AS TO THE ADMISSIBILITY OF
Application No. 31534/96
by Wilibald Rudolf MATTER
against the Slovak Republic
The European Commission of Human Rights (Second Chamber) sitting
in private on 16 September 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms. M.-T. SCHOEPFER, 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 7 August 1993 by
Wilibald Rudolf MATTER against the Slovak Republic and registered on
20 May 1996 under file No. 31534/96;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
17 January 1997 and the observations in reply submitted by the
applicant on 8 February 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Slovak national born in 1925. He is disabled
and resides in Cadca.
The facts of the case, as submitted by the parties, may be
summarised as follows.
A. Particular circumstances of the case
In 1976 the applicant's legal capacity was restricted. In 1983
the Cadca District Court (Okresny súd - "the District Court") deprived
the applicant of legal capacity entirely.
On 18 February 1987 the District Court, at the applicant's
initiative, introduced proceedings pursuant to Section 81 of the Code
of Civil Procedure (see "The relevant domestic law" below) with a view
to determining whether legal capacity could be restored to the
applicant. In 1989 the District Court dismissed the applicant's
request. In 1990 the Supreme Court (Najvyssí súd) quashed the
aforesaid decision and sent the case back to the District Court. The
latter appointed an expert with a view to examining the applicant's
mental health.
On 16 April and 20 August 1991 the expert informed the District
Court that the applicant had refused to be examined by him as an out-
patient. The expert expressed his opinion that an objective assessment
of the applicant's mental health could only be carried out by examining
him in a mental hospital.
On 1 April 1992 the District Court ordered that the applicant
should be examined in a mental hospital pursuant to Section 187 para. 3
of the Code of Civil Procedure. The District Court noted that the
applicant had refused to undergo an out-patient examination and held,
with reference to the expert's opinion, that the applicant's
examination in a mental hospital was necessary in order to establish
whether legal capacity could be restored to him.
The District Court charged the expert to establish whether the
applicant's state of health was the same as at the moment when he had
been deprived of legal capacity and to express his opinion whether the
applicant's state of health changed to such an extent that legal
capacity could be restored to him entirely.
On 30 November 1992 the Banská Bystrica Regional Court (Krajsky
súd) dismissed the applicant's appeal against the District Court's
decision of 1 April 1992. It found that the Cadca Local Office
(Obvodny úrad), i.e. the administrative authority which had custody of
the applicant, had consented to his examination in a mental hospital,
and that the applicant was not entitled to lodge an appeal.
In its aforesaid decision the Banská Bystrica Regional Court
recalled that the District Court had decided to start the proceedings
pursuant to Section 81 of the Code of Civil Procedure following the
applicant's initiative and that the District Court considered the
applicant's examination in a hospital necessary within the meaning of
Section 187 para. 3 of the Code of Civil Procedure as the applicant had
refused to be examined by an expert.
The Regional Court further stated that the applicant had appealed
against the District Court's decision as he "disagreed with an
examination in a mental hospital and argued that he had been entirely
deprived of his legal capacity without justification".
On 13 May 1992 the District Court invited the applicant to
report, on 21 May 1992, to the mental hospital in Sucany. The
applicant was informed that if he failed to appear he could be brought
there pursuant to Section 52 para. 1 of the Code of Civil Procedure.
The applicant did not come to the hospital. On 3 May 1993 the District
Court invited the applicant again to report, on 12 May 1993, to the
mental hospital. The applicant was informed that he could be brought
to the hospital if he failed to appear. The applicant did not comply
with the court's request.
On 19 August 1993 two policemen came to the applicant's flat.
They presented an order by the President of the District Court to the
applicant and brought him to the hospital. After a short initial
period of resentment the applicant started co-operating with the
expert. The examination was completed and the applicant was released
from the hospital on 2 September 1993.
On 23 November 1993 the District Court restricted the applicant's
legal capacity in that he was not entitled to act before public
authorities on his own, to conclude contracts and assume obligations
in writing and to have a regular occupation. The court referred to the
expert's report of 29 October 1993 according to which the applicant,
who had undergone a brain operation in 1984 and had had several heart
attacks, suffered from paranoid psychosis and from an organic
psychosyndrome.
