FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 27556/04
by F.
against Slovakia
The European Court of Human Rights (Fourth Section), sitting on 18 October 2005 as a Chamber composed of:
SirNicolas Bratza, President,
MrJ. Casadevall,
MrM. Pellonpää,
MrR. Maruste,
MrK. Traja,
MsL. Mijović,
MrJ. Šikuta, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged on 19 July 2004,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of 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, Ms F., is a Slovakian national, who was born in 1959 and lives in Bratislava. She was represented before the Court by Mr I. Gažík, a lawyer practising in Prievidza. The respondent Government were represented by their Agent, Mr. P. Kresák, succeeded by Ms A. Poláčková.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 9 January 1996 the applicant gave birth to a boy. A blood test showed that the applicant’s husband had not fathered the child. The child’s father is unknown.
As the applicant had health problems at the time of delivery, the child was placed in a social institution, with the applicant’s consent, on 25 April 1996. The applicant visited her son regularly and bought necessary items and presents for him.
On 5 August 1996 the applicant claimed that she should be allowed to take care of the child.
On 9 September 1997 the Bratislava III District Court dismissed the action. The decision stated that the applicant’s situation did not allow her to take appropriate care of her son, and that she suffered from a lasting mental disease. It was served on the applicant on 20 October 1997. The applicant did not appeal.
Between 21 November 1997 and 16 March 1998 the applicant was treated as an in-patient in a psychiatric hospital.
The Government contend, with reference to a list of the visits, that the applicant’s last visit of her son took place on 2 July 1997.
The applicant submits that between 2 July 1997 and 21 November 1997 she attempted to visit her son but was told that he was in the theatre. After her in-patient treatment had ended in March 1998, the applicant submits, without giving further details, to have again unsuccessfully attempted to visit the child.
On 13 November 1997 the Bratislava III District Court delivered a judgment depriving the applicant of her legal capacity on the ground that she suffered from a mental illness. On 25 September 1998 the Bratislava Regional Court upheld the first instance judgment and the decision became final on 29 March 1999.
The documents submitted by the Government indicate that the Malacky District Court, on 20 May 1999, allowed the applicant’s son to be adopted by a couple. The judgment became final on 1 July 1999. It stated, inter alia, that the applicant’s last visit of her son took place on 2 July 1997. As she had failed to manifest any interest in the child thereafter, the boy had become free for adoption as from 2 February 1998. On 2 March 1998 he had been placed in the pre-adoption care of the couple concerned. A guardian appointed to represent the interests of the child in the proceedings agreed to the adoption. It is apparent from the judgment that the applicant was not considered to be a party to the proceedings.
On 12 July 2001 the Bratislava III District Court restored legal capacity to the applicant. Reference was made to an expert opinion submitted on 19 April 2001. In the opinion the expert summed up the applicant’s situation, as described by the applicant during the examination. According to the opinion, the applicant stated that her child born in 1996 had been placed in an institution. She could not visit him as she had been treated in a hospital. The boy had been adopted by other persons and the applicant had no information about him. She could only hope that the child was doing well. The applicant also stated that she had not been aware that it would have sufficed, as demonstrating her interest in the child, to send him a postcard.
On 13 January 2004 the applicant’s lawyer requested, on the applicant’s behalf, that the applicant should be allowed to meet her son.
In a letter dated 14 January 2004 and delivered on 19 January 2004 the social institution where the child had been placed prior to his adoption replied that the boy had not been in its care as from 2 March 1998 and that he had been adopted by a family. The adoption had been approved by a court and it was irrevocable. Reference was made to Section 63(1) and, in substance, to Section 72(1) of the Family Act.
The letter further stated that the applicant had visited the boy for the last time on 2 July 1997 and that his father was unknown. The boy had been adopted under Section 68(1)(a) of the Family Act without the applicant’s consent as she had failed to show interest in him for more than six months.
B. Relevant domestic law
1. The Family Act
The following relevant provisions of the Family Act (Zákon o rodine) were in force at the relevant time.
Under Section 63(1), following a person’s adoption the same relations as those existing between parents and children come into being between the adopted person and the persons who adopted him or her.
Paragraph 2 of Section 63 provides that a court decides on a person’s adoption upon the proposal of those who wish to adopt that person.
Section 68(1)(a), as in force until 31 March 2002, provided that, in cases where the legal representatives of a child to be adopted were his or her parents, their consent to the child’s adoption was not required when they had failed to demonstrate, for at least six months, real interest in the child which they normally should show as parents. With effect from 1 April 2002 this provision was extended in that it enumerated the following reasons as examples of the parents’ failure to show real interest in the child: failure to visit the child regularly, failure to comply regularly and voluntarily with the obligation to provide for the child’s maintenance, failure to show willingness to adjust, as far as possible, their family and social situation in a manner permitting them to take personal care of the child unless they were prevented from doing so for a serious reason.
Pursuant to paragraph 2 of Section 68, in such cases it is required that a guardian appointed to represent the interests of the child in the context of the adoption proceedings should give his or her consent to the child’s adoption.
Under Section 69(1), prior to a judicial decision on his or her adoption, the child concerned has to be in care of the person wishing to adopt him or her for at least three months.
Section 72(1) provides that, following a person’s adoption, mutual rights and obligations existing between that person and his or her original family cease to exist. The rights and obligations of a guardian appointed, as the case may be, to exercise such parental rights also cease to exist following the adoption of the person concerned.
