FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 50232/99 by Z.M. and K.P. against Slovakia

The European Court of Human Rights (Fourth Section), sitting on 21 September 2004 as a Chamber composed of:

Mr M. Pellonpää , President , Mrs V. Strážnická , Mr J. Casadevall , Mr R. Maruste , Mr S. Pavlovschi , Mr L. Garlicki , Mr J. Borrego Borrego, judges , and Mr s F. E lens-Passos , Deputy Section Registrar ,

Having regard to the above application lodged on 7 June 1999 ,

Having regard to the partial decision of 18 November 2003 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The first applicant, Mrs Z. M. , and the second applicant, Ms K.P., who is the first applicant ' s daughter were born in Slovakia 1960 and 1981 respectively. The y now live out of Slovakia and have both the Slovakian nationality and the nationality of the country of their permanent residence [1] . The respondent Government were represented by Mr P. Kresák, their Agent.

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

In 1985 the Bratislava 4 District Court (then Obvodný súd , at present Okresný súd ) pronounce d the first applicant ' s divorce from Mr P., the biological father of the second applicant. The second applicant was entrusted into the care and custody of the first applicant.

In 1993 the first applicant married Mr M. abroad and the applicants set up their permanent residence with him there.

On 8 January 1996 Mrs O., the mother of the first applicant, filed an action with the Dunajská Streda District Court claiming that she should be granted the right to educate the second applicant, her granddaughter. She maintained that the first applicant had failed to take proper care of the second applicant and submitted that Mr P. was in agreement with her proposal. The second applicant was then fourteen years old. At the time when the action was brought both applicants were in Slovakia on a temporary stay.

On 31 January 1996 Mr M. lodged a request for a revocable form of adoption of the second applicant. He maintained that all involved had Slovakia n nationality and that, therefore, the matter was to be determined by Slovakian court s . On 7 February 1996 Mr M. withdrew t h e r equest and, o n the same day , the District Court discontinue d the proceedings in its respect.

On 14 February 1996 the District Court appointed the Veľký Meder District Office ( Okresný úrad ) to look after the second applicant ' s interests in the proceedings.

On 19 February 1996 Mr M. re ‑ submitted an identical request for adoption of the second applicant. On the same day the first applicant made several submissions to the District Court. S he asserted that she and the second applicant were permanently resid ing outside of Slovakia and that, in addition to Slovakian nationality, they also had the nationality of the country of their permanent residence . As t hey were staying in Slovakia only temporarily , the Slovakian courts had no jurisdiction to entertain the question of education and care of the second applicant. T he first applicant further expressed her critical views as to the character of Mrs O. and Mr P. Finally, she lodged an appeal against the decision of 14 February 1996 arguing that officials of the District Office had previously failed to represent the second applicant ' s interests adequately and that they could not be expected to do so properly in the future.

At a hearing held before the District Court on 28 February 1996 Mr M. withdrew his second requests for adoption . The proceedings in its respect were discontinued and the h earing was adjourned.

The court heard the parties on 15 April 1996 . On that date Mr P. joined the proceedings and claimed that the action of Mrs O. be granted.

In April and May 1996 the first applicant sought to disqualify the judge dealing with the case as well as all other judges o f the District Court for being biased. T he hearing scheduled for 13 May 1996 had therefore to be adjourned and t he case ‑ file was submitted to the Trnava Regional Court ( Krajský súd ) for a de cision on the challenge .

On 27 May 1996 the first applicant filed a petition with the Bratislava Regional Court claiming that Mr P. be deprived of his parental rights over the second applicant. According to the applicants, no decision has ever been taken in respect of this request.

On 31 May 1996 the District Office issued an interim measure ordering that the second applicant be temporarily placed in the care of Mrs O. Despit e this measure the first applicant returned with the second applicant t o thei r home abroad.

On 3 July 1996 the Dunajská Streda District Prosecutor ( Okresný prokurátor ) joined the proceedings.

On 11 July 1996 the Trnava Regional Court sent the case ‑ file back to the District Court instruct ing i t to invite the first applicant to indicate wh ich judges of the District Court she was challenging and why . Subsequently the police informed the District Court that the applicants had left Slovakia in June 1996.

On 26 August 1996 Mrs O. requested that the District Court issue an interim measure granting her the custody of the second applicant pending the outcome of the proceedings.

The case ‑ file was again sent to the Trnava Regional Court in September 1996. The Regional Court decided that the District Court ' s judges were not biased and, on 18 October 1996 , returned the case ‑ file to the latter.