On 14 September 1993 the applicant complained to the
Constitutional Court (Ústavny súd) that, inter alia, he had been
forcibly examined in a mental hospital and that various authorities had
dealt with his submissions with unreasonable delays. In his letter the
applicant stated that on 1 April 1992 the District Court had decided,
against his will, to appoint as expert in the applicant's case the
director of the mental hospital in Sucany, that on 30 November 1992 the
Banská Bystrica Regional Court had dismissed his appeal against this
decision, and that on 19 August 1993 he had been brought to the
hospital by two armed policemen.
On 20 September 1993 the applicant supplemented his submissions.
On 9 December 1993 a judge of the Constitutional Court requested the
applicant to supplement his submissions in accordance with the relevant
provisions of the Constitutional Court Act.
The applicant failed to supplement his submissions within the
time-limit set for this purpose, and on 20 January 1994 the
Constitutional Court rejected the petition on the ground that it did
not contain the information provided for in Section 20 of the
Constitutional Court Act.
The applicant appealed against the District Court's decision of
23 November 1993 and requested that legal capacity should be restored
to him entirely. On 30 August 1994 the Supreme Court rejected the
applicant's request that his case should be transmitted to the
Bratislava City Court (Mestsky súd). On 6 March 1995 the Supreme Court
dismissed the applicant's request for exclusion of the Banská Bystrica
Regional Court's judges dealing with his appeal.
On 30 October 1995 the Banská Bystrica Regional Court quashed the
first instance decision and sent the case back to the District Court
as the latter had not heard the expert who had examined the applicant.
On 12 and 17 January 1996 respectively the Ministry of Justice
and the President of the Banská Bystrica Regional Court informed the
applicant that his complaints about delays in the proceedings were
transmitted to the President of the District Court. On 23 January 1996
the latter informed the applicant that as he lacked legal capacity, he
could only transmit his submissions to the court through the
intermediary of his guardian.
On 5 February 1996 the District Court decided to obtain a second
expert opinion on the applicant's mental health and adjourned the
proceedings sine die.
On 31 October 1996 the District Court requested the Ministry of
Health to indicate a health institution that could prepare a second
expert opinion. On 18 November 1996 the Ministry suggested that the
applicant be examined at the psychiatric clinic of the University
Hospital in Bratislava.
On 22 November 1996 the head of the Cadca District Office
(Okresny úrad) requested that the District Office be discharged of its
function as the applicant's guardian. On 7 January 1997 the District
Office proposed that a lawyer practising in Cadca be appointed guardian
instead.
B. Relevant domestic law
Constitutional provisions
Pursuant to Article 17 para. 6 of the Constitution a person may
be held in a medical institution without his or her consent only in
cases provided for by law.
Article 19 para. 2 of the Constitution guarantees to everyone the
right to be free from unjustified interference with his or her privacy
and family life.
Article 48 para. 2 of the Constitution guarantees to everyone the
right to have his or her case tried, inter alia, without unreasonable
delay.
Pursuant to Article 130 para. 3 of the Constitution the
Constitutional Court may commence proceedings also upon a petition
submitted by an individual or a corporation claiming to have rights
violated.
Constitutional Court Act
Section 20 of the Constitutional Court Act provides as follows:
"1. A proposal to start proceedings shall be submitted to the
Constitutional Court in writing. Such a proposal shall specify
which matter it concerns, by whom it is submitted, which decision
the person concerned seeks to obtain, the reasons on which the
proposal is based and the evidence to be taken. A proposal to
start proceedings shall be signed by the person concerned or his
or her representative.
2. The provisions of para. 1 are applicable also to bringing a
petition [pursuant to Article 130 para. 3 of the Constitution]".
Code of Civil Procedure
Section 52 para. 1 provides that if a person unjustifiedly fails
to appear at a hearing or before an expert, the president of the
court's chamber can order that such a person should be brought there
provided that the person concerned was previously advised of such a
possibility.
Pursuant to Section 81 courts are entitled to start proceedings
ex officio in cases concerning, inter alia, a person's legal capacity.
In such a case the president of the court's chamber shall issue a
decision which is to be delivered to the participants.
Section 186 para. 3 entitles persons who were deprived of legal
capacity to lodge a proposal to start proceedings with a view to having
their legal capacity restored.
In proceedings concerning a person's legal capacity the court
shall, pursuant to Section 187 para 3 of the Code of Civil Procedure,
always hear an expert. Upon the latter's proposal the court can order
that the person concerned should be examined in a hospital for a
maximum period of three months if it is considered necessary for
examination of his or her state of health.
Pursuant to Section 190 a court shall quash a judgment if it is
later discovered that the conditions for deprivation of a person of his
or her legal capacity or its restriction were not met.
State Administration of Courts Act
According to Section 17 para. 1 of the State Administration of
Courts Act (Zákon o sídlach a obvodoch súdov Slovenskej republiky,
státnej správe súdov, vybavovaní stazností a o volbách prísediacich)
No. 80/1992, any natural person or corporation can turn to State
authorities responsible for the administration of courts (the Ministry
of Justice, the President and Vice-President of the Supreme Court and
the Presidents and Vice-Presidents of Regional and District Courts)
with complaints only in cases of delayed proceedings or misconduct
caused by improper performance of and/or undignified interference with
the proceedings by officers of the court. According to Sections 24 -
27 of the Act the responsible authority is required to establish all
relevant facts and, if necessary, hear the persons concerned.
Examination of the complaint is to be terminated within two months, and
the complainant is to be informed in writing of the conclusion.
COMPLAINTS
The applicant complains that legal capacity has not been restored
to him entirely, that he was examined in a mental hospital against his
will and that the proceedings concerning his claim that legal capacity
should be restored to him have lasted unreasonably long.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 7 August 1993 and registered
on 20 May 1996.
On 16 October 1996 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on
17 January 1997, after an extension of the time-limit fixed for that
purpose. The applicant replied on 8 February 1997.
On 4 March 1997 the Commission granted the applicant legal aid.
On 18 March 1997 the lawyer originally chosen by the applicant informed
the Commission that the applicant does not wish to be represented by
a Slovak lawyer in the proceedings before the Commission.
THE LAW
1. The Government first point out that the applicant did not
introduce the application through the intermediary of his guardian.
They contend that according to an expert's finding the applicant is a
person suffering from mental disorder of lasting character who was
deprived of legal capacity, and that in accordance with Section 38
para. 1 of the Civil Code all his acts aiming at the determination of
his rights and obligations are void. The Government therefore contend
that the Commission should examine whether the applicant has a standing
to introduce an application pursuant to Article 25 (Art. 25) of the
Convention.
The Commission recalls that Article 25 (Art. 25) of the
Convention grants the right to introduce an application before the
Commission to "any person" regardless of his or her status under
domestic law (see, mutatis mutandis, No. 1527/62, Dec. 4.10.62,
Yearbook 5 pp. 238, 246). Accordingly, the Commission considers that
the applicant is entitled, of his own accord and without being
represented by his guardian, to introduce an application before the
Commission.
2. The applicant complains that legal capacity has not been restored
to him entirely.
The Commission notes that the proceedings concerning the
applicant's claim in this respect are still pending before the District
Court.
It follows that this part of the application is premature and,
accordingly, manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
3. The applicant further complains that he was examined in a mental
hospital against his will. The Commission will examine this complaint
under Article 8 (Art. 8) of the Convention which provides, insofar as
relevant, as follows:
"1. Everyone has the right to respect for his private ... 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 contend that the applicant has not exhausted
domestic remedies as he did not introduce his petition to the
Constitutional Court in accordance with the formal requirements set out
in the Constitutional Court Act. They contend, in particular, that the
applicant did not submit his petition through the intermediary of his
guardian and that he failed to supplement it as requested by the
Constitutional Court.
