FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 51204/99 by Jan FABIŠÍK against Slovakia

The European Court of Human Rights (Fourth Section), sitting on 9 March 2004 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mrs V. Strážnická , Mr J. Casadevall , Mr R. Maruste , Mr L. Garlicki , Mrs E. Fura-Sandström, judges , and Mr M. O'Boyle , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 14 October 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr J án Fabišík, is a Slovakian national, who was born in 1951 and lives in Košice. The facts of the case, as submitted by the applicant, may be summarised as follows.

At the beginning of August 1994 the applicant's wife left the applicant together with their two children. In September 1994 she sought a divorce from the applicant. Later the girl born to the couple started living with the applicant. According to the applicant, her grand-father had attempted to kill the girl in that he had deliberately damaged her bike and her mother had hit the girl's head against a wall.

The following relevant events occurred and decisions were taken in the case.

1. Proceedings concerning the maintenance of the applicant's wife

On 14 September 1994 the applicant's wife claimed maintenance from her husband.

On 27 May 1997 the Ko Å¡ice II District Court ordered the applicant to pay a monthly maintenance of 1,000 Slovakian korunas (SKK) to his wife with effect from 14 September 1994.

On 23 February 1998 the Košice Regional Court upheld the first instance judgment to the extent that it concerned the period from 14 September 1994 to 31 May 1997. It further noted that the applicant's wife had withdrawn her claim in respect of the subsequent period and discontinued the relevant part of the proceedings. The appellate court's decision was served on the applicant on 31 March 1998.

On 25 August 1998 the Supreme Court rejected the applicant's appeal on points of law against the Regional Court's judgment of 23 February 1998 as such a remedy was not available in maintenance proceedings.

On 26 March 1999 the applicant's former wife claimed the enforcement of the sum owed by the applicant.

On 20 April 1999 the Ko Å¡ice II District Court granted the request. The applicant appealed and claimed that the judicial decisions in question were arbitrary.

On 28 April 2000 the Košice Regional Court upheld the decision of 20 April 1999.

2. Divorce proceedings

The applicant's wife sought a divorce from her husband in September 1994. The applicant consented to the divorce and claimed that the two children born from the wedlock should be placed in his custody.

On 17 November 1998 the Ko Å¡ice II District Court granted the applicant and his wife a divorce after having heard the parties and taken documentary evidence including an expert opinion. The District Court further decided that custody of the son born to the couple in 1986 should be granted to the mother. As to the daughter born to the couple in 1984, the court granted custody to the applicant.

The District Court's judgment was served on the applicant's lawyer on 15 December 1998. The applicant filed an appeal against it on 20 January 1999.

On 21 April 1999 the Košice Regional Court rejected the appeal without examining the merits of the case as it had been lodged after the expiry of the fifteen days' time-limit laid down in the Code of Civil Procedure. The Regional Court further upheld the District Court's decision of 5 March 1999 ordering the applicant to pay the fees for the appellate proceedings.

On 14 January 2000 the Vice-President of the Slovak Bar Association dismissed the applicant's complaint about the lawyer representing him in the proceedings. The letter referred to documents submitted by the lawyer and stated that, in a registered letter of 16 December 1998, the lawyer had asked the applicant to come to her office in case he wanted to file an appeal against the first instance judgment, failing which she would consider that the applicant did not wish to do so.

3. Proceedings concerning the parental rights and obligations

In 1994 proceedings were brought with a view to determining the parental obligations of the applicant and his wife in respect of the two children born to the couple.

On 10 June 1996 the Ko Å¡ice II District Court decided that the girl born in 1984 should be in the custody of the applicant and the boy born in 1986 in the custody of his mother. It ordered the applicant to pay maintenance in respect of his son with effect from 1 August 1994 and decided on the parents' right of access to the child in the other spouse's custody. The court heard the parents, a guardian appointed to the children and also an expert who had been asked to submit an opinion.

The applicant appealed and claimed that both children should be placed in his custody. He maintained that the first instance court had not duly considered the circumstances in which his wife had left their common household or the fact that the children should continue living together.

On 8 July 1996 the applicant requested that the case should be dealt with by an appellate court outside the Eastern Slovakian Region. He explained that the sister-in-law of his wife was secretary to the President of the Ko Å¡ice -okolie District Court. On 17 December 1996 the Supreme Court dismissed the request. It found no indication that the Regional Court judges by whom the case fell to be examined lacked impartiality. On 28 January 1997 the Ko Å¡ice Regional Court dismissed the applicant's request, based on the same arguments, for exclusion of the District Court judge dealing with the case.

