FOURTH SECTION

DECISION

[ This version was modified, on 9 December 2003, following the President's decision to authorise anonymity of the applicants and of the other persons involved in the case.]

AS TO THE ADMISSIBILITY OF

Application no. 56193/00 Application no. 57581/00 by E.O. by V.P. against Slovakia against Slovakia

The European Court of Human Rights (Fourth Section), sitting on 16 September 2003 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mrs V. Strážnická , Mr R. Maruste , Mr S. Pavlovschi , Mr L. Garlicki,

Mr J. Borrego Borrego , judges , and Mr M. O'Boyle , Section Registrar ,

Having regard to the above applications lodged on 3 December 1999 and on 11 May 2000,

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, Ms E.O., is a Slovakian national who was born in 1941 and lives in Bratislava. The second applicant, Mr V.P., is a Czech national who was born in 1960 and resides in Šaľa (Slovak Republic). They are represented before the Court by Mr I. Ga žík , a lawyer practising in Prievidza. The respondent Government were represented by Mr P. Vršanský, their Agent, succeeded by Mr P. Kresák as from 1 April 2003.

A. The circumstances of the case

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

On 8 January 1996 the first applicant filed an action claiming that she should be granted the right to educate her granddaughter of whom the second applicant was the father. The girl, born to the plaintiff's daughter, was then fourteen years old. The first applicant relied on Section 45 of the Family Act and explained that her daughter had failed to take proper care of the girl. She further submitted that the second applicant was in agreement with her proposal. She also claimed that the parents be ordered to contribute to the child's maintenance.

In January and February 1996 the Dunajská Streda District Court took several procedural steps. It had also before it a request for adoption of the child lodged by the husband of the child's mother. The request was later withdrawn and the proceedings discontinued.

A hearing scheduled for 28 February 1996 had to be adjourned as the child's mother was ill.

The court heard the parties on 15 April 1996. On that date the second applicant joined the proceedings and claimed that the first applicant's action be granted.

In April and May 1996 the child's mother challenged the judge dealing with the case. For this reason the hearing scheduled for 13 May 1996 was adjourned. The case file was submitted to the Trnava Regional Court for a decision on the request for exclusion of judges.

Subsequently the girl was placed in a psychiatric hospital by her mother.

On 31 May 1996 the District Office in Veľký Meder issued an interim measure ordering that the child was to be temporarily placed in the first applicant's care. Reference was made to conclusions of a psychiatrist who treated the child.

The child's mother refused to comply with the order. Upon the child's release from the psychiatric hospital the mother and the girl left abroad where the mother lived with her second husband.

On 4 July 1996 the Dunajsk á Streda Di strict Prosecutor joined the proceedings.

On 11 July 1996 the Regional Court sent the file back to the District Court and instructed it to invite the child's mother to specify her objection to the District Court judges. Subsequently the police informed the District Court that the child and her mother had left Slovakia in June 1996.

The case file was again sent to the Regional Court in September 1996. On 18 October 1996 the Regional Court returned the file to the District Court after having decided that the latter's judges were not biased.

A hearing before the District Court was held on 28 November 1996.

Following their arrival for a temporary stay in Slovakia, the District Court heard the mother and her husband on 5 December 1996. It also heard the girl on 10 December 1996.

On 18 December 1996 the case was adjourned.

On 19 December 1996 the District Court dismissed the first applicant's request for an interim measure to be issued.

On 16 January 1997 the court heard witnesses.

On 30 January 1997 the court appointed an expert with a view to obtaining an opinion on the child.

On 13 February 1997 the expert informed the District Court that she was not in a position to submit an opinion because of a heavy workload.

The second applicant requested that his daughter be prevented from travelling abroad without his consent. On 21 February 1997 the District Court dismissed the request.

Hearings were scheduled for 18 February 1997 and 6 March 1997. On the latter date the District Court heard the parties. The case was adjourned as the court considered it necessary to obtain an expert opinion.

On 7 March 1997 the child's mother filed an appeal “against all decisions” delivered by the judge dealing with the case.

On 10 March 1997 the second applicant appealed against the decision on his request for an interim measure to be issued. He also claimed that his rights to meet his daughter be determined by the court.

On 20 March 1997 the mother of the child requested that further documentary evidence be taken.

On 1 April 1997 the case was assigned to a different judge.

On the same day the second applicant's daughter informed the court in writing that she did not wish to meet her father and that she lived abroad where she was undergoing a treatment.

On 13 May 1997 the District Court submitted the case file to the Trnava Regional Court for a decision on the appeals filed by the parties. On 23 June 1996 the Regional Court returned the file to the District Court and asked the latter to ensure that formal shortcomings in the mother's appeal of 7 March 1997 be eliminated. It further dismissed the child's appeal against the decision on appointment of an expert and quashed the above District Court's decision of 21 February 1996.

On 4 July and on 5 August 1997 the judge asked the mother of the child to eliminate shortcomings in her submissions.

On 15 September 1997 the grandfather of the child informed the court that his daughter and granddaughter were staying abroad.

On 24 October 1997 the second applicant informed the court that his former wife had left Slovakia, together with their daughter, on 6 May 1997.

In November 1997 and in January 1998 the court attempted to establish the address of the child and her mother. The information was submitted to it by the police on 29 January 1998.

On 24 February 1998 the District Court issued an interim measure in which, inter alia , it prohibited the mother and the child from travelling abroad. At that time both the mother and the child were abroad. On 25 March 1998 the second husband of the child's mother appealed against this decision. The applicants and the child's mother also appealed.

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

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

On 26 August 1998 the Trnava Regional Court quashed the District Court's decision to the extent that it prohibited the mother and the child from travelling abroad. The case file was returned to the District Court on 4 September 1998. On 11 November 1998 and on 10 March 1999 the judge arranged for the Regional Court's decision to be served on the parties.

On 28 October 1998 the child's mother requested that further evidence be taken. On 10 December 1998 she informed the District Court that she had withdrawn the authority of her husband 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 first applicant's constitutional right to a hearing without undue delays had been violated. In its decision the Constitutional Court admitted that the length of the proceedings was due, to a certain extent, 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 in that, by failing to decide in time on the above request for an interim measure to be issued, it had brought about the need to ask foreign authorities for assistance. Furthermore, by the time the Constitutional Court decided on the case, the District Court judge had not yet arranged for such a request to be sent to the authorities concerned.

The Constitutional Court's decision 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 an interim measure to be issued 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.

On 3 September 1999 the District Court judge prepared a request for assistance which was to be submitted to foreign authorities through the Ministry of Justice.

By two decisions delivered on 21 January 2000 the Dunajsk á Streda District Court discontinued both the proceedings on the first applicant's claim of 8 January 1996 and on the second applicant's claim of 10 March 1997. The decisions stated that the second applicant's daughter had reached her majority in 1999.

B. Relevant domestic law and practice

1. Constitutional provisions

Article 16(1) guarantees to everyone the respect for his or her privacy.

Pursuant to Article 19(1), everybody has the right to protection of human dignity, personal honour as well as of good reputation and name. Paragraph 2 of Article 19 provides that everybody has the right to protection against unjustified interference with his or her private and family life. Paragraph 3 of Article 19 guarantees the right to protection against unjustified collection, publication or other misuse of data about his or her person.

Article 48(2) provides, inter alia , that every person has the right to have his or her case tried without unjustified delay.

Pursuant to Article 130(3), as in force until 30 June 2001, the Constitutional Court could commence proceedings upon the petition (“ podnet ”) presented by any individual or a corporation claiming that their rights have been violated. According to its case-law under the former Article 130(3) of the Constitution, the Constitutional Court lacked jurisdiction to draw legal consequences from a violation of a petitioner's rights under Article 48(2) of the Constitution. It could neither grant damages to the person concerned nor impose a sanction on the public authority liable for the violation found. In the Constitutional Court's view, it was therefore for the authority concerned to provide redress to the person whose rights were violated.

As from 1 January 2002, the Constitution has been amended in that, inter alia , individuals and legal persons can complain about a violation of their fundamental rights and freedoms pursuant to Article 127. Under this provision the Constitutional Court has the power, in case that it found a violation of Article 48 (2) of the Constitution, to order the authority concerned to proceed with the case without delay. It may also grant adequate financial satisfaction to the person whose constitutional right was violated as a result of excessive length of proceedings (for further details see, e.g., Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01, 60226/00, 22 October 2002).

2. The Civil Code

According to Article 11, every natural person has the right to protection of his or her personality, in particular of his or her life and health, civil and human dignity, privacy, name and personal characteristics.

Pursuant to Article 13(1), every natural person has the right to request that unjustified infringement of his or her personal rights should be stopped and the consequences of such infringement eliminated, and to obtain appropriate satisfaction.

Article 13(2) provides that in cases when the satisfaction obtained under Article 13(1) is insufficient, in particular because a person's dignity and position in society has been considerably diminished, the injured person is entitled to compensation for non-pecuniary damage. According to paragraph 3 of Article 13, when determining the amount of such compensation the courts have to take into account the seriousness of the prejudice suffered by the person concerned and also the circumstances under which the violation of that person's rights occurred.

3. The Family Act

Pursuant to Section 45(1), a court may empower a person other than parents to educate a child when the interests of the child so require and provided that such a person offers the guarantee of educating the child in an appropriate manner. In doing so the court shall determine the scope of rights and obligations such a person shall have in respect of the child.

4. The Code of Civil Procedure

Under Section 176, courts shall ensure that parents or guardians take proper care of persons under age. They shall examine information and respond to petitions submitted by citizens or legal persons which concern the education of a minor and take appropriate measures in that respect.

5. The relevant domestic practice and legal opinions

In its decision No. I. ÚS 2/00 of 5 January 2000 the Constitutional Court declared inadmissible a petition in which the plaintiff alleged a violation of Article 19 of the Constitution in that public authorities systematically requested that he should submit his high education diploma to them. The decision stated that the plaintiff should have sought the protection of the alleged violation of his rights under Article 19(1) of the Constitution by means of an action for protection of his personal rights pursuant to Article 11 et seq. of the Civil Code.

In decision No. II. ÚS 23/00 of 23 March 2000 the Constitutional Court rejected, for lack of jurisdiction, a petition in which the plaintiff had complained about a violation of his rights under Article 19(2) and (3) of the Constitution on the ground that the Minister of Justice had asked him to submit, as president of a District Court, information about his material situation. The Constitutional Court held that the issue fell within the jurisdiction of the ordinary courts which had power to deal with it under Articles 11 et seq. of the Code of Civil Procedure.

In decision No. II. ÚS 94/95 of 13 December 1995 the Constitutional Court held that the purpose of the right to privacy under Article 16 of the Constitution was not only to protect rights guaranteed by Articles 11 et seq. of the Civil Code, but also to prevent unjustified interference of public authorities with individuals' private life. The purpose of the constitutional right to privacy corresponded  to, inter alia , Article 8 of the Convention.

In this context a former constitutional judge expressed the view that the constitutional right to privacy was not identical with the right to privacy guaranteed by the Civil Code. The latter was a part of the former. However, other legal provisions, such as those included in the Family Act, were also relevant for the compliance with the constitutional right of privacy (see J. Drgonec - Základné práva a slobody podľa Ústavy Slovenskej republiky , 1997).

In proceedings No. 4C 109/97 held before the Šaľa District Court the plaintiff claimed compensation for non-pecuniary damage from the Ministry of Justice on the ground that he had been unlawfully convicted of an offence and that he had served a part of the sentence before the conviction was quashed. The District Court concluded from the plaintiff's submissions that he claimed protection of his personal rights under Article 11 et seq. of the Civil Code. On 29 October 1998 the court dismissed the action considering that the plaintiff should have first sought compensation under the State Liability Act of 1969. Upon the plaintiff's appeal the Nitra Regional Court quashed the District Court's judgment on 23 March 2000. The Regional Court held that the first instance court had failed to correctly determine the subject-matter of the case and, in particular, under which law the plaintiff's claim was to be considered. In its decision the Regional Court stated, inter alia , that an interference with one's personal rights could objectively arise also in the context of proceedings before a public authority.

COMPLAINTS

1. The applicants complained under Article 6 § 1 of the Convention that the length of the proceedings had been excessive and that they had no effective access to a court as the determination of the merits of their claims had been rendered impossible by the District Court's conduct.

2. Under Article 8 of the Convention the applicants complained that the way in which the District Court had dealt with their action resulted in a violation of their right to respect for their private and family life.

3. The applicants alleged a violation of Article 13 of the Convention in that they had no effective remedy at their disposal as regards their complaint about undue delays in the proceedings.

4. Finally, the applicants alleged that the facts of the case amounted also to a violation of Article 18 of the Convention.

THE LAW

1. The Court finds that, because of the similarity of the factual and legal issues involved, it is appropriate to join the applications.

2. The applicants complained that the way in which the District Court had dealt with their action resulted in a violation of their right to respect for their private and family life. They relied on Article 8 of the Convention the relevant part of which provides:

“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 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 contended that the applicants had not exhausted domestic remedies as required by Article 35 § 1 of the Convention as they had not sought redress by means of an action under Article 11 et seq. of the Civil Code. In their view, such a remedy was effective within the meaning of the Court's case-law as it gave the applicants the opportunity to have the unjustified interference with their personal rights stopped and also to obtain financial compensation for any non-pecuniary damage which they may have suffered. They pointed out that the Constitutional Court also required the exhaustion of that remedy prior to entertaining complaints under Article 19 of the Constitution which guarantees, inter alia , the right to respect for one's private and family life. They referred, in particular, to Constitutional Court's decisions no. I. ÚS 2/00 and II. ÚS 23/00.

As to the merits, the Government admitted that the complaint was not manifestly ill-founded.

The applicants contended, with reference to domestic courts' practice and the above legal opinion of a constitutional judge, that an action under Article 11 et seq. of the Civil Code had not offered reasonable prospects of success to them. They pointed out that such a claim could only be granted when an unjustified interference with a person's personal rights lasted or where there was an imminent danger of its repetition. The Constitutional Court's decisions invoked by the Government concerned, according to the applicants, different subject-matters related to an active interference by the public authorities with the petitioners' right to privacy.

The Court finds that issues as to the availability of redress and as to the effectiveness of the remedy in question arise under the substantive complaint made by the applicants under Article 13 in conjunction with Article 6 § 1 of the Convention. It considers that the submissions made by the Government concerning non-exhaustion are closely connected with these aspects. They should therefore be joined to the merits of the application and reserved for later consideration.

In the light of the parties' submissions, the Court considers that this part of the application raises serious issues of fact and law under the Convention, the determination of which should depend on 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 further complained that their 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 admitted, with reference to the Constitutional Court's finding of 21 April 1999, that the applicants' right to a hearing within a reasonable time had been violated. They argued, however, that the case raised only an issue under Article 8 of the Convention and that a separate examination of the complaints under Article 6 § 1 was not called for.

The applicants disagreed and maintained that the Court should also entertain their complaints under Article 6 § 1. They contended that their rights to access to a court and to a hearing within a reasonable time had been violated and pointed out that the Government had submitted no argument to the contrary.

The Court considers, in the light of the parties' submissions, that the complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

4. The applicants complained that they had no effective remedy at their disposal in respect of their complaint about the length of the proceedings. They invoked Article 13 of the Convention which provides:

“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.”

The Government maintained that the applicants had an effective remedy at their disposal, namely an action for protection of their personality rights under Article 11 et seq. of the Civil Code.

The applicants refuted the Government's argument. They pointed out that the Constitution had been amended, with effect from 1 January 2002, as a result of which the Constitutional Court was entitled to grant compensation for damage of non-pecuniary nature to successful plaintiffs. In their view, had an action under Article 11 et seq. of the Civil Code been an effective remedy as argued by the Government, such an amendment would not have been necessary and the Constitutional Court would have rejected their complaint filed under Article 130(3) of the Constitution for their failure to exhaust the remedy invoked by the Government.

The Court considers, in the light of the parties' submissions, that the complaint 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.

5. Finally, the applicants complained that the above facts amounted to a violation of Article 18 of the Convention which provides:

“The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.”

The Court firstly recalls that Article 18 of the Convention does not have an autonomous role. It can only be applied in conjunction with other Articles of the Convention. There may be a violation of Article 18 in connection with another Article, although there is no violation of that Article taken alone (see Oates v. Poland (dec.), no. 35036/97, 11 May 2000).  However, after examining the applicants' submissions, the Court considers that they have not submitted any prima facie evidence pointing to a violation of that provision.

It follows that this complaint is 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 join the applications;

Joins to the merits the question relating to exhaustion of domestic remedies;

Declares admissible, without prejudging the merits, the applicants' complaints concerning the alleged violations of their rights (i) to respect for their private and family life, (ii) to have their claim determined by a tribunal within a reasonable time and (iii) to an effective remedy;

Declares the remainder of the application inadmissible.

Michael O'Boyle Nicolas Bratza Registrar President