SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 46843/99 by Monika REMŠÍKOVÁ against Slovakia

The European Court of Human Rights (Second Section) , sitting on 7 December 2000 as a Chamber composed of

Mr C.L. Rozakis , President , Mr A.B. Baka , Mr G. Bonello , Mrs V. Strážnická , Mr P. Lorenzen , Mr M. Fischbach , Mr A. Kovler , judges , Mr E. Fribergh , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 13 November 1998 and registered on 18 March 1999,

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

Having deliberated, decides as follows:

THE FACTS

The applicant is a Slovak national, born in 1959 and living in Ilava . The respondent Government are represented by their Agent Mr P. Vr šanský.

A. The circumstances of the case [Note1]

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

In January 1993 the applicant’s husband, a Croatian national, left Slovakia for  Croatia. On 14 April 1995 the District Court ( Općinski sud ) in Korčula (Croatia) pronounced the divorce of the applicant and her husband.

1. Proceedings concerning the custody and maintenance of the applicant’s daughter

On 2 September 1993 the applicant filed an action with the Bansk á Bystrica District Court ( Okresný súd ) claiming that she should be given custody of her daughter, born in 1992, and that her husband should contribute to the child‘s maintenance.

The applicant failed to appear at a hearing which the District Court held on 21 March 1994.

On 30 March 1994 the Bansk á Bystrica District Court invited the applicant to specify her and her child’s address. The applicant communicated her address to the District Court on 18 April 1994.

On 12 May 1994 the Bansk á Bystrica District Court decided to transfer the case to the Považská Bystrica District Court as the applicant and her daughter had moved. The Považská Bystrica District Court received the case-file on 21 June 1994.

The first hearing before the Považská Bystrica District Court was scheduled for 9 August 1995. As the applicant failed to appear, the case was adjourned until 20 September 1995. On 13 June 1995 the applicant extended her claim. On 20 September 1995 the District Court heard the applicant. On 11 March 1996 the applicant requested the District Court to issue an interim measure. She withdrew the request on 17 May 1996.

On 11 April 1996 the District Court submitted to the Ministry of Justice a translation of the relevant documents which were to be sent to the Croatian authorities.

The District Court scheduled a hearing for 6 June 1996 at which the parties failed to appear. The applicant submits that she was not informed about the hearing.

On 18 June 1996 the District Court received a document submitted by the Croatian authorities. It was translated into Slovak on 16 July 1996.

On 18 September 1996 the District Court delivered a judgment by which it entrusted the child to the applicant and ordered the father to pay monthly maintenance of 100 German marks as from 15 April 1992. The judgment was served on the applicant on 27 December 1996.

The Government submit that the judgment was sent, throught the Ministry of Justice, to the competent court in Croatia on 13 December 1996. This is contested by the applicant who maintains, with reference to information which she received from the president of the Pova žská Bystrica District Court and from the judge dealing with the case, that the judgment was sent to Croatia on 13 March 1997.

The judgment was served on the applicant’s former husband on 23 March 1997.

On 19 March 1997 the applicant complained to the Minister of Justice about delays in the proceedings. On 26 March 1997 the Ministry of Justice informed the applicant that her complaint had been submitted to the presidents of both the Považská Bystrica District Court and the Bansk á Bystrica District Court.

On 14 May 1997 the president of the Bansk á Bystrica District Court informed the applicant that he was not in a position to examine her complaint about the court’s failure to proceed with the case between June 1993 and June 1994 as the file was with the Považská Bystrica District Court. In a letter dated 16 May 1997, the president of the Považská Bystrica District Court admitted that the judgment of 18 September 1996 had been served belatedly.

On 27 May 1997 the applicant lodged another complaint about delays in the proceedings with the Ministry of Justice.

On 8 December 1997 the District Court received a translation of the appeal filed by the applicant’s former husband. On 16 December 1996 the appeal was sent to the applicant and to the child’s guardian for comments. On 12 January 1998 the Považská Bystrica District Court transmitted the appeal to the Trenčín Regional Court ( Krajský súd ). On 30 January 1998 the Trenčín Regional Court quashed the first instance judgment. The decision was transmitted to the Považská Bystrica District Court on 16 April 1998 and it was served on the applicant on 4 June 1998.

On 17 June 1998 the District Court held a hearing. The applicant excused herself as she was unable to appear. On 24 July 1998 the District Court heard the applicant. It decided to request the Croatian authorities to take further evidence.

On 10 August 1998 the applicant complained about the length of the proceedings to the Supreme Court ( Najvyšší súd ). The complaint was transferred to the president of the Trenčín Regional Court. On 3 September 1998 the latter apologised to the applicant for the delayed service of the decision of 30 January 1998.

The District Court received additional information from the Croatian authorities in June 1999. It ordered the translation of the documents thus obtained in April 2000.

On 5 and 28 June 2000 the Považská Bystrica District Court held a hearing. On the latter date it delivered a judgment which has not yet become final.

2. Proceedings concerning the name of the applicant’s daughter

On 15 July 1997 the applicant claimed before the Trenčín District Court that her daughter should be allowed to use her surname instead of that of her former husband .

On 27 October 1997 the applicant complained to the president of the Trenčín Regional Court that there was no progress in the case.

On 27 November 1997 the applicant received a letter from the Tren čín District Court inviting her to submit additional information. She did so on 4 December 1997.

On 9 December 1997 a translator appointed by the District Court submitted the translation of the relevant documents. On 23 January 1998 the documents were transmitted to the Ministry of Justice with a view to requesting the Croatian authorities for co-operation.

A hearing before the District Court was scheduled for 18 June 1998. The applicant could not be present as she was abroad.

On 6 July 1998 the applicant complained to the president of the Trenčín Regional Court that the District Court had not proceeded with the case and that the judge envisaged holding the next hearing in October 1999. On 15 July 1998 the vice-president of the Trenčín District Court admitted that there had been undue delays in the proceedings and apologised to the applicant.

On 20 August 1998 the the Trenčín District Court appointed a translator with a view to having a document submitted by the applicant’s former husband on 8 June 1998 translated.

On 10 December 1998 the applicant was summoned to a hearing scheduled for 13 October 1999.

On 22 December 1998 the applicant sent a complaint about delays in the proceedings to the Minister of Justice.

On 13 October 1999 the District Court delivered a judgment which was subsequently transmitted to the Croatian authorities. The District Court has not yet been notified of the service of the judgment on the applicant’s former husband.

B. Relevant domestic law

Section 1 of Act No. 58/1969 on the liability of the State for damage caused by a State organ’s decision or by its erroneous official action (“the State Liability Act”) provides that the State is liable for damage caused by unlawful decisions delivered by a public authority in the context of, inter alia , civil proceedings.

Pursuant to Section 4 (1) of the State Liability Act, a claim for damages can only be lodged after the decision, by which damage was caused, has been quashed by the competent authority as being unlawful.

Section 18 (1) of the State Liability Act renders the State liable for any damage caused in the context of carrying out functions vested in public authorities which results from erroneous official actions of persons entrusted with the exercise of these functions.

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention that the proceedings concerning her claims of 7 June 1993 and 11 July 1997, respectively, have been of unreasonable length.

THE LAW

The applicant complains that the proceedings concerning her cases have lasted unreasonably long. She alleges a violation of Article 6 § 1 of the Convention which, so far as relevant, provides:

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

The Government object that Article 6 § 1 of the Convention is not applicable as the proceedings of which complaint is made did not determine the applicant’s “civil rights”.

The Court notes that the proceedings concern the determination of the applicant’s parental rights, namely the custody and maintenance of her minor daughter as well as a change in her daughter’s name. The Convention organs have consistently held that Article 6 § 1 is applicable to proceedings concerning various aspects of a person’s right to respect for his or her family life (see, mutatis mutandis , the Rasmussen v. Denmark judgment of 28 November 1984, Series A no. 87, pp. 12-13, § 32; the H. v. the United Kingdom judgment of 8 July 1987, Series A no. 120, p. 58, § 69; the Paulsen-Medalen and Svensson v. Sweden judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, pp.142-144, §§ 38-47; Laino v. Italy , no. 33158/96, § 18, or E.P. v. Italy, no. 31127/96, § 53). It finds no reason for departing from such case-law in the present case.