On 23 February 1998 the Ko Å¡ice Regional Court upheld the first instance judgment to the extent that it concerned the custody of the children and the parents' right of access to the child placed in the other parent's custody. It further quashed the District Court's judgment to the extent that it concerned the maintenance due from the parents and the costs of the proceedings. The Regional Court instructed the District Court to take further evidence, in particular as regards the income of the applicant's wife. The judgment was served on the applicant on 6 April 1998.

On 28 October 1998 the Ko Å¡ice II District Court delivered a new judgment in which it determined the parents' obligation to pay maintenance in respect of the child in the other parent's custody. It allowed the parents to pay the outstanding maintenance for the past period in monthly instalments. The court had regard to the income of both parents and in its decision it gave detailed reasons for its conclusions.

The applicant appealed alleging that the first instance court had failed to correctly establish the relevant facts.

On 8 December 1998 the applicant challenged the Ko Å¡ice Regional Court judges. He contended that the appellate court judges dealing with the case were biased as they had earlier upheld arbitrary decisions delivered by the first instance court. The applicant also alleged that the secretary to the President of the Ko Å¡ice -okolie District Court was a relative of his former wife and that the first instance judge dealing with the case had acted arbitrarily and to the advantage of his wife.

On 4 October 1999 the Supreme Court rejected the applicant's objection as being unsubstantiated.

On 20 December 1999 the Ko Å¡ice Regional Court modified the District Court's judgment of 28 October 1998 in that it ordered the applicant to pay maintenance in respect of his son amounting to (i) SKK 500 for the period from 1 August 1994 to 31 August 1997 and (ii) SKK 800 for the period subsequent to 1 September 1997. It also ordered the applicant's wife to pay maintenance in respect of her daughter amounting to (i) SKK 300 for the period from 14 September 1994 to 30 June 1997 and (ii) SKK 800 as from 1 July 1997. The Regional Court further quashed the first instance judgment to the extent that it concerned the payment of the sums which the parents owed in respect of the maintenance of their children for the past period. It instructed the District Court to take further evidence in that respect.

On 13 March 2000 the Ko Å¡ice II District Court allowed the applicant and his former wife to pay the outstanding maintenance in respect of their children by monthly instalments of SKK 1,000 and 800 respectively.

The applicant appealed and claimed that the District Court should have taken into consideration that he had bought several gifts to his son and that he had paid insurance premiums with regard to him. He also alleged that the sums which he had to pay had been determined arbitrarily and that the first instance judge had not allowed his daughter to attend the hearing.

On 11 May 2000 the President of the K oš ice II District Court informed the applicant that, when refusing to allow the attendance of his daughter, the judge had acted in accordance with the relevant provisions of the Code of Civil Procedure as the applicant's daughter was under age. In addition, it was not excluded that the applicant's daughter would have to be heard with a view to establishing the relevant facts.

On 28 February 2001 the Ko Å¡ice Regional Court upheld the District Court 's judgment of 13 March 2000. It expressed the view that the payment of an insurance fee and the gifts which the applicant had offered to the son could not be considered as maintenance within the meaning of the relevant law. It held that the first instance court had correctly established the relevant facts and that it had decided in accordance with the law.

4. Criminal complaints filed by the applicant

On 20 January 2003 an investigator brought criminal proceedings upon the applicant's complaint that his former wife had mistreated his son in that she had failed to provide him with appropriate food and had not allowed him to wash himself regularly. The proceedings are pending.

The applicant also filed several complaints against the judges involved in his cases. They were dismissed by public prosecutors at several levels on the ground that the judges had acted in accordance with the law and had committed no offence.

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention that (i) the above proceedings were unfair in that the judges involved failed to establish the relevant facts correctly and decided arbitrarily; (ii) the judges dealing with his cases lacked impartiality and (iii) the length of the proceedings was excessive.

2. Under Article 5 of Protocol No. 7 the applicant complains that by the above decisions the Slovakian courts disregarded the interests of the children and favoured his former wife when determining the parental rights and obligations.

3. The applicant alleges a violation of Article 2 of the Convention in that (i) the father of his former wife had deliberately damaged the bike of the applicant's daughter with a view to killing her; (ii) his former wife had hit the head of his daughter against a wall and mistreated their son and (iii) following the enforcement of the judgment concerning the maintenance of his former wife he and his daughter had been put into a difficult financial situation.

THE LAW

1. The applicant complains that his right to a fair hearing within a reasonable time was violated in the above proceedings and that the judges dealing with the case were biased. He relies 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 an ... impartial tribunal...”

a) The Court notes that the final decision in the proceedings concerning the maintenance of the applicant's wife was taken by the Košice Regional Court on 23 February 1998 and that it was served on the applicant on 31 March 1998. As the application was introduced on 14 October 1998, the applicant failed to respect the six months' time-limit in respect of his complaints about these proceedings. The fact that the applicant filed an appeal on points of law against the Regional Court's judgment cannot affect the position as such a remedy was not available in the case.

It follows that this part of the application is introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

b) As regards the applicant's complaint about unfairness of the divorce proceedings and the alleged lack of impartiality of the judges dealing with the case, the Court notes that the Ko šice Regional Court rejected the applicant 's appeal against the first instance judgment without having addressed the merits of the case as it had been lodged out of time. Accordingly, in this respect the applicant failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention. The Court finds irrelevant whether or not the applicant's lawyer was responsible for the above omission (see Tuziński v. Poland (dec.), no. 40140/98, 30 March 1999).

It follows that this complaint must be rejected under Article 35 §§ 1 et 4 of the Convention for non-exhaustion of domestic remedies.

c) The Court further notes that the part of the proceedings on parental rights and obligations which concerned the custody of the children and the parents' right of access to the child placed in the other parent's custody ended by the Košice Regional Court's judgment of 23 February 1998 which was served on 6 April 1998. As the application was introduced on 14 October 1998, the applicant's complaints about unfairness of this part of the proceedings concerning the parental rights and obligations were lodged after the expiry of the six months' time-limit laid down in Article 35 § 1 of the Convention.

It follows that this part of the application is introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

d) As regards the complaint that the proceedings concerning the parental rights and obligations and leading to the Ko šice Regional Court's judgment of 28 February 2001 were unfair in that the courts failed to establish the relevant facts correctly and decided arbitrarily, the Court recalls that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. While Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see, mutatis mutandis , Schenk v. Switzerland , judgment of 12 July 1988, Series A no. 140, p. 29, § 46 and Garcia Ruiz v. Spain , judgment of 21 January 1999, Reports 1999-I, pp. 98-99, § 28).

The relevant part of the proceedings concerned the maintenance which each parent was obliged to pay in respect of the child in the other parent's custody. The Court notes that the relevant decisions were based on the income of both parents and that the courts gave detailed reasons for their conclusions.

In view of the information before it, and given that it has only limited power to review alleged errors of fact or law committed by national courts, the Court considers that in the proceedings under consideration there is no appearance of unfairness or arbitrariness which would infringe the guarantees of a fair hearing within the meaning of Article 6 § 1 of the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

e) The applicant also complains that the judges deciding on the parental rights and obligations lacked impartiality. As in the proceedings before the domestic courts he maintains that the first instance judge disregarded his arguments, favouring his former wife and did not allow his daughter to attend the hearing. In his view, the appellate court judges were also biased as they had earlier upheld arbitrary decisions delivered by the first instance court. In addition, the applicant considered the judges biased also on the ground that the sister-in-law of his former wife worked as secretary to the President of the Ko Å¡ice -okolie District Court.

Having regard to the documents before it, the Court concurs with the Ko Å¡ ice Regional Court's and the Supreme Court's above findings according to which the reasons invoked by the applicant were not sufficient for concluding that the judges dealing with the case lacked impartiality.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

f) As regards the applicant's complaints about the length of the divorce proceedings and of the proceedings concerning the parental rights and obligations, the Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicant complains that by the above decisions the Slovakian courts disregarded the interests of the children and favoured his former wife when determining the parental rights and obligations. He relies on Article 5 of Protocol No. 7 which provides as follows:

“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.”

a) As stated above, the applicant introduced his complaints about the part of the proceedings concerning the parental rights and obligations which ended by the Košice Regional Court's judgment of 23 February 1998 after the expiry of the six months' time-limit laid down in Article 35 § 1 of the Convention.

It follows that this part of the application is also introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

b) As to the remaining part of the proceedings under consideration, it concerned the sums which the parents were obliged to pay in respect of the child in the other parent's custody. The Court has found above that the domestic courts' decisions on this issue were not arbitrary and it finds no indication that the applicant's rights under Article 5 of Protocol No. 7 were thereby violated.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. Finally, the applicant alleged a violation of Article 2 of the Convention which provides as follows:

“1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

The Court has examined the applicants' complaints under Article 2 of the Convention but finds, to the extent that such complaints were substantiated and fall within its competence, that they do not disclose any appearance of a violation of the applicant's rights guaranteed by the Convention or its Protocols.

It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant's complaints concerning the length of the divorce proceedings and of the proceedings concerning the parental rights and obligations;

Declares the remainder of the application inadmissible.

Michael O'Boyle Nicolas Bratza Registrar President