The District Court held a hearing on 28 November 1996 .

Following their arrival for another temporary stay in Slovakia , the District Court heard the first applicant and Mr M. on 5 December 1996 and the second applicant on 10 December 1996 .

On 18 December 1996 the case was adjourned and on 19 December 1996 the District Court dismissed Mrs O. ' s request of 26 August 1996 for an interim measure . The District Court did so observ ing that the applicants were liv ing in Slovakia at that time and that , when question ed on 10 December 1996 , the second applicant had expressed the wish to stay with the first applicant.

On 14 January 1997 the first applicant filed a petition with the Dunajská Streda District Court in which she again claimed that Mr P. be deprived of his parental rights over the second applicant.

On 16 January 1997 the District Court heard witnesses and on 30 January 1997 i t appointed an expert in psychology to draw up a report on the second applicant. The latter filed an appeal against this decision.

On 3 February 1997 the District Court appointed the Dunajská Streda District Office to look after the second applicant ' s interests in the proceedings.

On 13 February 1997 the expert informed the District Court that she was not in a position to produce the report b ecause of a heavy workload.

The hearing called for 18 February 1997 had to be adjourned as the first applicant and Mr P. failed to appear. The District Court ordered that the District Office look into the upbringing environment of the second applicant and the personal and material situation of the first applicant and Mr P.

Mr P. requested that an interim measure be issued to prevent the second applicant from travelling abroad without his consent. On 21 February 1997 the District Court dismissed the request.

At a hearing held on 6 March 1997 the District Court hea rd the parties and a representative of the Dunajská Streda District Office and t he first applicant was fined for disturbing order of the hearing . The case was then adjourned and Mr P. was invited to submit documentary evidence.

On 7 March 1997 the first applicant filed an appeal “against all decisions” delivered by the District Court judge dealing with the case.

On 8 March 1997 the first applicant submitted a power of attorney for a lawyer to represent her in the proceedings.

On 10 March 1997 Mr P. appealed agai nst the decision of 21 February 1997 . He also claimed that his right to meet the second applicant be determined by the court.

On 20 March 1997 the first applicant requested that further documentary evidence be taken.

On 27 March 1997 Mr M. for the third time lodged a request for adoption of the second applicant.

On 1 April 1997 the case was assigned to a different judge. On the same day the second applicant informed the District Court in writing that she did not wish to meet Mr P. and that she lived abroad where she was undergoing a treatment.

On 3 April 1997 the lawyer identified by the first applicant as her legal representative informed the District Court that he had not accepted any authority to represent her.

On 13 May 1997 the District Court submitted the case ‑ file to the Trnava Regional Court for a decision on the appeals f iled by the parties. On 23 June 1996 the Regional Court returned the case ‑ file to the District Court instructing it to ensure that the first applicant eliminates formal shortcomings in he r appeal of 7 March 1997 .

In July and August 1997 the District Court unsuccessfully attempted to reach the first applicant and Mr M. at their addresses in Slovakia .

In the meantime, on 28 July 1997 , the Trnava Regional Court had dismissed the second applicant ' s appeal aga inst the decision of 30 January 1997 concerning the appointment of an expert and quashed the above District Cour t ' s decision of 21 February 1997 .

On 8 September and 6 October 1997 the District Court in quired at the first applicant ' s father a fter the applicants ' whereabouts . On 15 September and 23 October 1997 he replied that the applicants were currently staying abroad and where on 6 May 1997 . According to the applicants, they had left Slovakia on 23 April 1997 .

From November 1997 to January 1998 the court attempted several times to establish the address of the applicants in the country of their residence. T he police notified the address to the District Court on 29 January 1998 .

On 24 February 1998 , while both applicants were abroad, the District Court issued an interim measure prohibit ing the m inter alia from leaving Slovakia . On 25 March 1998 Mr M. appealed against this decision. The first applicant, Mrs O. and Mr P. also appealed.

On 14 April 1998 the case ‑ file was submitted to the President of the Trnava Regional Court who returned the file on 7 May 1998 .

On 8 July 1998, after having taken several procedural steps, the District Court re ‑ submitted the case ‑ file to the Trnava Regional Court for a de termination of the appeals against the decision of 24 February 1998.

On 26 August 1998 the Trnava Regional Court overturned the District Court ' s decision to the extent that it had prohibited the applicants from travelling abroad and dismissed the request for an interim measure to this effect. The case ‑ file was returned to the District Court on 4 September 1998 . On 11 November 1998 and on 10 March 1999 the District Court judge arranged for service of the Regional Court ' s decision on the parties.

In the meantime, on 28 October 1998 , the first applicant had requested that further evidence be taken. On 10 December 1998 she informed the District Court that she had withdrawn the power of attorney of Mr M. to represent her in the proceedings.

The District Court judge dealing with the case was ill for a considerable period between August 1998 and January 1999 and also between March and May 1999.

On 21 April 1999 the Constitutional Court found that the constitutional right of Mrs O. to a hearing without undue delay had been violated in the above proceedings . In its decision the Constitutional Court admitted that , to a certain extent, the length of the proceedings was due to the behaviour of the parties. However, the case was not particularly complex and what was at stake in the proceedings called for particular diligence. The Constitutional Court further noted that the District Court had caused undue delays in the proceedings by failing to decide in a timely manner on the request for an interim measure restricting the applicants ' travel abroad thus br inging about the need of assistance of foreign authorities. Furthermore, by the time of the Constitutional Court ' s decided, the District Court judge had not yet prepared a request for assistance that was to be sent to these authorities.

The Constitutional Court ' s decision further stated that the District Court had not proceeded with the case effectively in that it had failed to take evidence, including an expert opinion, required for a decision on the case. Delays in the proceedings had also arisen as a result of the ordinary courts ' failure to decide on the requests for interim measure s within the statutory time-limit. Finally, the Constitutional Court noted that the District Court had failed to take any effective action in the case since 4 September 1998 .

In a letter of 26 May 1999 , in response t o the first applicant ' s complaint, the President of the District Court admitted that there had been undue delays in the proceedings. She instructed the judge dealing with the case to proceed with it expeditiously.

On 3 September 1999 the District Court judge prepared a request for assistance which was to be submitted through the Slovakian Ministry of Justice to the competent authorities in the country of the applicants ' residence. In particular, the District Court sought information from the first applicant and Mr M. as regards the care and education of the second applicant, Mr P. ' s parental and visiting rights in respect of the second applicant and the second applicant ' s adoption . The District Court also sought an inquiry into the general upbringing environment of the second applicant and the personal, social and material situation of the first applicant and Mr M.

In a letter of 26 November 1999 the Ministry of Justice invited the District Court to complete the request for assistance by su bmitting further information and copies of the relevant documents.

On 21 January 2000 the District Court took three separate decisions to discontinue the proceedings concerning , respectively, the education an d care of the second applicant, the deprivation of Mr P. of his parental rights o ver her and her adoption by Mr M. The decisions stated that the second applicant had reached the age of majority in 1999 and that , therefore , the said matters could no longer be determined on the merits.

COMPLAINTS

1. The applicants complained under Article 6 § 1 of the Convention:

(a) that they had had no access to a cour t in that the actions of 27 May 1996 and 14 January 1997 for deprivation of Mr P. ' s parental rights over the second applicant and the action of 27 March 1997 for the second applicant ' s adoption had never been determined on their merits ; and

(b) that the length of the proceedings concerning the care and education of the second applicant had exceeded a “reasonable time”.

2. The applicants also complained under Article 8 of the Convention that the way in which the domestic courts had dealt with the actions of 27 May 1996 and 14 January 1997 for deprivation of Mr P. ' s parental rights over the second applicant and the action of 27 March 1997 for the second applicant ' s adoption and, in particular, their failure to decide on the merits of these actions amounted to a violation of their right to respect for family life .

3. Relying on Article 13 of the Convention the applicants finally complained that they had had no effective remedy at their disposal as regards their complaint under Article 6 § 1 of the Convention of the length of the proceedings concerning the second applicant ' s care and education.

THE LAW

1. The applicants complained that the way in which the domestic courts had dealt with the actions for deprivation of Mr P. ' s parental rights and for the second applicant ' s adoption constituted an interference with their family life in violation of Article 8 of the Convention which, insofar as relevant, provides:

“1. Everyone has the right to respect for his ... 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 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.”

T he Government objected that the applicants had not exhausted domestic remedies as required by Article 35 § 1 of the Convention in that they had not sought redress before ordinary courts under Article 11 et seq. of the Civil Code by means of an action for protection of their personal integrity .

The applicants disagreed.

The Court recalls that it had already examined at length the effectiveness of the remedy under Article 11 et seq. of the Civil Code in the same matter (see E.O. and V.P. v. Slovakia , no s . 56193/00 and 57581/00, §§ 70 - 77, 27 April 2004). It had found that this remedy had not offered the applicants any reasonable prospects of success and that they had not been required to make use of it in order to comply with the requirements of Article 35 § 1 of the Convention.

Having found no reasons for reaching a different conclusion in the present case, the Court considers that the Government ' s objection cannot be sustained.

As to the merits of this complaint , the Government accepted that i t was not manifestly ill-founded.

T he applicants maintained that since 1993 they had had their permanent residence abroad where they had lived with Mr M., the new husband of the first applicant. According to them Mr P. had had a long history of dishonour ing his parental responsibilities and abus ing his parental rights in respect of the second applicant . The applicants ' aim had been to create a legal situation that would correspond to the actual state of affairs. The way in which the domestic courts had dealt with the action for deprivation of parental rights and the request of adoption rendered it impossible for this aim to be fulfilled. The mere passage of time brought them no solution and was of no relevance in the ir case.

The Court considers, in the light of the parties ' submissions, that the relevant part of the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The applicants also complained that the ir right of access to a court and to a hearing within a reasonable time had been violated . They relied on Article 6 § 1 of the Convention the relevant part of which provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal...”

The Government maintained that the issues of the second applicant ' s care and education, the parental rights over her and her adoption had been closely interrelated. Their determination had necessitated the taking and assessing of rather overlapping evidence and had in fact been carried out in the framework of a single set of proceedings. They consi dered that, in the circumstances, the questions of the access to court and the length of the proceedings were to be examined together with and in context of the complaint under Article 8 of the Convention of a violation of t he applicants ' right to respect for their family life. They r eferr ed to the Court ' s decisions in the cases of W v. the United Kingdom , judgment of 8 July 1987, Series A no. 121, p. 29, § 65 and Sylvester v. Austria , nos. 36812/97 and 40104/98, § 69, 24 April 2003 and conclude d that a separate examination of the complaints under Article 6 § 1 of the Convention was not called for.

The applicants ar gu ed that the above cases of W v. the United Kingdom , cited above , and Sylvester v. Austria , cited above , were of no relevance in the instant case and that the Court should also entertain their complaints under Article 6 § 1 of the Convention.

Insofar as the Government ' s objection of non ‑ exhaustion of domestic remedies in respect of the complaint under Article 8 of Convention may be understood as concerning the complaints under Article 6 § 1 of the Convention as well , the Court sees no legal way how the applicants could obtain any redress in respect of the alleged lack of access to a court and the length of proceedings under Article 11 et seq. of the Civil Code. This part of the application therefore cannot be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

As to the complaint of the lack of access to a court, the applicants further maintained that the District Office which had been charged with representing the second applicant ' s interests in the proceedings had failed to do so adequately. According to them this amounted to a failure on the part of the State to discharge its positive obligation to secure th at the second applicant have an effective access to a court in the proceedings at issue.

As regards the complaint of the length of the proceedings in respect of the c are and education of the second applicant, the applicants argued first of all that Slovakian courts had lacked jurisdiction to entertain this matter at all as they both lived abroad where they had acquired a second nationality and they had been staying in Slovakia only temporarily.

They further objected that the action of Mrs O. joined by the action of Mr P. had had no bas is in truthful facts . It had been pursued in a mere attempt to delay the decision concerning the deprivation of Mr P. ' s parental rights and to render this decision impossible to achieve by passing of time.

According to the applicants, a substantial delay in the proceedings had been caused by the fact that, when deciding on the constitutional complaint of Mrs O., the Constitutional Court had taken and held the District Court ' s case ‑ file for about one year.

The Court considers, in the light of the parties ' submissions, that the relevant part of the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

3. The applicants finally complained under Article 13 of the Convention that they had had no effective remedy as regards their complaint under Article 6 § 1 of the Convention of the length of the proceedings concerning the second applicant ' s care and education. Article 13 of the Convention provides that:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Referring to their position as regards the complaints under Article 6 § 1 and Article 8 of the Convention , the Government considered the complaint under Article 13 of the Convention manifestly ill-founded.

The applicants disagreed and reiterated their complaint.

The Court considers, in the light of the parties ' submissions, that the relevant part of the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the remainder of the application admissible, without prejudging the merits of the case.

Françoise Elens-Passos Matti Pellonp ää Deputy Registrar President

[1] T he President of the Chamber has accede d to the applicants’ requests that their names not be disclosed (Rule 47 § 3 of the Rules of Court) and that the documents deposited with the Registry in connection with the application not be accessible to the public (Rule 33 of the Rules of Court).