SILC v. SLOVENIA

THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 45936/99
by Iztok Dario ŠILC
against Slovenia

The European Court of Human Rights (Third Section), sitting on 13 February 2003 as a Chamber composed of

MrI. Cabral Barreto, President,
MrL. Caflisch,

MrP. Kūris,
MrR. Türmen,
MrB. Zupančič,

MrJ. Hedigan,
MrsH.S. Greve, judges,

and Mr V. Berger, Section Registrar,

Having regard to the above application lodged on 2 November 1998,

Having deliberated, decides as follows:

THE FACTS

The applicant, Iztok Dario Šilc, is a Slovenian national, who was born in 1964 and resides in Ljubljana.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Proceedings concerning the enrolment of the applicant as a member of the Bar Association

The applicant holds a degree in law and has passed the national bar exam (pravosodni izpit).

On 15 December 1997 he filed a request with the Bar Association (Odvetniška zbornica) of Slovenia to become a licensed attorney. The Bar Association subsequently asked the applicant to provide further details of his request, which he did on 21 May 1998.

As the applicant did not receive a response from the Bar Association, he filed an administrative action before the Administrative Court on 6 July 1998.

On 17 December 1998 the Bar Association rejected his request, on the ground that the Regional Bar Assembly (Območni zbor odvetnikov) of Ljubljana had decided on 23 September 1998 that the applicant’s past behaviour did not show him as being worthy of the trust required of an attorney. The applicant extended the scope of his administrative action.

In 1998 the applicant also introduced a constitutional initiative (ustavna pobuda), alleging, inter alia, that the Statute of the Bar Association of Slovenia was not in conformity with the Slovenian Constitution.

On 30 June 1999 the Administrative Court quashed the decision of the Bar Association; the latter subsequently appealed the decision.

On 17 August 2000 the applicant lodged a constitutional appeal, alleging a breach of his right to the due process of law.

On 7 February 2001, the Supreme Court upheld the Administrative Court’s decision of 30 June 1999 striking down that of the Bar Association. The Supreme Court ordered that a fresh decision be handed down by the Bar Association. However, the latter did not comply with the Supreme Court’s ruling within the one-month time limit prescribed by law. The applicant also twice sought a new decision from the Bar Association.

On 27 March 2001 the Constitutional Court rejected the applicant’s appeal concerning the length of the proceedings on the grounds that in the meantime the proceedings before the Supreme Court had terminated and that, not having brought an action for damages, he had failed to exhaust domestic legal remedies concerning the length of these proceedings.

With regard to the applicant’s constitutional initiative lodged in 1998, the Constitutional Court ruled on 24 May 2001 that the provisions of the Statute governing the elaboration of the local Bar Assembly’s views on the suitability of candidates were indeed in breach of the constitutional provisions. In his further submissions, the applicant complained that the required amendments of the Statute were not published in the Official Journal within the six-month period after the publication of the Constitutional Court’s decision on 13 June 2001. However, he took no action in this respect.

On 19 September 2001 the applicant brought an administrative action before the Administrative Court in which he complained of the lack of any response from the Bar Association.

On 6 November 2001 the Bar Association again rejected the applicant’s request to become a licensed attorney. The applicant extended the scope of his administrative action.

The proceedings are currently pending before the Administrative Court.

2. Access to the child

The applicant’s daughter was born out of wedlock in 1989 and is living in Maribor with her mother.

In 1990 the applicant applied for the right of access to his daughter. The Ljubljana Social Work Centre issued a decision regulating his contacts with the child in each of the three years 1993, 1995 and 1996. The applicant appealed against some of the decisions. On 20 September 1994, given the lack of any reaction on the part of the administrative authorities, he filed an administrative action with the Supreme Court. In 1994 he also instituted proceedings before the Constitutional Court to complain about the length of the proceedings before the Supreme Court and about the breach of his right to family life.

On 12 April 1996, the Ljubljana Social Work Centre again granted the applicant the right of access to his daughter, while authorising her to stay with him during three weekends per year and a week during the annual summer holidays. The decision became enforceable on 24 July 1996.

The applicant has nevertheless not been able to avail himself of the right to spend these fixed periods with his daughter since 1996.

In 1996, the applicant filed a request with the Maribor Administrative Unit for the enforcement of his right of access to his daughter. An order was issued on 22 October 1996.

On 30 June, 2 July and 20 August 1996, acting on his own behalf and that of his daughter, the applicant filed new applications with the Ljubljana Social Work Centre concerning contacts with his child. The applicant requested that his daughter stay with him during twelve weekends per year and for one week of the annual summer holidays. Shortly thereafter, the Ljubljana Social Work Centre rejected the applicant’s requests on the ground that it was not competent to take a further decision on contacts that had already been fixed by it on 12 April 1996.

On appeal, the Ministry of Labour, Family and Social Affairs handed down two decisions on 23 September and 4 October 1996, quashing those of the Ljubljana Social Work Centre, and sent the case back to that Centre, pointing out what the applicant sought was an extension of the frequency of contacts already granted and that the matter thus fell within the jurisdiction of the Social Work Centre.

On 22 January 1997 the Constitutional Court dismissed the applicant’s appeal, lodged in 1994 and renewed since on several occasions. The Constitutional Court decided, on the one hand, that the applicant had failed to comply with procedural requirements and, on the other hand, that no special circumstances justified the consideration of the application before the exhaustion of domestic legal remedies.

In 1997, the applicant filed a further request with the Maribor Administrative Unit for the enforcement of his right of access to his daughter.

On 4 February 1997, because the mother had failed to respect the obligations placed on her by the decision of 12 April 1996, the Maribor Administrative Unit ordered her to respect visiting rights on pain of an administrative fine of SIT 50 000 for each subsequent failure to organise the applicant’s contacts with their child. However, on 11 February 1997 the Administrative Unit informed the applicant that further to his letter of 9 December 1996 they would not issue a new enforcement order.

On 11 June 1997, the Ljubljana Social Work Centre rejected the applicant’s applications for more contacts with his daughter as this was not in her interest. It also rejected the application lodged by the applicant on his daughter’s behalf on the ground that he was not her legal representative. The applicant appealed against the decision.

On 10 September 1997, further to the decision of 4 February 1997, the Maribor Administrative Unit imposed on the mother a fine in the amount of SIT 50 000.

On 9 October 1997 the Ministry of Labour, Family and Social Affairs upheld the decision of the Social Work Centre of 11 June 1997 concerning the applicant’s request for more contacts with the child. The applicant then instituted proceedings before the Administrative Court on his own behalf and that of his daughter.

In October 1997, the applicant withdrew his request for enforcement. The Maribor Administrative Unit therefore terminated the enforcement proceedings on 22 October 1997.

In 1997, acting on his own and on his daughter’s behalf, the applicant lodged a constitutional appeal against the authorities. He challenged the Supreme Court’s decision handed down in a separate set of proceedings on 28 August 1997, where he claimed moral damages for the suffering which he had endured as a consequence of a violation of his rights to have contacts with his daughter.

The applicant also sought assistance from the Social Work Centre of Maribor, the Ministry of Interior, the Slovenian Parliament and the Ombudsman. These four institutions, acting in accordance with their jurisdiction, were not able to provide any substantial help to the applicant.

On 20 May 1999, declaring that no contacts provided for by the Social Work Centre’s decision of 12 April 1996 had taken place, the applicant filed a further request for enforcement of that decision with the Maribor Administrative Unit.

On 6 July 1999 the Maribor Social Work Centre suggested that the Administrative Unit should organise a meeting between the applicant and his daughter’s mother. If that proved impossible, the Centre said that other persons, e.g. the police, should execute the enforcement order.

On the applicant’s request for the enforcement, the Ministry for Interior informed him on 30 July 1999 that a hearing before the Maribor Administrative Unit was scheduled for 11 August 1999 in the framework of the enforcement proceedings.

During the hearing, the mother of the applicant’s daughter stated that the child refused to spend time alone with her father in Ljubljana and that he was aware of that. She said that she had been encouraging her daughter to have contacts with her father but that the child was not used to him because they had practically never lived together. In order to overcome that alienation, she had occasionally paid a visit to him accompanied by the child with the applicant’s approval. She had also allowed the applicant to have contacts with his daughter every time he came to Maribor. She said that she was not preventing the contacts but could not force her child to stay in Ljubljana if she did not want to, because the environment was foreign to the child. She also stated that the applicant was aware of the fact that the daughter did not want to spend longer periods with him and that, according to the child, he accepted that.

On 19 August 1999 the Maribor Administrative Unit issued an enforcement order instructing the mother to prepare the child for contacts and to allow them to take place, in accordance with the decision of 12 April 1996. The first contact between the daughter and the father was to be organised during the first weekend of September 1999. Should the mother fail to respect her obligations within the 10 days following the notification of the decision, the applicant should inform the authorities, in which case, an enforcement order would be issued, imposing on the mother a fine in the amount of SIT 20 000.

There is no evidence in the file to show whether the contacts took place in September 1999. However, it follows from a letter sent by the Maribor Administrative Unit to the Maribor Social Work Centre that the Administrative Unit had terminated the enforcement proceedings on 22 October 1999.

On 24 March 2000 the Constitutional Court rejected the appeal claiming moral damages filed in the course of 1997 on the grounds that it was not a fourth instance body and that the applicant could not legally represent his daughter.

On 14 March 2001 the Administrative Court rejected the applicant’s action against the decision of 9 October 1997, on the grounds, inter alia, that the applicant was not the legal representative of his daughter. On 2 April 2001 the applicant lodged an appeal on points of law with the Supreme Court. The proceedings are still pending.

On 22 June 2001 the applicant lodged a constitutional initiative (ustavna pobuda), challenging the provisions of the Law on Marriage and Family Relations regarding the contacts between children and divorced parents.

3.  Criminal proceedings

The proceedings before the state prosecutor’s office of Ljubljana allegedly commenced on 15 May 1995, but there is no document in the file to that effect.

In 1997, the applicant was charged with having impersonated the public prosecutor on the telephone on two occasions in 1995. According to the applicant, the indictment was never served on him.

On 6 January 1999 the District Court in Ljubljana convicted the applicant of unlawfully impersonating a public or military official and put him on probation for 5 months.

Upon appeal, the Higher Court on 4 May 1999 quashed the judgment and dismissed the charges against the applicant as being time-barred.

B.  Relevant domestic law

1.  The 1999 Administrative General Procedure Act

Section 222 § 1 of the 1999 Administrative General Procedure Act (Zakon o splošnem upravnem postopku, Official Journal no. 80/99) provides that in simple matters, where there is no need to undertake a separate investigation, an administrative body is obliged to give a decision within one month of the submission of an application. In all other cases the administrative body is obliged to give a decision within two months.

Section 222 § 4 entitles a party whose application has not been decided upon within the time limits set out in § 1 to lodge an appeal as if the application had been denied.

2.  The 1997 Administrative Disputes Act

Section 26 of the 1997 Administrative Disputes Act (Zakon o upravnem sporu, Official Journal no. 50/97) entitles a party having lodged an application with an administrative body to institute administrative proceedings before the Administrative Court (administrative action) in the following cases:

“ ...

2. If the appellate body does not rule on the applicant’s appeal against the first instance-decision within two months or within a shorter period if any, provided by law, and fails to make an award upon a subsequent request within a further period of seven days, the applicant may then bring an administrative action, as if his request had been dismissed.

3. The applicant may also act in accordance with the preceding paragraph when an administrative body of the first instance fails to give a decision from which no appeal lies.

4. If in matters where a right to an appeal exists a body of the first instance fails to give a decision upon the individual’s application within two months or within a shorter period, if any, provided by law, the individual may then submit his application to the appellate administrative body. Should the latter find against him, the individual may then bring an administrative action. The individual may also bring an administrative action under the conditions set out in paragraph 2.”

3.  The Constitution of the Republic of Slovenia

Article 160 of the Constitution of the Republic of Slovenia (Ustava Republike Slovenije) reads, so far as it is relevant:

“The Constitutional Court shall hear:

...on constitutional appeals of violation of human rights and fundamental freedoms by specific acts; ...

Unless otherwise provided by law, the Constitutional Court shall hear a constitutional appeal only if legal remedies have been exhausted. The Constitutional Court shall decide whether a constitutional appeal is admissible for adjudication on the basis of statutory criteria and procedures.”

Article 162

“Proceedings before the Constitutional Court shall be regulated by law.

The law shall determine who may require proceedings to be instituted before the Constitutional Court. Anyone who demonstrates a legal interest may request the institution of proceedings before the Constitutional Court.

The Constitutional Court shall decide on a majority vote of all its judges unless otherwise provided for in individual cases by the Constitution or by statute. The Constitutional Court may decide whether to institute proceedings following a constitutional appeal with such lesser number of judges as may be provided by statute.”

4.  The Constitutional Court Act

The Constitutional Court Act (Zakon o Ustavnem sodišču) governs the composition and functioning of the Constitutional Court.

Section 1

“The Constitutional Court is the highest body of judicial authority for the protection of constitutionality, legality, human rights and basic freedoms...

Decisions of the Constitutional Court are legally binding.”

Sections 50 to 60 of that Act concern constitutional appeals by individuals.

Section 50

“Any one who believes that his or her human rights and basic freedoms have been violated by a particular act of a state body, local community body or statutory authority may lodge a constitutional appeal with the Constitutional Court, subject to compliance with the conditions laid down by this Act. ...”

Section 51

“A constitutional appeal may be lodged only after all legal remedies have been exhausted.

Before all special legal remedies have been exhausted, the Constitutional Court may exceptionally hear a constitutional appeal if a violation is probable and if certain irreparable consequences for the appellant would occur as a result of the implementation of a particular act.”

COMPLAINTS

1.  Invoking Article 6 § 1 of the Convention, the applicant complains of the length of the proceedings concerning his request to become a licensed attorney. He also complains of a violation of his right to a fair trial under Article 6 § 1, contending that the Bar Association acted unlawfully and that it decided on the basis of an unconstitutional statute. He further complains that he had not had an effective remedy at his disposal, as required by Article 13 of the Convention, to speed up the pending proceedings.

2.  The applicant also complains that the authorities have failed to enforce a binding decision issued on 12 April 1996 concerning his right of access to his child and hence breached his right to family life according to Article 8 of the Convention.

He further complains of a violation of his right to a fair trial and of the length of the proceedings under Article 6 as well as of a violation of his right to an effective remedy under Article 13. He considers that three weekends per year and a week of summer holidays are not sufficient to develop contacts between a parent and a child. In this respect, he relies on Article 8 of the Convention and on Article 5 of Protocol No. 7.

3.  The applicant also complains of the length of criminal proceedings. He alleges a violation of Article 6 § 1.

Furthermore, he complains of a violation of his right to a fair trial under Article 6 § 1, alleging that the public prosecutor, who had drawn up the indictment, subsequently became a judge in the same case. Moreover, he claims that the indictment was never served on him. He further contends that the first instance judgment was based on circumstantial evidence and that the procedure followed for the service of the court decisions was in breach of the statutes.

According to the applicant, the absence of any means of speeding up the procedure also constitutes a breach of his right to an effective remedy under Article 13.

THE LAW

1.  The applicant complains under Article 6 § 1 of the Convention about the length of the proceedings concerning his request to become a licensed attorney. He also complains of a violation of his right to a fair trial under Article 6 § 1 and of his right to an effective remedy guaranteed by Article 13 of the Convention.

Article 6 § 1 states insofar as relevant:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal...”

Article 13 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.”

a) The Court considers, on the basis of the case file, that it cannot determine the admissibility of the complaints relating to the length of the proceedings under Article 6 § 1 and the effectiveness of remedies available under Slovenian law under Article 13. It is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of these complaints to the respondent Government.

b) As regards the complaint concerning the fairness of the proceedings under Article 6 § 1, the Court notes that the proceedings are still pending and that this part of the application is premature. The Court finds that domestic remedies have not been exhausted as required by Article 35 § 1 of the Convention. This part of application should therefore be rejected under Article 35 § 4 of the Convention.

2.  The applicant complains of a breach of his right to family life under Article 8 of the Convention in that the authorities have failed to enforce a binding decision issued on 12 April 1996 concerning his right of access to his child.

He further complains of a breach of Article 6 of the Convention (right to a fair trial, length of the proceedings) and Article 13 of the Convention in relation to those proceedings. He considers that three weekends per year and a week of summer holidays are not sufficient to develop contacts between a divorced parent and his child. He relies on Article 8 of the Convention and Article 5 of Protocol No. 7.

Article 8 of the Convention states, insofar as relevant:

“1.  Everyone has the right to respect for his ... 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.”

Article 5 of Protocol No. 7 reads:

“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.”

a)  The Court recalls the applicant’s previous application, relating to these issues up to 1998, which the European Commission of Human Rights declared inadmissible (application no. 35274/97, dec. of 4.3.98, unpublished).

Since 1998, the applicant has made one attempt to secure the enforcement of his right of access granted to him by the decision handed down on 12 April 1996 by the Ljubljana Social Work Centre.

In the Court’s view, the social authorities - the Maribor Administrative Unit - showed sufficient diligence in responding promptly to the applicant’s request for enforcement lodged on 20 May 1999. Following a hearing, an enforcement order was issued on 19 August 1999 and the proceedings before the Maribor Administrative Unit terminated on 22 October 1999. It was open to the applicant to pursue his complaints under Article 8 by way of a constitutional appeal in the last instance, but he did not avail himself of this opportunity. He could also have filed a new request for an enforcement order, but there is nothing in the file attesting that he did so.

It also transpires from the documents that the child who is now 13 years old refuses to spend prescribed weekends alone with her father and that there were occasional contacts between the applicant and his daughter outside these periods.

In these circumstances, the Court concludes that the applicant has no grounds to complain about the State’s failure to enforce his right of access to his child under Article 8. The Court therefore considers that this part of the application is manifestly-ill founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4 of the Convention.

Having regard to the fact that the applicant failed to avail himself of the legal avenues available to him under Slovenian law as well as to the sufficient diligence of the social authorities, the Court finds also that he has no ground for complaint about the effectiveness of the remedies at his disposal under Article 13 and the length of the proceedings under Article 6 § 1. Therefore, this part of the application is also manifestly-ill founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

b)  The applicant further complains under Articles 8 of the Convention and 5 of Protocol No. 7 that three weekends per year and a week of the annual summer holidays are not enough for him to participate actively in his daughter’s upbringing.

Insofar as the applicant raises complaints under Article 8 of the Convention, the Court notes to begin with that the complaints regarding the decision of the Ljubljana Social Work Centre of 12 April 1996 were dealt with by the Commission in its decision of 4 March 1998 (application no. 35274/97) cited above. It follows that the claims made under Articles 8 of the Convention and 5 of Protocol No. 7 concerning the frequency of contacts between the applicant and his daughter up to 1998 are substantially the same as those dealt with by the European Commission of Human Rights in the above-mentioned decision.

As regards the applicant’s complaints under Articles 8 of the Convention and 5 of Protocol No. 7 concerning his request made on 30 June 1996 for increased contact with his daughter, the Court notes that the consequent proceedings are still pending before the Supreme Court. It considers, therefore, that the complaints relating to those proceedings are premature, since the domestic remedies have not been exhausted as required by Article 35 § 1 of the Convention. This part of the application must therefore be rejected in accordance with Article 35 § 4.

3.  Finally, the applicant complains under Article 6 § 1 of the Convention about the length of criminal proceedings. He contends that the proceedings before the state prosecutor’s office commenced on 15 January 1995. However, he was charged with having unlawfully impersonated a public prosecutor only in the course of 1997 and the proceedings were terminated by the Higher Court’s judgment on 4 May 1999. The applicant also complains of a violation of his right to a fair trial under Article 6 § 1 and of his right to an effective remedy under Article 13.

a)  Insofar as the applicant complains under Article 6 § 1 about the length of the criminal proceedings, the Court notes that, according to his submissions, the proceedings commenced in 1995. The public prosecutor did not bring charges against the applicant until some time in 1997. There is nothing in the file to show that the applicant’s situation was substantially affected beforehand. The proceedings ended on 4 May 1999 when the Higher Court quashed the judgment.

The Court finds that after the charges were brought against the applicant the maximum possible duration of the proceedings before the Ljubljana District Court and Higher Court was two years and four months. Taking into account what was at stake for the applicant, the Court considers that this period does not exceed the requirement of a reasonable time within the meaning of Article 6 § 1.

The complaint is therefore manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must accordingly be rejected, pursuant to Article 35 § 4.

b)  Insofar as the applicant complains under Article 6 § 1 that he had been deprived of a fair trial, and under Article 13 that he had not an effective remedy at his disposal, the Court notes that the criminal proceedings instituted against him were terminated by the Higher Court’s judgment on 4 May 1999, dismissing the charges against the applicant as being time-barred.

In these circumstances, the Court finds that the applicant can no longer claim to be a victim of the alleged violations of the rights protected by Articles 6 § 1 and 13 of the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It must therefore be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints under Article 6 § 1 of the Convention about the length of proceedings concerning his request for enrolment as a member of the Bar Association, and under Article 13 of the Convention as to the effectivness of the remedies available to him;

Declares the remainder of the application inadmissible.

Vincent BergerIreneu Cabral Barreto
RegistrarPresident

Full & Egal Universal Law Academy