The Government further contend that the application is premature as the proceedings are still pending.

The Court considers that this objection is based on a false premise. The applicant complains about delays in the proceedings and the domestic courts’ decision on the merits of the applicant’s claims is irrelevant from the point of view of determining whether or not, at this point, the applicant’s right to a hearing within a reasonable time was respected.

The Government submit that the applicant did not lodge a petition with the Constitutional Court pursuant to Article 130 § 3 of the Constitution. They further maintain that it was also open to the applicant to claim compensation under Section 1 of the State Liability Act and conclude that she failed to exhaust domestic remedies, as required by Article 35 § 1 of the Convention.

The Court recalls its case-law that a petition to the Constitutional Court under Article 130 § 3 of the Constitution need not be exhausted in similar cases and it sees no reason for reaching a different conclusion in the present application (see Bánošová v. Slovakia (dec.), no. 38798/97, 27.4.2000, and Stan čiak v. Slovakia (dec. ) no. 40345/98, 31.8.2000, both unreported).

To the extent that the Government maintain that the applicant could lodge a claim for damages under Section 1 of the State Liability Act, the Court notes that this provision reserves the right to compensation only in respect of decisions which were quashed for unlawfulness. However, the applicant’s complaint does not concern any specific decision or allegation of unlawfulness, but the alleged failure by the domestic courts to proceed with her cases without undue delay.

The Court has noted that Section 18 (1) of the State Liability Act State renders the State liable for any damage caused by the erroneous official actions of persons entrusted with functions vested in public authorities. However, the Government have not argued, and the Court has before it no information indicating, that a claim for damages under this provision is capable of providing direct protection for the rights guaranteed by Article 6 § 1 of the Convention, or that it offers reasonable prospects of success as required by the Court’s case-law (see the Deweer v. Belgium judgment of 27 February 1980, Series A no. 35, pp. 16-17, § 29, and the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports 1996-IV, p. 1211, § 68).

Accordingly, the Court finds that the application cannot be declared inadmissible for non-exhaustion of domestic remedies.

As to the merits, the Government concede that, in the proceedings concerning the custody and maintenance of the applicant’s daughter, there were undue delays between 2 September 1993 and 11 February 1994, as well as between 21 June 1994 and 9 August 1995. They also acknowledge that the Tren čín District Court remained inactive between 15 July 1997 and 12 November 1997 in the proceedings concerning the name of the applicant’s daughter. The Government maintain, however, that the length of both sets of proceedings is mainly imputable to the complexity of the cases, to the fact that the applicant’s former husband lives abroad and to the applicant’s own conduct. The Government also refer to the considerable increase in the courts’ case-load due to radical changes in the legal and economic system in Slovakia.

The applicant submits that the length of the proceedings has been excessive and that it is mainly imputable to the Slovak authorities.

As regards the proceedings concerning the custody and maintenance of her daughter, the applicant maintains, in particular, that there were periods of inactivity between 2 September 1993 and 21 March 1994, between 21 June 1994 and 18 May 1995, and also between 20 September 1995 and 29 February 1996. She further maintains that there was undue delay in drafting and serving the Pova žská Bystrica District Court’s judgment of 18 September 1996. The applicant alleges that it took some seven months to have her former husband’s appeal translated into Slovak, that the Trenčín Regional Court’s decision of 30 January 1998 was served on her on 4 June 1998, and that the Považská Bystrica District Court remained inactive between June 1999 and April 2000.

As regards the proceedings concerning the name of her daughter, the applicant contends that the Trenčín District Court remained inactive between the introduction of her action on 9 July 1997 and 27 November 1997, as well as between 8 June 1998 and 13 October 1999.

The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant’s conduct and that of the competent authorities as well as what has been at stake for the applicant), and having regard to all the information in its possession, that an examination of the merits of these complaints is required.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION ADMISSIBLE , without prejudging the merits of the case.

Erik Fribergh Christos Rozakis              Registrar President

[Note1] Where the parties’ description of the facts differ their respective versions of the facts should be set out separately.