2. The Code of Civil Procedure
Article 181(1) provides that parties to proceedings concerning the adoption of a minor are the child to be adopted, his or her parents, the person adopting the child and his or her spouse.
Under paragraph 2 of Article 181, the parents of the child to be adopted are not parties to proceedings when they are deprived of parental rights or of their legal capacity as well as in cases where their agreement is not required for adoption of their child notwithstanding that they are his or her legal representatives.
COMPLAINTS
1. Under Article 8 of the Convention the applicant complained that her right to respect for her private and family life had been violated as a result of the adoption of her son by third persons.
2. The applicant complained under Article 6 § 1 of the Convention that her right to a fair hearing by a tribunal had been violated in the context of the proceedings concerning the adoption of her son.
3. The applicant alleged a violation of Article 13 of the Convention in that she had no effective remedy at her disposal as regards the alleged violation of her rights under Articles 6 § 1 and 8 of the Convention.
THE LAW
1. The applicant complained that her right of access to a court and to respect for her private and family life had been violated in the context of the proceedings leading to the adoption of her son by third persons. She relied on Articles 6 § 1 and 8 of the Convention the relevant parts of which provide:
Article 6 § 1
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by a[n] ... tribunal ...”
Article 8
“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 application had been filed after the expiry of the six months’ time-limit laid down in Article 35 § 1 of the Convention. In their view, that period had started running on the date of the applicant’s last visit of her son on 2 July 1997 or, as the case might be, on the date when the employees of the institution had allegedly refused her permission to see the child. The applicant should have been aware of the legal provisions permitting the adoption of her child without her consent in case she had failed to demonstrate interest in him. In any event, the documents available indicated that the applicant had known of the adoption not later than on 19 April 2001 when she had made a statement to that effect before an expert. The letter of 14 January 2004 which the applicant received from the social institution concerned contained no information unknown to the applicant. The Government maintained that that letter cannot, therefore, serve as a starting point for counting the six months’ time-limit under Article 35 § 1 of the Convention.
In addition, the Government submitted that the applicant abused the right of individual application as she had not disclosed in her original application the fact that she had known of her son’s adoption not later than in April 2001.
The applicant maintained that she had not been formally notified of the decision concerning the adoption of her son. She expressed doubt that the six months’ time-limit under Article 35 § 1 of the Convention had started running at all. In any event, that time-limit could not have started running before the delivery, on 19 January 2004, of the letter in which the institution concerned informed her in writing that her son had been adopted by third persons. Prior to that date the applicant had had no official information at her disposal about the adoption of the child.
The applicant also contested the Malacky District Court’s conclusion according to which she had failed to show real interest in her son as from 2 July 1997. She submitted, in particular, that she had claimed that she should be allowed to take care of the child and that the final decision on that claim had been given by the Bratislava III District Court on 9 September 1997. The adoption judgment had been served neither on her nor on her guardian.
The Court recalls that the purpose of the six month rule laid down in Article 35 § 1 of the Convention is to promote security of the law, to ensure that cases raising Convention issues are dealt with within a reasonable time and to protect the authorities and other persons concerned from being in a state of uncertainty for a prolonged period of time (see, for example, P.M. v. the United Kingdom (dec.), no. 6638/03, 24 August 2004). Where no domestic remedy is available in respect of an act alleged to be in violation of the Convention, the six month time-limit in principle starts to run from the date on which the act complained of took place or the date on which an applicant was directly affected by, or became aware, or could have become aware, of such an act (see Aydın v. Turkey (dec.), nos. 28293/95, 29494/95 and 30219/96, ECHR 2000‑III).
In the present case the adoption of the applicant’s child had been granted by a court in the course of proceedings from which the applicant had apparently been excluded under Article 181(2) of the Code of Civil Procedure as, inter alia, she was deprived of legal capacity at the relevant time. For this reason, she was not entitled to be formally notified of the relevant decision, either in person or through the intermediary of a guardian.
The above expert opinion submitted to the Bratislava III District Court on 19 April 2001 indicates that, at the time when the report was drafted, the applicant was aware that her child had been adopted by third persons. She could not be expected to take any formal action in this respect until legal capacity was restored to her on 12 July 2001. However, after that date, more than three years had lapsed before she introduced her complaint to the Court on 19 July 2004. The Court finds no justification for such a long delay in a matter of particularly sensitive and urgent nature.
The letter of 14 January 2004 in which the institution concerned informed the applicant that her child had been placed in an adoptive family cannot be considered as a starting point for running of the six months’ time-limit as it contained information which had already been known to the applicant. Similarly, the Court does not accept the applicant’s argument that the situation is one of a continuing breach to which time-limits do not apply.
In these circumstances, having regard to the spirit and purpose of the six month rule to promote legal certainty and prevent stale claims (see for example, Devine v. the United Kingdom (dec.), no. 35667/02, 1 February 2005), the Court considers that the applicant has failed to comply with the requirement of due expedition inherent in Article 35 § 1 of the Convention.
It follows that these complaints were introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
2. The applicant complained that she had no effective remedy at her disposal as regards the alleged violation of her rights under Articles 6 § 1 and 8 of the Convention. She relied on 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 contended that the complaint was manifestly ill-founded.
The applicant disagreed.
The Court has found above that the applicant’s complaints under Articles 6 § 1 and 8 of the Convention are inadmissible. For similar reasons, in their respect, the applicant did not have an “arguable claim” and Article 13 therefore has no application to them (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, p. 23, § 52).
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 by a majority
Declares the application inadmissible.
Michael O’BoyleNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy