FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 1876/07
by Irena JESENSKÁ and Otto JESENSKÝ
against Slovakia
The European Court of Human Rights (Fourth Section), sitting on 14 December 2010 as a Committee composed of:
Ljiljana Mijović, President,
Ledi Bianku,
Nebojša Vučinić, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 2 January 2007,
Having regard to the comments submitted by the Government of the Slovak Republic (“the Government”),
Having deliberated, decides as follows:
THE FACTS
The applicants, Ms Irena Jesenská (“the first applicant”) and Mr Otto Jesenský (“the second applicant”), are mother and son. They are Slovak nationals who were born in 1958 and 1988 respectively and live in Košice. The Government are represented by their Agent, Mrs M. Pirošíková.
The facts of the case, as submitted by the parties, may be summarised as follows.
A. Enforcement proceedings
On 16 August 1994 the first applicant, acting on behalf of the second applicant, initiated enforcement proceedings on child’s maintenance before the Košice II. District Court. The second applicant reached the age of maturity on 22 January 2006. From that date he has been asserting his rights on his own behalf.
On 15 September 1994 the District Court ordered the enforcement of the due child’s maintenance in favour of the second applicant including the monthly child’s maintenance pending the proceedings by deductions from the debtor’s salary.
During the subsequent course of the proceedings, in intervals from three months up to one year, the District Court requested the debtor to report on of his current employment and income. The debtor had several times refused delivery of the court’s requests, had not answered them, or had informed the District Court that he had no income and was receiving general welfare benefits.
On 10 April 1996 the District Court in a separate set of proceedings acquitted the debtor of the charge of neglecting his alimentary duty on the ground that he had paid the child’s maintenance for the relevant period.
In another set of proceedings, on 13 December 2002, the District Court sentenced the debtor to eight months’ imprisonment suspended for one year for neglecting child’s maintenance. On 18 March 2003 the Košice Regional Court upheld the judgment.
Following the change of legislation, the applicants were obliged to initiate enforcement proceedings of the claim in issue by an enforcement officer. The applicants did so and on 12 December 2005 informed the District Court that they had requested an enforcement officer to carry out the proceedings.
On 14 December 2005 the District Court assigned an enforcement officer to enforce the outstanding amount of money.
On 14 August 2007 the District Court stayed the enforcement proceedings for one year upon the debtor’s request.
The applicants appealed. On 11 December 2007 the Košice Regional Court quashed that decision and remitted the case to the District Court. Subsequently, on 14 April 2008, the District Court rejected the debtor’s request for postponement of the enforcement. The decision became final on 19 October 2008.
On 26 February 2009 the District Court approved the auction sale of the debtor’s and the first applicant’s flat which had been carried out by the enforcement officer. On 21 July 2009 it approved the distribution of the proceeds of the sale. One of the debtor’s creditors appealed against the latter approval.
The case file was transmitted to the court of appeal in March 2010. In July 2010 the applicants informed the Court that the due amount had not yet been paid to them.
B. Constitutional proceedings
On 20 June 2006 the Constitutional Court decided that there had been no violation of the applicants’ right to a hearing within a reasonable time in the proceedings pending before the District Court. The Constitutional Court held that during the course of the enforcement proceedings the debtor had worked with eight employers for shorter periods of time, had failed to inform the District Court of his employment, had avoided working and paying the child’s maintenance and had been unemployed for more than seven years. Imposing fines on the debtor and his former employers who had not respected their obligation to inform the District Court of the employment termination and of the amount deducted from the debtor’s salary would not assure payment of the due amount since the periods of the debtor’s employment were short.
The Constitutional Court concluded that the District Court had regularly invited the debtor to report on his financial situation. Therefore it could not be held liable for the above circumstances of the case.
COMPLAINT
The applicants complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention.
THE LAW
The Government relied on the Constitutional Court’s finding to the effect that the delays had been caused mainly by the debtor’s behaviour, who had frequently changed employment or had been unemployed which could not be imputable to the District Court. The District Court requested in regular intervals information on whether the debtor’s financial situation had changed and had not caused any unnecessary delays. As to the course of the proceedings following the Constitutional Court’s judgment, the Government submitted that the applicants were obliged to have again recourse to the constitutional complaint if they considered the length of the proceedings in breach of their right to a hearing within a reasonable time under Article 6 § 1 of the Convention.
The period to be taken into consideration began on 16 August 1994. At the time of the Constitutional Court’s judgment the length of the proceedings had been more than eleven years and five months at one level of jurisdiction for the first applicant and some five months more for the second applicant. The Court observes that the Constitutional Court found no violation of the applicants’ right to a hearing without undue delay holding that the length of the proceedings had been influenced primarily by the debtor’s conduct.
The Court observes that in the present case the debtor’s behaviour was directly decisive for the enforcement of the claimed amount since the enforcement was carried out by way of deductions from the debtor’s salary.
Moreover, the amount to enforce had continuously been raising since it consisted not only of the outstanding amount for the second applicant’s maintenance but also of his monthly maintenance in the course of the proceedings.
The Court notes that the District Court continuously proceeded with the case by way of requesting the debtor to inform it of his social and financial situation. The Court further notes the finding of the Constitutional Court to the effect that the debtor was evading payment of the second applicant’s maintenance by not working and not informing the District Court of his current financial income. The Court also notes that the domestic authorities charged the debtor and the same District Court sentenced him for neglecting child’s maintenance.
Having regard to the above facts, in particular to the behaviour of the debtor and the domestic courts’ conduct, the Court concurs with the Government that the District Court had not caused any unnecessary delays in breach of Article 6 § 1 of the Convention. Therefore, in respect of the period under consideration, the Court finds no reason to depart form the Constitutional Court’s conclusion that the District Court cannot be held liable for the delay occurred.
Having regard to the above conclusion the Court does not find it necessary to examine separately the procedural position of the first applicant within the enforcement proceedings and the victim status of the first applicant. Accordingly, in respect of the period prior to the Constitutional Court’s judgment the applicants cannot claim to be a “victim” within the meaning of Article 34 of the Convention.
The Court reiterates that in certain situations applicants who have already sought redress before the competent domestic authority in respect of their complaint under Article 6 § 1 about excessive length of proceedings may be required to have recourse again to that remedy irrespective of whether or not they have filed an application under Article 34 of the Convention in the meantime. Such is the case, for example, when an applicant considers excessively long the period which had lapsed after the first finding of the competent domestic authority (see, mutatis mutandis, Musci v. Italy [GC], no. 64699/01, § 141, ECHR 2006‑V (extracts) and, in particular, when the first decision of the domestic authority is consistent with Convention principles (see Sukobljević v. Croatia, no. 5129/03, § 45, 2 November 2006, Becová v. Slovakia (dec.), no. 23788/06, 18 September 2007).
Turning to the facts of the present case, in the light of the above, the Court considers that the applicants should have again sought redress before the Constitutional Court as regards their allegation that further delays had occurred in the proceedings. They have however not done so.
It follows that the applicants’complaint must be rejected in accordance with Article 35 §§ 1, 3 and 4 of the Convention as being manifestly ill‑founded and for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Declares the application inadmissible.
Fatoş AracıLjiljana Mijović
Deputy RegistrarPresident
Full & Egal Universal Law Academy