To the extent that the Government contend that the applicant did
not submit his petition through the intermediary of his guardian, the
Commission recalls that persons wishing to bring an application before
the Commission are only requested to exhaust remedies which are
accessible, i.e. the person concerned must be able to institute the
relevant proceedings himself or herself (see No. 12604/86, Dec.
10.7.91, D.R. 70, p. 125). For this reason the Commission considers
that a petition to the Constitutional Court would only meet the
requirement of accessibility if the applicant had the right to lodge
it of his own initiative and without the intermediary of the public
authority which was appointed his guardian.
As to the Government's objection that the applicant failed to
comply with the requirements laid down in Section 20 of the
Constitutional Court Act, the Commission recalls that the persons
concerned are normally required, in order to exhaust domestic remedies
in accordance with Article 26 (Art. 26) of the Convention, to pursue
those remedies available under national law, as interpreted and applied
by the competent authorities (see, e.g., No. 9022/80, Dec. 13.7.83,
D.R. 33, p. 21).
However, the European Court of Human Rights has recognised that
Article 26 (Art. 26) must be applied with some degree of flexibility
and without excessive formalism. The rule of exhaustion of domestic
remedies is neither absolute nor capable of being applied
automatically; in reviewing whether it has been observed it is
essential to have regard to the particular circumstances of each
individual case. Accordingly, realistic account must be taken not only
of the existence of formal remedies in the legal system of the
Contracting Party concerned but also, inter alia, of the personal
circumstances of the applicants (see Eur. Court HR, Akdivar v. Turkey
judgment of 16 September 1996,
Reports 1996-IV, No. 15, para. 69).
In the present case the applicant lodged, on 14 September 1993,
a petition before the Constitutional Court. On 20 September 1993 the
applicant supplemented his submissions. On 9 December 1993 a judge
of the Constitutional Court requested the applicant to supplement his
submissions in accordance with the relevant provisions of the
Constitutional Court Act. As he failed to do so within the time-limit
set for this purpose, the Constitutional Court rejected his petition
on the ground that it did not contain the information provided for in
Section 20 of the Constitutional Court Act.
The Commission recalls that Section 20 of the Constitutional
Court Act provides for a petition to specify which matter it concerns,
by whom it is submitted, which decision the petitioner seeks to obtain,
the reasons on which the proposal is based and the evidence to be
taken. A petition to start proceedings shall be signed by the claimant
or his or her representative.
In his submissions to the Constitutional Court of 14 September
1993 the applicant expressly complained that he had been forcibly
examined in a mental hospital. In particular, he stated that on
1 April 1992 the District Court had decided, against his will, to
appoint as expert in his case the director of the mental hospital in
Sucany, that on 30 November 1992 the Banská Bystrica Regional Court had
dismissed his appeal against this decision and that subsequently he was
brought to the hospital by two armed policemen.
The Commission considers that these submissions cover, at least
in substance, the complaint which the applicant raises before the
Commission. The Commission further notes that the respondent
Government have not specified which formal requirements of Section 20
of the Constitutional Court Act the applicant failed to comply with.
In these circumstances, and having regard to the personal
circumstances of the applicant who is deprived of his legal capacity
and, according to the information submitted by the respondent
Government, suffers from a mental disorder of lasting character, the
Commission considers, and even assuming that a petition pursuant to
Article 130 para. 3 of the Constitution represented an effective remedy
in the applicant's case, that this part of the application cannot be
rejected for the applicant's failure to exhaust domestic remedies.
As to the merits, the Government admit that the examination of
the applicant in a mental hospital amounted to an interference with his
rights under Article 8 para. 1 (Art. 8-1) of the Convention but
consider that this interference was compatible with the requirements
of para. 2 of Article 8 (Art. 8-2). In particular, the Government
contend that the applicant was examined in accordance with Section 187
para. 3 of the Code of Civil Procedure, that his examination pursued
the legitimate aim of protection of health and morals and of the rights
and freedoms of others and that this interference was necessary in a
democratic society within the meaning of Article 8 para. 2
(Art. 8-2) of the Convention.
The applicant disagrees with the Government and contends, in
substance, that his right to respect for private life has been
violated.
After an examination of this complaint in the light of the
parties' submissions, the Commission considers that it raises questions
of fact and law which can only be determined by an examination of the
merits. It follows that this part of the application cannot,
therefore, be declared inadmissible as being manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
No other grounds of inadmissibility have been established.
4. Finally, the applicant complains that the proceedings concerning
the restoration of his legal capacity have lasted unreasonably long.
The Commission will examine this complaint under Article 6 para. 1
(Art. 6-1) of the Convention which, insofar as relevant, provides as
follows:
"In the determination of his civil rights and obligations ...
everyone is entitled to a ... hearing within a reasonable time
..."
The Government contend that the applicant failed to exhaust
domestic remedies as he did not lodge, through the intermediary of his
guardian, a complaint pursuant to Section 17 para. 1 of the State
Administration of Courts Act No. 80/1992 and, subsequently, a petition
pursuant to Article 130 para. 3 of the Constitution.
The Commission recalls the Convention organs' case-law, according
to which the decisive question in assessing the effectiveness of a
remedy concerning a complaint about the length of proceedings is
whether the applicant can raise this complaint before domestic courts
by claiming specific redress; in other words, whether a remedy exists
that could answer his complaints by providing a direct and speedy, and
not merely indirect, protection of the rights guaranteed in Article 6
para. 1 (Art. 6-1) of the Convention (see Eur. Court HR, Deweer v.
Belgium judgment of 27 February 1980, Series A no. 35, p. 16, para.
29). For a remedy to be effective, it must be accessible, that is, the
person concerned must be able to institute the relevant proceedings
himself or herself (see, mutatis mutandis, No. 12604/86, Dec. 10.7.91,
D.R. 70, p. 125).
As regards the administrative remedy referred to by the
Government, i.e. the complaint under Section 17 para. 1 of the State
Administration of Courts Act, the Commission observes that the
applicant pursued this remedy in substance. In fact, the applicant's
complaints about delays in the proceedings concerning his case were
transmitted to the President of the Cadca District Court. However, the
latter refused to deal with these complaints as under Slovak law the
applicant lacked capacity to introduce them.
It is true that the applicant could have requested the public
authority exercising the function as his guardian to lodge such a
complaint on his behalf. However, the use of such a remedy depended
on the decision of that authority. In the Commission's view, such a
remedy does not meet the requirement of accessibility within the
meaning of the Convention organs' case-law.
As regards the petition provided for in Article 130 para. 3 of
the Constitution, the Commission recalls that that remedy can give rise
to a declaration of excessive length of proceedings, but it is not
capable of accelerating the proceedings which are still pending (see
No. 25006/94, Dec. 4.3.97, D.R. 88-A, pp. 34 and 39).
In these circumstances, the Commission considers that the
application cannot be declared inadmissible for non-exhaustion of
domestic remedies.
As regards the merits, the Government submit that they cannot
comment on the length of the proceedings as the proceedings are still
pending.
The applicant submits, in substance, that the proceedings have
lasted unreasonably long.
The Commission notes that the relevant period did not begin as
from the institution of the proceedings in February 1987, but only as
from 18 March 1992 when the former Czech and Slovak Federal Republic
ratified the Convention and recognised the right of individual
application. However, in assessing the reasonableness of the time that
elapsed after 18 March 1992, account must be taken of the state of the
proceedings at that time (see Eur. Court HR, Baggetta v. Italy judgment
of 25 June 1978, Series A no. 119, p. 32, para. 20). The proceedings
are still pending before the District Court. The period to be
considered thus amounts to five years and almost six months.
The Commission considers, in the light of the criteria
established by the case-law of the Convention organs on the question
of "reasonable time", and having regard to all the information in its
possession, that this complaint raises issues of fact and law requiring
an examination of the merits.
For these reasons, the Commission,
by a majority,
DECLARES ADMISSIBLE, without prejudging the merits, the
applicant's complaints that he was examined against his will in
a mental hospital and that the proceedings concerning his case
have lasted unreasonably long;
unanimously,
DECLARES INADMISSIBLE the remainder of the application.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy