FOURTH SECTION

DECISION

Application no. 4909/05 by Andrej PRIBULA against Slovakia

The European Court of Human Rights (Fourth Section), sitting on 4 December 2007 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr G. Bonello , Mr K. Traja , Mr L. Garlicki , Ms L. Mijović , Mr J. Šikuta , Mrs P. Hirvelä, judges , and Mrs F. Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 16 January 2005,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

Having regard to the formal declarations accepting a f riendly settlement of the case,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Andrej Pribula, is a Slovak national who was born in 1972 and lives in Giraltovce. He was represe nted before the Court by Mrs I. Rajtakov á , a lawyer practising in Ko š ice. The Slovak Government (“the Government”) were represented by their Agent, Ms M. Piro šíková .

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

1. Factual background

In 1998 the applicant married Ms P. Their marriage produced one child: a son who was born in 1999.

On 15 March 2002 Ms P. petitioned for divorce before the Košice II District Court ( Okresný súd ) and asked that the court decide on the question of custody of the son after the divorce had been pronounced. The case was transmitted to the Svidník District Court and then back to the Košice II District Court where it appears to be still pending.

2. Proceedings on custody prior to divorce

On 9 April 2002 Ms P. brought proceedings against the applicant in the Košice II District Court, claiming custody of their son during the period prior to the divorce. The question of the son ’ s official legal representation as a minor was subsequently dealt with at two levels of jurisdiction.

The parties applied on numerous occasions for interim measures dealing with the issues of custody, maintenance and the right to see the son prior to the final judgment. They were examined at two levels of jurisdiction and dismissed except for as stated below.

On 6 February 2004 the District Court heard the case for the first time.

On 27 February 2004 an interim measure was indicated ordering the applicant to hand over the child to Ms P. within 3 days.

The applicant unsuccessfully challenged the interim measure of 27 February 2004 before the Constitutional Court . Ms P. successfully sought its enforcement.

On 29 September 2004 the Ko šice Regional Court ( Krajsk ý súd ) indicated an interim measure authorising the applicant to see his son until the final judgment every even Saturday between 9 a.m. and 6 p.m.

On 14 January and 11 March 2005 the District Court held hearings. Following the latter hearing, on the same day, it gave a judgment. The custody of the child was given to Ms P. and the applicant was ordered to contribute to the costs of the child ’ s maintenance. The arrears of maintenance to be paid by the applicant were determined and the applicant was authorised to pay them in monthly instalments. Ms P. was ordered to pay for the child ’ s maintenance in the period from 14 December 2002 to 7 May 2003 and was authorised to do so in monthly instalments. Finally, the District Court made arrangements in respect of the applicant ’ s right to see his son. The applicant appealed.

On 27 December 2005 the Regional Court held a hearing of the appeal following which, on the same day, it quashed the judgment of 11 March 2005 and remitted the case to the District Court for the taking of further evidence and re-examination.

On 8 November 2006 the District Court held a hearing following which, on the same day, it gave Ms P. custody of the child, ordered the applicant to contribute to the child ’ s maintenance, determined the arrears of maintenance to be paid by the applicant, authorised him to pay such arrears in monthly instalments and made arrangements in respect of the applicant ’ s right to see his son. On 13 November 2006 the District Court corrected clerical errors in the operative part of the judgment. The applicant appealed.

On 29 December 2006 the Regional Court returned the case file to the District Court on the ground that the latter had failed to determine the full scope of the case, in particular the question of maintenance for the period from 20 December 2002 to 4 March 2003 when the child had been with the applicant.

On 16 February 2007 the District Court gave a further judgment dismissing the applicant ’ s claim against Ms P. for a contribution to the child ’ s maintenance for the period when the child was with him. The applicant appealed. The proceedings are still pending.

3. Constitutional complaint of length of custody proceedings

On 28 August 2006 the applicant lodged a complaint under Article 127 of the Constitution, arguing that the length of the custody proceedings had been excessive and claiming 70,000 Slovakian korunas [1] by way of compensation in respect of non-pecuniary damage.

On 8 November 2006 the Constitutional Court found that the District Court had violated the applicant ’ s right to a hearing without “unjustified delay” (Article 48 § 2 of the Constiution and within a “reasonable time” (Article 6 § 1 of the Convention ). At the same time, it ordered the District Court to proceed with the case expeditiously and to reimburse the applicant ’ s legal costs. It dismissed the remainder of his claim for just satisfaction.

COMPLAINTS

1. The applicant complained that the Regional Court had ignored the evidence and arguments that he had submitted and that it had applied the interim measure of 27 February 2004 arbitrarily. He contested the interim measure and the proceedings leading to it and claimed violations of his rights (i) to a fair hearing under Article 6 § 1 of the Convention; (ii) to respect for his family life under Article 8 of the Convention; and (iii) to equality of spouses in their relations with their children under Article 5 of Protocol No. 7.

2. The applicant also complained under Article 6 § 1 of the Convention that in the custody proceedings prior to the divorce he had not received a “fair hearing” within a “reasonable time”.

THE LAW

On 2 October 2007 the Court received the following declaration signed by the applicant:

“ I, Andrej Pribula, the applicant, note that the Government of the Slovak Republic are prepared to pay me ex gratia the sum of 2,655 (two thousand six hundred and fifty five euros) with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.

This sum, which is to cover any non-pecuniary damage as well as costs and expenses, will be converted into Slovak korunas at the rate applicable on the date of payment, and free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

I accept the proposal and waive any further claims against Slovakia in respect of the facts giving rise to this application. I declare that this constitutes a final resolution of the case. ”

On 5 November 2007 the Court received the following declaration from the Government:

“ I, Marica Pirošíková, the Agent of the Government of the Slovak Republic before the European Court of Human Rights, declare that the Government of the Slovak Republic offer to pay ex gratia 2,655 (two thousand six hundred and fifty five euros) to Mr Andrej Pribula with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.

This sum, which is to cover any non-pecuniary damage as well as costs and expenses, will be converted into Slovak korunas at the rate applicable on the date of payment, and free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case. ”

The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). In view of the above, it is appropriate to discontinue the application of Article 29 § 3 and to strike the case out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Fatoş Aracı Nicolas B ratza Deputy Registrar President

[1] SKK 70,000 is equivalent to approximately 2,000 euros.