AS TO THE ADMISSIBILITY OF
Application No. 28407/95
by Dusan OLLE
against the Slovak Republic
The European Commission of Human Rights (Second Chamber) sitting
in private on 23 January 1996, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
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 May 1995 by
Mr. Dusan OLLE against the Slovak Republic and registered on
1 September 1995 under file No. 28407/95;
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 Slovak national born in 1953. He is disabled
and resides in Bratislava.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 11 June 1992 the applicant's marriage, out of which a son was
born in 1985, was dissolved by decision of the Bratislava 3 District
Court (Obvodny súd). The court awarded custody of the child to the
mother. Under the visiting arrangements ordered by the court the
applicant was entitled to meet his son for 10 hours every fortnight.
On 14 October 1993 the Bratislava 3 District Court extended the
visiting arrangements at the applicant's request. The applicant was
allowed to meet his son from 4 to 6 p.m. every second Wednesday and
between Saturday 8 a.m. and Sunday 5 p.m. every fortnight. In
addition, he was permitted to stay with the son for part of the summer
holidays and also for part of the spring, Christmas and Easter
holidays.
On 14 March 1994 the applicant lodged a claim for further
extension of his visiting rights. He requested, inter alia, that he
should be entitled to meet his son as from Friday 5 p.m. (instead of
Saturday morning) every fortnight and for 30 days (instead of 15 days)
during the summer holidays.
The applicant maintained that his son does not prepare for school
on Friday afternoons and declared that he was ready to help the son
with home-work if necessary. He submitted evidence that he was able
to bear the costs of longer stay of his son with him in the summer.
The applicant also asked for reduction of the maintenance he was
required to pay.
The claim was dismissed by the Bratislava 3 District Court on
13 May 1994. Although pursuant to Section 28 of the Family Act (Zákon
o rodine) the court could modify the existing parental rights, it found
no new circumstances justifying it. In the court's view, the
applicant's visiting rights granted on 14 October 1993 were sufficient
and appropriate for both the son and the father. The court found no
reason to modify the maintenance.
In particular, the court noted that the regular contacts had
strengthened the child's emotional links to his father. The son
suffered from minor cerebral dysfunction which influenced his behaviour
at school. He stayed at school until 4 p.m. except on Fridays when his
mother, who had arranged working hours for that purpose, fetched him
at noon. In the afternoons the son usually did home-work and played
with friends.
Furthermore, the court held that it was impossible to tell how
the son's two weeks' stay during the summer holidays (which was to take
place for the first time) would turn out and what would be its
financial impact on the applicant.
The applicant was requested by the District Court to submit a
psychiatrist's certificate. It appears that the mother did not make
any submission to the court as regards the applicant's request for
extension of his visiting rights. The social authority left the
decision with the court.
On 22 August 1994 the applicant lodged an appeal with the
Bratislava City Court (Mestsky súd). He showed that he was able to
meet the expense of having his son stay with him during the summer
holidays. He further claimed that the first instance court had no
reason to express doubts as to the way in which the stay would take
place since the son had stayed with him for six days during the
Christmas holidays.
The applicant also alleged that it was more appropriate for the
son to come to him every fortnight on Friday afternoons since on
Saturdays they participated in organised walking-tours which started
early in the morning and which were in the interest of the child.
On 9 November 1994 the Bratislava City Court extended the
applicant's right to see his son during the Easter holidays by one day
and upheld the remainder of the first instance decision. It shared the
opinion of the first instance court that the existing right of access
was sufficient for maintaining good contacts between the applicant and
his son, and that it was proportionate to the age and health of the
child. The court underlined that the principal interest of the
applicant's son was to meet school obligations.
COMPLAINTS
The applicant alleges a violation of Article 8 of the Convention
in that the courts interfered with his private and family life and in
that his right of access is restricted more than necessary. Under
Article 5 of Protocol No. 7 the applicant complains that the
restriction of his right to access benefits his former wife rather than
his son.
The applicant complains under Article 3 of the Convention that
he was exposed to degrading treatment in that the courts refused to
extend his visiting rights and in that he was requested to submit a
psychiatric expert's opinion in the course of the proceedings.
The applicant further complains that he did not have an effective
remedy and that he has been discriminated against as regards the
contacts with his son. In his view his parental rights are restricted
to a greater extent than it is necessary in the interests of the son.
He alleges a violation of Articles 13, 14 and 17 of the Convention in
this respect.
Finally, the applicant also alleges a violation of several
Articles of the Convention on the Rights of the Child.
THE LAW
1. The applicant complains about the refusal to extend the right of
access to his son. He alleges a violation of Article 8 (Art. 8) of the
Convention and of Article 5 of Protocol No. 7 (P7-5) which provide, so
far as relevant, as follows:
Article 8 (Art. 8) of the Convention
"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 ... for the
protection of the rights and freedoms of others."
Protocol No. 7, Article 5 (P7-5)
"Spouses shall enjoy equality of rights and responsibilities of
a private law character between them, and in their relations with
their children, as to marriage, during marriage and in the event
of its dissolution. This Article shall not prevent States from
taking such measures as are necessary in the interests of the
children."
Assuming that the decisions complained of constituted an
interference with the applicant's family life, the Commission has to
examine whether this interference was compatible with the requirements
of Article 8 para. 2 (Art. 8-2) of the Convention.
The courts found no new circumstances justifying a further
extension of the applicant's access to his son as required by Section
28 of the Family Act. In their view, the existing visiting rights were
proportionate to the age and health of the child. The decisions at
issue were, therefore, in accordance with Slovak law and pursued a
legitimate aim, namely the son's well-being.
The courts at both instances carefully considered the applicant's
request for his parental rights to be extended. They found, for the
reasons set out in the judgments, that the existing visiting
arrangements were appropriate for both the son and his father and
sufficient for maintaining good contacts between them.
The Commission further recalls that the Bratislava 3 District
Court's judgment of 14 October 1993 allowed the applicant to meet his
son from 4 to 6 p.m. every second Wednesday and between Saturday 8 a.m.
and Sunday 5 p.m. every fortnight. He was also permitted to stay with
the son for part of the summer holidays and also for part of the
spring, Christmas and Easter holidays. In addition, in the course of
the proceedings at issue the Bratislava City Court extended the
applicant's right to see his son during the Easter holidays by one day.
In these circumstances, the Commission considers that insofar as
there was an interference with the applicant's right under Article 8
(Art. 8) of the Convention, that interference was not disproportionate.
For similar reasons the Commission considers that the decisions
at issue did not violate Article 5 of Protocol No. 7 (P7-5).
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 further alleges a violation of Article 3
(Art. 3) of the Convention.
The Commission has found above that the decisions complained of
were compatible with the requirements of Article 8 (Art. 8) of the
Convention and of Article 5 of Protocol No. 7 (P7-5). These decisions
cannot be regarded as constituting inhuman or degrading treatment under
Article 3 (Art. 3) of the Convention (cf., mutatis mutandis, Hendriks
v. the Netherlands, Comm. Report 8.3.82, D.R. 29 p. 20, para. 130).
Nor can the request that the applicant should submit a certificate on
his mental status be considered to violate Article 3 (Art. 3) 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.
3. The applicant also alleges a violation of Article 13
(Art. 13) of the Convention. However, the guarantees of Article 13
apply only to a grievance which can be regarded as "arguable" (cf. Eur.
Court H.R., Powell and Rayner judgment of 21 February 1990, Series A
no. 172, p. 14, para. 31, with further references). In the present
case the Commission has rejected the substantive claims as disclosing
no appearance of a violation of the Convention or of its Protocols.
Accordingly, they cannot be regarded as "arguable".
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.
4. The applicant further alleges a violation of Articles 14 and 17
(Art. 14, 17) of the Convention.
The Commission has examined these complaints but finds that
insofar as they have been substantiated and are within its competence,
they do not disclose any appearance of a violation of the rights and
freedoms set out in 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.
5. Finally, the applicant alleges a violation of several Articles
of the Convention on the Rights of the Child. However, pursuant to
Article 25 (Art. 25) of the Convention the Commission may only receive
complaints of a violation of the rights set forth in the European
Convention on Human Rights.
It follows that this part of the application is incompatible
ratione materiae with the Convention within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
Full & Egal Universal Law Academy