AS TO THE ADMISSIBILITY OF
Application No. 33466/96
by Jozef SINKO
against the Slovak Republic
The European Commission of Human Rights (Second Chamber) sitting
in private on 20 May 1998, the following members being present:
MM J.-C. GEUS, President
M.A. NOWICKI
G. JÖRUNDSSON
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
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 10 September 1996
by Jozef SINKO against the Slovak Republic and registered on
16 October 1996 under file No. 33466/96;
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 1951. He is a fireman
and resides in Trnava.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
A. The particular circumstances of the case
In September 1993 a weekly published a photograph from a meeting
of the inhabitants of a quarter in Trnava. The photograph showed a
detailed picture of the applicant and of several other persons standing
behind him.
Subsequently the applicant received a clipping with the aforesaid
photograph. It was accompanied by a handwritten threat that his throat
would be cut because he had been opposed, at the aforesaid meeting,
to accommodation of persons of Roma origin in a certain part of Trnava.
The message was signed "Gypsies from Trnava".
The applicant complained to the police, but the authors of the
threat could not be found.
On 17 October 1993 the applicant informed the publisher of the
weekly that the publication of his photograph had resulted in threats
to his life and proposed that 5,000 Slovak crowns be paid to him by way
of settlement.
On 17 December 1993 the applicant sued the publisher for
interfering with his right to protection of his personality before the
Bratislava Regional Court (Krajsky súd). He alleged that the
publication of his photograph had caused serious difficulties to him
and his family and claimed a compensation of 100,000 Slovak crowns.
The applicant further stated that his family's budget bordered the
existential minimum and requested that he be exempted from court fees.
On 11 October 1994 the Bratislava Regional Court requested the
applicant to pay, within five days, court fees of 6,000 Slovak crowns
pursuant to item 7 (d) of the Court Fees Rates (see "Relevant domestic
law and practice" below).
On 14 October 1994 the applicant replied that he was not able to
pay the requested sum within the five days' time-limit. He submitted
details of his personal situation and stated that he could pay the fees
only by means of a loan or by monthly instalments.
On 28 February 1995 the Bratislava Regional Court discontinued
the proceedings on the ground that the applicant had neither paid the
fees, nor submitted documents justifying his exemption from their
payment. The decision was served on the applicant on 13 April 1995.
On 11 April 1995 the applicant supplemented his action by
providing details of the interferences with his private life after the
publication of the photograph.
On 21 April 1995 the applicant appealed against the Regional
Court's decision of 28 February 1995. He alleged that he had requested
an exemption from court fees in his action of 17 December 1993. The
applicant further stated that he was not able to pay the fees as he was
on a long-term sickness leave and that the sickness benefits
constituted, at that time, his only income.
On 16 November 1995 the Supreme Court (Najvyssí súd) quashed the
Regional Court's decision of 28 February 1995 on the ground that the
latter had not examined the applicant's request for exemption from
court fees of 17 December 1993.
On 18 December 1995 the applicant complained to the Ministry of
Justice about delays in the proceedings and about the Regional Court's
decision to discontinue the proceedings. He was informed that his
complaint had been transferred to the president of the Regional Court.
On 29 January 1996 the applicant reiterated his request for
exemption from court fees. He informed the Regional Court that he had
been ill until 30 June 1995, and that in August 1995 he had been
transferred, due to deterioration of his health, to a job with less
remuneration. The applicant further explained that he was in charge
of his wife and that, until 20 July 1995, he had also been in charge
of his son. He stated that he was reimbursing a loan and that he could
not afford to contract another one.
On 17 April 1996 the Bratislava Regional Court dismissed the
applicant's request for exemption from court fees. It established that
in 1995 the applicant's net monthly income had amounted to 6,132 Slovak
crowns and noted that the applicant had not shown that he had been
transferred to a less remunerated job. The court considered, with
reference to the applicant's income and also to his personal situation
and to the personal character of his action, that the applicant was not
entitled to an exemption from court fees.
The Regional Court further expressed its opinion that an
exemption from court fees could be granted, for example, when a
claimant was unemployed or when he or she had no other income apart
from social allowances.
On 22 April 1996 the applicant appealed. He alleged that in the
first half of 1995 he had lived exclusively on sickness benefits
totalling 28,635 crowns and that his net monthly income in 1995, after
deduction of the sickness benefits and social allowances, amounted to
3,230 crowns. The applicant further alleged that the Regional Court
had disregarded the fact that his remuneration had been reduced and
that he was reimbursing a loan. Finally, he complained that there had
been unjustified delays in the proceedings.
On 30 May 1996 the Supreme Court dismissed the applicant's
appeal. It found that the applicant's objections as to the amount of
his net income could not be upheld. The Supreme Court further held,
with reference to the reasons set out in the Regional Court's decision
of 22 April 1996, that the first instance court had decided on the
applicant's request correctly.
On 9 September 1996 the Bratislava Regional Court discontinued
the proceedings concerning the applicant's claim for protection of his
personality as the applicant had failed to pay the court fees.
On 24 February 1997 the Supreme Court upheld the aforesaid
decision with reference to Section 10 para. 2 of the Court Fees Act.
The Supreme Court recalled that the applicant was under an obligation
to pay the fees as from 15 August 1996, i.e. after the service of its
decision to dismiss the applicant's request for exemption from court
fees. The Supreme Court further pointed out that by the time when it
was deciding on the appeal against the first instance decision to
discontinue the proceedings the applicant still had not paid the fees.
B. Relevant domestic law and practice
Code of Civil Procedure
Pursuant to Section 43 para. 2 of the Code of Civil Procedure,
a court shall discontinue the proceedings if it cannot proceed with a
case because of a party's failure, despite a prior warning by the
president of the chamber, to supplement the submissions or eliminate
shortcomings in them.
Under Section 138 para. 1, the president of a court's chamber
may, upon request, exempt a party to the proceedings from all or part
of court fees when it is justified by the situation of the person
concerned unless the claim is of vexatious nature or lacks prospects
of success.
The Court Fees Act
Payment of court fees is governed by Act No. 71/1992 of
17 March 1992 on Court Fees and Fee for Copies of a Person's Criminal
Record (Zákon o súdnych poplatkoch a poplatku za vypis z registra
trestov), as amended.
Pursuant to Section 10 para. 2 of the aforesaid Act, a court
shall discontinue the proceedings if, within a supplementary period set
by it, fees which are due at the moment of lodging an action have not
been paid in full unless it has started dealing with the merits of the
case and provided that the claimant has been informed that in case of
his or her failure to pay the fees the proceedings would be
discontinued.
Section 10 para. 3 provides that when the fees are paid before
the expiry of the time-limit for lodging an appeal against a decision
by which the proceedings were discontinued for a person's failure to
pay them, the first instance court shall quash its decision to
discontinue the proceedings.
The amount of court fees is fixed in the Court Fees Rates annexed
to the Court Fees Act.
Pursuant to item 7 (d) of the Court Fees Rates, fees payable at
the moment of introduction of a claim for protection of one's
personality shall amount to 2,000 Slovak crowns plus four per cent of
the non-pecuniary damages claimed.
Established judicial practice
In accordance with the established judicial practice (Collection
of Judicial Decisions and Opinions of the Supreme Court, No. 22/1971
and No. 14/1976), a court shall not, prior to taking a decision on a
request for exemption from court fees, order a participant to the
proceedings to pay the fees or discontinue the proceedings on the
ground that the fees were not paid.
When deciding on a request for exemption from court fees, courts
shall consider the appraised needs of the claimant with regard to his
or her personal, financial and family situation as well as the nature
of the claim and the amount of the fees to be paid (Collection of the
Supreme Court's opinions, conclusions and analyses of the judicial
practice, volume I, p. 21).
COMPLAINTS
The applicant complains that following the publication of his
photograph he was exposed to various threats and that as a result of
the dismissal of his request for exemption from court fees he was
deprived of adequate protection in this respect. He alleges a
violation of Articles 5, 8 and 10 of the Convention.
The applicant further complains under Article 6 para. 1 of the
Convention that the proceedings concerning his action for protection
of his personality lasted unreasonably long.
Finally, the applicant complains under Article 13 of the
Convention that he had no effective remedies before Slovak authorities
as regards the alleged violation of his rights under the Convention.
THE LAW
1. The applicant complains that he could not have his claim for
protection of his personality examined by a court because he was not
able to pay the court fees, and that the proceedings concerning the
aforesaid claim lasted unreasonably long. The Commission has examined
both complaints under Article 6 para. 1 (Art. 6-1) of the Convention
which provides, in so far as relevant, as follows:
"In the determination of his civil rights and obligations ...
everyone is entitled to a ... hearing within a reasonable time
by a[n] ... tribunal established by law."
...
a) To the extent that the applicant complains about the dismissal
of his request for exemption from court fees, the Commission recalls
that Article 6 para. 1 (Art. 6-1) of the Convention embodies the right
to a court, of which the right of access, that is the right to
institute proceedings before courts in civil matters, constitutes one
aspect.
This right of access, however, is not absolute but may be subject
to limitations since the right by its very nature calls for regulation
by the State. Nonetheless the limitations applied must not restrict
or reduce the access left to the individual in such a way or to such
an extent that the very essence of the right is impaired. Furthermore,
a restriction on this right must pursue a legitimate aim and there must
be a reasonable relationship of proportionality between the means
employed and the aim sought to be achieved (see Eur. Court HR, Philis
v. Greece judgment of 27 August 1991, Series A no. 209, p. 20,
para. 59; Tolstoy-Miloslavsky v. the United Kingdom judgment of
13 July 1995, Series A no. 316, pp. 78-79, para. 59).
The Commission notes that in the present case the court fees
imposed on the applicant amounted to 6,000 Slovak crowns. Their amount
was determined pursuant to item 7 (d) of the Court Fees Rates,
according to which the court fees payable at the moment of introduction
of a claim for protection of one's personality shall amount to 2,000
Slovak crowns plus four per cent of the non-pecuniary damages claimed.
The amount the applicant was invited to pay does not appear, as
such, to be excessive. However, since the applicant alleges that he
could not pay it, the Commission must examine whether the imposition
of the fees in question was compatible with the applicant's right to
access to a court.
The Commission recalls that the Regional Court established that
the applicant's net monthly income in 1995 had amounted to 6,132 Slovak
crowns. It found, after having considered the applicant's income, his
personal situation and the personal character of his action, that the
applicant was not entitled to be exempted from court fees. This
decision was subsequently reviewed by the Supreme Court which found no
reason to reach a different conclusion on the applicant's request.
Thus the Slovak courts concluded, on the basis of the information
before them, that the applicant's personal situation was not such that
he could be exempted from the obligation to pay the fees, and there is
nothing before the Commission to show that the domestic courts
exercised their power of appreciation in an arbitrary manner.
The Commission also recalls that in his letter of 14 October 1994
the applicant informed the Regional Court that he could pay the fees
by monthly instalments. In fact, it was open to the applicant to pay
the fees until the final decision to discontinue the proceedings
concerning his action was delivered by the Supreme Court on
24 February 1997. However, by the aforesaid date the applicant had not
made any payment to this effect. Nor has the applicant substantiated
before the Commission his allegation that he was unable, throughout the
time when his case was pending before the Slovak courts, to collect the
sum in question.
In view of the above circumstances, the Commission considers that
the imposition of the fees in question on the applicant neither
impaired the very essence of his right of access to court nor was
disproportionate for the purposes of Article 6 para. 1 (Art. 6-1).
b) The applicant further complains that the proceedings concerning
his claim for protection of his personality lasted unreasonably long.
The Commission recalls that the reasonableness of the length of
proceedings must be assessed in the light of the particular
circumstances of the case and with the help of the following criteria:
the complexity of the case, the conduct of the parties and the conduct
of the authorities dealing with the case (see Eur. Court HR, Vernillo
v. France judgment of 20 February 1991, Series A no. 198, p. 12,
para. 30).
The proceedings in question were instituted on 17 December 1993
and the final decision on the applicant's claim was delivered by the
Supreme Court on 24 February 1997. Thus, the period to be taken into
consideration amounts to three years, two months and seven days.
The Commission notes, in particular, that the Regional Court
started dealing with the case on 11 October 1994, i.e. more than nine
months after the applicant had lodged his action, by inviting the
applicant to pay the fees. On 28 February 1995 the Regional Court
discontinued the proceedings on the ground that the applicant had not
paid the fees. However, on 16 November 1995 the Supreme Court quashed
the decision of 28 February 1995 as the Regional Court had failed to
decide on the applicant's request for exemption from court fees as
required by the established judicial practice. The Regional Court then
examined this request and dismissed it on 17 April 1996. The Supreme
Court upheld this decision on 30 May 1996. Subsequently, the Regional
Court discontinued the proceedings for the applicant's failure to pay
the fees on 9 September 1996, and the Supreme Court upheld this
decision on 24 February 1997.
The Commission has noted that at the initial stage of the
proceedings there were certain delays which were apparently due to the
way in which the Regional Court dealt with the case. Notwithstanding
these delays, the Commission considers, in the light of the aforesaid
criteria established by the case-law and having regard to the
circumstances of the present case, that the length of the proceedings
in question did not exceed the "reasonable time" requirement set out
in Article 6 para. 1 (Art. 6-1) 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.
2. The applicant further complains that following the publication
of his photograph he was exposed to various threats and that Slovak
authorities failed to provide adequate protection to him in this
respect. He alleges a violation of Article 8 (Art. 8) of the
Convention which provides, in so far 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 Commission first notes that there is no question in the
present case of any involvement by the respondent Government in the
contentious publication of the applicant's photograph and the threats
to which the applicant was exposed thereafter.
It is true that in limited circumstances the Convention will
impose a positive obligation on a High Contracting Party to protect the
right to respect for private life (see Eur. Court HR, X and Y v. the
Netherlands judgment of 26 March 1985, Series A no. 91, p. 11,
para. 23).
In this respect, the Commission notes that the applicant had a
possibility of seeking redress before the courts by means of an action
for protection of his personality. He availed himself of this
opportunity but the proceedings were discontinued as the applicant had
failed to pay the court fees as required by the Court Fees Act. The
Commission has found above that the decision to discontinue the
proceedings neither impaired the very essence of the applicant's right
of access to court nor was disproportionate for the purposes of
Article 6 para. 1 (Art. 6-1).
For similar reasons, the Commission considers that in the
particular circumstances of the case the decision to discontinue the
proceedings does not cast doubt on the effectiveness of the remedies
available under Slovak law in providing protection for private life.
Accordingly, the Commission is of the opinion that in the present case
there is no appearance of a failure to respect the applicant's rights
under Article 8 (Art. 8) 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 further complains under Article 13 (Art. 13) of the
Convention that he did not have an effective remedy before the domestic
authorities as regards the alleged violation of his rights under
Articles 6 para. 1 and 8 (Art. 6-1, 8) of the Convention.
However, the guarantees of Article 13 (Art. 13) apply only to a
grievance which can be regarded as "arguable" (see Eur. Court HR,
Powell and Rayner v. the United Kingdom 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.
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 Commission has also examined the applicant's complaints under
Articles 5 and 10 (Art. 5, 10) of the Convention, both taken alone and
in conjunction with Article 13 (Art. 5+13, 10+13), but finds, to the
extent that they have been substantiated and are within its competence,
that 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 manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER J.-C. GEUS
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy