AS TO THE ADMISSIBILITY OF
Application No. 35274/97
by D.I.S.
against Slovenia
The European Commission of Human Rights (First Chamber) sitting
in private on 4 March 1998, the following members being present:
MM M.P. PELLONPÄÄ, President
N. BRATZA
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
Mrs M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 25 September 1996
by D.I.S. against Slovenia and registered on 11 March 1997 under file
No. 35274/97;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Slovenian citizen. He was born in 1964 and
resides in Ljubljana. The facts of the case, as submitted by the
applicant, may be summarised as follows:
The applicant's daughter was born out of wedlock in 1989.
Proceedings for the applicant's access to his child began in 1990. The
extent of access was determined by the Social Work Centre (Center za
socialno delo) on at least three occasions, on 21 December 1993,
7 April 1995 and 12 April 1996. It appears that the applicant appealed
some of these decisions and made other proposals with respect to
contacts. The decision currently in force is a decision of the Social
Work Centre in Ljubljana Moste Polje of 12 April 1996, which provides
for access on three weekends and one week during holidays per year.
The applicant states that he had always had difficulty in
enforcing access, but that since November 1996 he has not seen his
daughter at all, and that recently he has not been able to talk to her
on the phone as she refused to talk to him.
In the enforcement proceedings following the decision of
12 April 1996 the Local Administrative Authority first postponed the
issuing of the enforcement order as it was informed by the applicant
that it might be possible to agree with the mother of his daughter. As
this turned out not to be possible the Local administrative Authority
issued on 10 September 1997 an enforcement order with a prescribed fine
of SIT 50,000.00.
In addition, after the decision of 12 April 1996 the applicant
lodged a new application for more contacts. This was rejected by the
Social Work Centre in Ljubljana Moste Polje on 11 June 1997 and the
previous decision of 12 April 1996 was confirmed. The applicant
appealed against the decision of 11 June 1997 and the case is now
pending before the Ministry of Labour, Family and Social Affairs
(Ministrstvo za delo, druzino in socialne zadeve).
In the course of one set of proceedings the applicant lodged on
15 November 1994 a constitutional complaint to the Constitutional
Court, and filed seven further submissions in 1995 and 1996, the last
on 27 December 1996. The applicant complained that no decision had been
taken by the Supreme Court in the action he lodged on
20 September 1994. The Constitutional Court dismissed the complaint on
22 January 1997 on grounds of procedural deficiencies, namely that the
applicant had not exhausted all remedies, and found no justification
for the case to be considered exceptionally. The Constitutional Court
stated that the applicant should, if complaining of the length of
proceedings, in principle first have lodged an administrative complaint
provided by Article 157 para. 2 of the Constitution.
COMPLAINTS
The applicant complains that his family life suffered as a result
of the lengthy proceedings before the Constitutional Court which took
two years and two months to decide on his constitutional complaint. He
also claims that the Constitutional Court was wrong when dismissing his
complaint. The applicant claims that the enforceable decision on access
itself violates his right to family life as three weekends and one week
a year is not sufficient properly to raise and educate one's child. The
applicant invokes Articles 6 para. 1 and 8 of the Convention.
THE LAW
1. The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention about the length of the proceedings before the
Constitutional Court.
Article 6 (Art. 6) of the Convention, insofar as relevant,
provides as follows:
"1. In the determination of his civil rights and obligations
..., everyone is entitled to a fair and public hearing within a
reasonable time ..."
The Commission first notes that the applicant does not complain
about, and has not submitted any documents relating to, the proceedings
prior to the Constitutional Court's decision. The complaint is limited
to the length of proceedings before the Constitutional Court.
The Constitutional Court in a preliminary examination of the case
found that it was not competent as the applicant had failed to exhaust
all the remedies available in his case and found no ground for the case
to be dealt with exceptionally.
The Commission first recalls the case-law of the European Court
of Human Rights to the effect that Constitutional Court proceedings do
not in principle fall outside the scope of Article 6 para. 1
(Art. 6-1) of the Convention. It may apply to preliminary proceedings
in which the German Constitutional Court decides on the admissibility
of the case, if this can be decisive for the applicant's civil right
(see, for example, Eur. Court HR, Sussmann v. Germany judgment of 16
September 1996, Reports 1996-IV, No. 15, paras. 39, 45). Assuming
therefore that Article 6 (Art. 6) applies to the present proceedings
and in the light of the recent case-law of the European Court of Human
Rights to the effect that all stages of the proceedings have to be
resolved within a reasonable time (for example, Eur. Court HR, Robins
v. the United Kingdom judgment of 23 September 1997, Reports 1997-V,No.
49, para. 28) the Commission notes that the proceedings before the
Constitutional Court lasted 2 years and 2 months. In this period the
applicant made seven further submissions which appear to be related to
the matter.
Having regard to the case-law under which the reasonableness of
the length of proceedings must be assessed in the light of the
particular circumstances of the case, in particular the complexity of
the case and the conduct of the applicant and of the relevant
authorities (see, for example, Eur. Court HR, Terranova v. Italy
judgment of 4 December 1995, Series A no. 337-B, p. 21, para. 20) and
the importance of what is at stake for the applicant in the litigation
(see, among other authorities, Eur. Court HR, Allenet de Ribemont v.
France judgment of 10 February 1995, Series A no. 308, p. 19,
para. 47), the Commission finds that the period of two years and two
months did not exceed, in this case, the "reasonable time" required
under Article 6 (Art. 6) of the Convention.
It follows that this part of the application is manifestly
ill*founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant complains under Article 8 (Art. 8) of the
Convention about the enforceable decision which only allows him
contacts with his daughter three weekends and one week a year, claiming
that this is in breach of his right to a family life as it is not
enough to participate actively in the bringing up of his daughter.
Article 8 (Art. 8) of the Convention, insofar as relevant,
provides as follows:
"1. Everyone has the right to respect for his private and
family life ..."
The Commission first notes that the applicant makes submissions
not only in his own name but also in that of his 8 year old daughter.
He considers himself to be her representative. The Commission notes
that the applicant has not been formally appointed as his daughter's
representative. It appears that under domestic law, as custody of the
child is with the mother, the applicant would not be entitled to act
as her representative in domestic proceedings. In any event, the
Commission is not required to determine whether the application is made
by the applicant alone or also on behalf of his daughter as well, since
to the extent that the daughter's right to respect for family life is
at issue, the conclusions reached below apply equally to her.
With regard to the above complaints the Commission notes that the
applicant has not appealed the decision of 12 April 1996 to the
Ministry of Labour, Family and Social Affairs and subsequently to the
Supreme and Constitutional Courts. Any complaints regarding its
substance must therefore be rejected under Article 27 para. 3
(Art. 27-3) of the Convention for failure to exhaust domestic remedies.
3. The applicant further complains that the decision of the Social
Work Centre of 12 April 1996 has not been respected and that the State
has failed to enforce it, in breach of his right to respect for family
life.
The European Court of Human Rights had previously found that
insufficient activity on the part of the social welfare authorities in
giving effect to the court decisions and enforcement orders to arrange
access of a father to a child may gave rise to a violation of a
father's right to respect for his family life (Eur. Court HR, Hokkanen
v. Finland judgment of 23 September 1994, Series A no. 299-A, p. 23,
paras. 60-62,). However, in the present case, there were a number of
contacts between the applicant and his daughter and the difficulties
arose with the new decision on contacts. The applicant at first tried
to agree with the child's mother, and, when this was not possible,
informed the Local Administrative Authority, which had in the meantime
awaited settlement, on its failure. The Local Administrative Authority
therefore issued an enforcement order and imposed a fine on
10 September 1997. If the mother still refuses to comply with the
order, further orders can be made and it will be open to the applicant
to pursue his complaints under Article 8 (Art. 8) of the Convention by
way of a constitutional complaint, as provided for in Articles 160 and
162 of the Slovenian Constitution and Article 50 of the Constitutional
Court Act. In these circumstances the Commission cannot find that the
relevant authorities have failed to give effect to court orders or to
protect the applicant's right under Article 8 (Art. 8) of the
Convention.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO M.P. PELLONPÄÄ
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy