FIRST SECTION

DECISION

Application no. 14661/17 Jason Scott GERBER against Slovakia

The European Court of Human Rights (First Section), sitting on 31 August 2021 as a Committee composed of:

Péter Paczolay, President, Alena Poláčková, Gilberto Felici, judges, and Attila Teplán, Acting Deputy Section Registrar,

Having regard to the above application lodged on 11 February 2017,

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, Mr Jason Scott Gerber, is a national of the United States, who was born in 1968 and lives in New York. He was represented before the Court by Ms V. Kurucová , a lawyer practising in Bratislava.

The Slovak Government (“the Government”) were represented by their Co-Agent, Ms M. Bálintová, from the Ministry of Justice.

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

The applicant has been in dispute with his ex-wife over the custody and visiting rights in respect of their two children. Upon his ex-wife’s motion of 6 December 2013, the first-instance court issued, on 10 December 2013, a preliminary measure, against which the applicant appealed on 5 February 2014 and which an appellate court upheld on 23 April 2014. On 28 January 2015, the latter decision was quashed by the Supreme Court on the grounds that the lower courts had failed to have all the documents translated into a language understood by the applicant. On 13 September 2016 (enforceable on 7 November 2016), the appellate court upheld the preliminary measure again, referring inter alia to its decisions of 19 November 2014 and 18 May 2016 by which it had already changed the arrangements put in place by the impugned preliminary measure.

By Constitutional Court’s decision no. I. ÚS 370/2016 of 8 June 2016 (served on 11 August 2016), the applicant’s constitutional complaint of 29 March 2016, challenging mainly the length of the proceedings no. 37P/325/2013 on the above preliminary measure, was rejected as not complying with formal requirements. The Constitutional Court considered that, in a situation where the authority form accompanying the constitutional complaint empowered an attorney office (legal person) to act on the applicant’s behalf and where the authorised representative of that attorney office who had signed the form had later been suspended in the exercise of her activities of attorney, the applicant should have submitted a new authority form empowering another attorney.

Constitutional Court Act (Law no. 38/1993 Coll., as amended)

Pursuant to section 20 (2), a person who wishes to bring proceedings before the Constitutional Court shall submit an authority for the lawyer designated specifically for the proceedings before that court.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention that he was deprived of access to the Constitutional Court due to an excessively formalistic and unforeseeable application of procedural rules. He asserted that, as stated in his constitutional complaint and the authority form, he was represented by an attorney office as a legal person (acting, at the time of the Constitutional Court’s decision, through a new authorised representative who was an attorney), which complied with the Constitutional Court Act and the Advocacy Act.

The applicant further complained, under Article 6 § 1 of the Convention, about the excessive length of the proceedings on the preliminary measure, which also amounted to a violation of his right to respect for family life under Article 8 of the Convention, and, under Article 13 of the Convention, about the ineffectiveness of the constitutional complaint.

THE LAW

The applicant complained that the Constitutional Court had deprived him of access to that court. He relied on Article 6 of the Convention, which, in so far as relevant, reads as follows:

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

The Government claimed that Article 6 was not applicable to the proceedings at issue since the subject matter of the applicant’s constitutional complaint concerned exclusively the length of the proceedings before the ordinary courts. The Court has already stated that in such circumstances the outcome of the constitutional proceedings complained of was not directly decisive for the applicants’ civil rights and obligations (see Mikolaj and Mikolajová v. Slovakia , no. 68561/01, § 36, 29 November 2005).

The applicant argued that his case concerned a real and serious dispute originating from the domestic law and that Article 6 was therefore applicable under its civil limb.

The Court notes that in his complaint to the Constitutional Court the applicant complained about unnecessary delays in the proceedings on a preliminary measure before the ordinary courts and sought acceleration of those proceedings.

The Court reiterates that the relevant test in determining whether Article 6 of the Convention applies to the Constitutional Court proceedings is whether the result of those proceedings is capable of affecting the outcome of the dispute before the ordinary courts (see Süßmann v. Germany [GC], no. 20024/92, § 41, 16 September 1996).

In the present case, the applicant’s constitutional complaint concerned the length of the proceedings. In the event of success, the Constitutional Court could only acknowledge a violation of the applicant’s right to have his case heard without delay, award him financial satisfaction on that ground, and order the relevant court to proceed without further delays. It could however not quash any decision issued by the ordinary courts. Therefore, the outcome of the proceedings before the Constitutional Court was not directly decisive for the applicant’s civil rights and obligations (see Mikolaj and Mikolajová , cited above, § 41, and Bohucký v. Slovakia , no. 16988/02, § 25, 23 October 2007).

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

Relying on Articles 6 and 8 of the Convention, the applicant further complained about the excessive length of the proceedings on the preliminary measure and its repercussions on his right to respect for family life. Under Article 13 of the Convention, he challenged the effectiveness of the constitutional complaint.

The Government argued that, given that the applicant had not complied with the procedural requirements of the domestic law when lodging his constitutional complaint, he had failed to exhaust the domestic remedies properly. The Government further pointed to the fact that the impugned proceedings had lasted only for two years and eleven months before three levels of jurisdiction. The period under examination should not have been extended beyond 19 November 2014: on that date, the appellate court changed the impugned preliminary measure of 10 December 2013 and denied the applicant any contact with his children. Consequently, the further continuation of the proceedings no. 37P/325/2013 concerning the above preliminary measure, which had in the meantime become obsolete, was no longer decisive for the applicant’s civil rights and obligations.

The applicant disagreed, claiming that account had to be taken of the nature of the proceedings which involved his right to respect for family life.

The Court has examined the application and considers that, in the light of all the material in its possession, including the parties’ observations, and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 23 September 2021.

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Attila Teplán Péter Paczolay Acting Deputy Registrar President