The Commission has examined these complaints but finds that

insofar as they have been substantiated and are within its competence,

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 also manifestly

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

Convention.

5. Finally, the applicant alleges a violation of several Articles

of the Convention on the Rights of the Child. However, pursuant to

Article 25 (Art. 25) of the Convention the Commission may only receive

complaints of a violation of the rights set forth in the European

Convention on Human Rights.

It follows that this part of the application is incompatible

ratione materiae with the Convention within the meaning of Article 27

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

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(M.-T. SCHOEPFER) (H. DANELIUS)

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OLLE v. THE SLOVAK REPUBLIC

OLLE v. THE SLOVAK REPUBLIC

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