CASE OF LUBINA v. SLOVAKIA
Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings
Nicolas Bratza
4. The applicant was born in 1954 and lives in Bratislava. 5. On 30 December 1997 the applicant’s wife stopped living with the applicant. She moved to her parents’ house together with her and the applicant’s son who was born on 4 July 1995. 6. On 20 March 1998 the applicant sought the determination of his right to meet his son. His wife counter-claimed that the applicant should be prohibited from meeting the boy. 7. On 8 June 1998 the applicant requested the Bratislava III District Court to issue an injunction granting him the right to meet his son every weekend. On 7 July 1998 the District Court dismissed that request. On 29 October 1998 the court of appeal upheld that decision. It noted that the request was premature as no decision had yet been given as regards the custody of the child. 8. On 29 June 1999 the Bratislava III District Court granted a divorce to the applicant and his wife. The latter was given custody of their son and the applicant was obliged to contribute to his maintenance. 9. On 28 July 1999 the applicant, with reference to the above judgment, informed the District Court that he wished to withdraw his action. His former wife withdrew her counter-claim. The Bratislava III District Court therefore discontinued the proceedings on 21 October 1999. 10. In an action filed on 18 January 2000 before the Bratislava III District Court the applicant claimed the right to meet his son. 11. A hearing was held on 4 May 2000. On 24 May 2000 the child’s mother counter-claimed that the applicant should be prohibited from meeting their son on the ground that the applicant drank and had behaved in an aggressive manner. At a hearing held on 15 June 2000 the District Court decided to examine jointly the claims of both parents. 12. On 13 July 2000 neither the child’s mother nor her lawyer appeared before the District Court. The mother did not appear on 17 August 2000 either, and the District Court imposed a procedural fine on her. On 11 September 2000 the police informed the court that they had been unable to serve a document on the applicant’s former wife in person. 13. A hearing was held on 5 October 2000. 14. On 16 October 2000 the Bratislava III District Court appointed an expert and instructed her to submit an opinion. 15. On 3 November 2000 the court requested the applicant to pay an advance on the expert’s fee. The applicant paid the sum on 21 June 2001. 16. On 6 April 2001 the expert asked to be excused from the case as she was ill. 17. On 17 April 2001 the District Court excused the expert. At the same time it appointed a different expert and instructed her to submit an opinion within thirty days. 18. On 2 July 2001 the new expert asked to be excused as she could not assess the case in an impartial manner. 19. On 1 August 2001 another person was instructed to submit an expert opinion. On 12 September 2001 that person informed the court that he no longer worked as a court expert. According to a note of 16 October 2001 drafted by the judge dealing with the case, the person in question was still registered as an expert. 20. On 24 September 2001, in reply to the applicant’s complaint, the president of the Bratislava Regional Court admitted that there had been undue delay in the proceedings between November 2000 and the beginning of April 2001. Otherwise, the judge had dealt with the case in an orderly manner, holding hearings at regular intervals. 21. On 12 November 2001 a fourth expert was appointed. On 22 March 2002 the court urged the expert to submit an opinion. It was submitted on 9 April 2002. 22. On 29 April 2002 the applicant appealed against the decision of 12 April 2002 concerning the expert’s fees. The appeal was submitted to the Regional Court on 15 May 2002. The Regional Court dismissed the appeal on 5 August 2002. 23. At the hearing held on 12 November 2002 the District Court heard the expert. The applicant requested that the expert be excluded from the case on grounds of bias. On 12 December 2002 the District Court requested the expert to comment on the applicant’s request. The expert replied on 31 December 2002. On 27 January 2003 the District Court found that the expert was not biased. The applicant appealed on 17 February 2003. 24. In the meantime, on 15 January 2003 the applicant appealed against the District Court’s decision of 19 December 2002 on the expert’s fees. 25. On 12 February 2003 and on 25 April 2003 the applicant made further written submissions to the District Court. 26. In February 2003 the case was submitted to the Regional Court for a decision on the applicant’s appeals against the above-mentioned procedural decisions. 27. On 25 March 2003 the child’s mother sought an interim measure ordering the applicant to abstain from any contact with their son. She submitted that the applicant had attacked her and the boy on their way to school. 28. On 27 March 2003 the District Court asked the Regional Court to return the file to it so that it could decide on the request for an injunction. 29. On 6 May 2003 the Regional Court returned the file to the District Court after it had upheld the first-instance decisions challenged by the applicant. 30. On 7 May 2003 the District Court asked the expert to answer additional questions. The court dismissed the mother’s request for an injunction. The decision stated that extensive expert evidence was being taken with a view to establishing in a reliable manner whether or not the applicant’s contacts with the child could threaten the latter’s physical and mental health. At that time, it had not yet been established that the injunction which the mother sought to obtain was required to protect the interests of the child. The child’s mother appealed on 20 May 2003. On 28 November 2003 the Regional Court in Bratislava upheld the first-instance decision. It underlined that the mother’s fear of the applicant’s negative impact on the child did not, as such, justify the injunction requested. The court also noted that, because of the mother’s behaviour, the applicant had been unable to participate in the education of his son. 31. On 12 May 2003 the District Court appointed a guardian to represent the child in the injunction proceedings. On the same day the file was sent to the Constitutional Court which dealt with the applicant’s complaint about the length of the proceedings. The file was returned to the District Court on 5 June 2003. 32. On 18 June 2003 an administrative authority submitted observations to the District Court. 33. As indicated above, on 28 November 2003 the court of appeal upheld the decision of 7 May 2003 on the mother’s request for an injunction. The file was returned to the District Court on 14 January 2004. 34. On 6 February 2004 the District Court asked the applicant to explain one of his earlier submissions. The applicant replied on 18 February 2004. Between 24 February 2004 and 16 March 2004 the case was submitted to the court of appeal. The latter found that no request for the exclusion of the judge of the first-instance court had been filed. 35. On 21 April 2004 the District Court found that the expert was not to be excluded. 36. On 21 May 2004 the District Court ordered the assessment of the applicant’s mental health. The expert’s opinion was submitted on 22 November 2004. On 3 February 2005 the opinion was sent to the parties. On the same day the expert who had submitted an opinion on 9 April 2002 was requested to supplement it. On 1 March 2005 that expert informed the court that the child’s mother had refused to co-operate with him. Subsequently, the mother and the child appeared before the expert and he submitted his opinion on 11 May 2005. The opinion was sent to the parties on 17 May 2005. 37. The District Court scheduled a hearing in the case for 30 May 2006. 38. The Court has received no information about any further development in the case. 39. On 7 February 2003 the applicant complained to the Constitutional Court about undue delays in the Bratislava III District Court proceedings. He requested that the Constitutional Court find as follows: “The Bratislava III District Court violated the applicant’s right under Article 48(2) of the Constitution to a hearing without unjustified delay in proceedings 26 P 9/00. [The Constitutional Court] awards the applicant 1.2 million Slovak korunas by way of just satisfaction as well as 120,000 Slovak korunas for costs and expenses.” In the reasons for his complaint the applicant also mentioned Article 8 of the Convention submitting that he had been prevented from meeting his son for more than five years. However, as the applicant did not include this particular complaint in the text of the finding which he requested the Constitutional Court to make, the relevant domestic law prevented the Constitutional Court from expressing its view on that issue (see paragraphs 46-48 below). 40. On 17 September 2003 the Constitutional Court found that the applicant’s right under Article 48(2) of the Constitution had not been violated. 41. The Constitutional Court held, in particular, that the case was complex. The applicant had contributed to the length of the proceedings in that he had repeatedly challenged the expert and the decisions on the expert’s fees, thus prolonging the period for an overall period of nine months. The Constitutional Court also took into account that the applicant had belatedly paid the advance on the expert’s fees. 42. As to the conduct of the District Court, the Constitutional Court held that the judge had displayed due diligence when dealing with the case. The length of the proceedings was substantially due to difficulties in obtaining an expert opinion. However, the fact that the three experts appointed were unable to submit an opinion could not have been foreseen and no unjustified delays could be imputed to the District Court on that account. The fact that the judge had not urged the first expert to submit the opinion after the expiry of the time-limit set could not affect the position. 43. Pursuant to Article 74(1), courts can issue an interim measure when there is a need to regulate the parties’ situation in a temporary manner or where it is feared that the execution of a judicial decision could be jeopardised. 44. Article 75(1) provides that a court shall issue an interim measure upon request. Such a request is not necessary where an interim measure concerns proceedings which courts can start of their own motion. 45. Under Article 81(1) courts can start proceedings even in the absence of a request in matters concerning, inter alia, the care of minors. 46. Section 20(1) of the Constitutional Court Act of 1993 provides that a complaint to the Constitutional Court must indicate, inter alia, the decision which the plaintiff seeks to obtain. Under paragraph 3 of section 20, the Constitutional Court is bound by a plaintiff’s proposal for proceedings to be initiated unless this Act explicitly provides otherwise. 47. Pursuant to section 50(1)(a), a complaint must indicate, in addition to the information mentioned in section 20, the fundamental rights or freedoms the violation of which the plaintiff alleges. 48. The Constitutional Court has declared itself bound, in accordance with section 20(3) of the Constitutional Court Act, by a party’s submission aimed at initiating proceedings before it. The Constitutional Court has expressly stated that the above was particularly relevant as regards the order which parties seek to obtain as it can only decide on matters which a party requests to be determined (see, for example, decisions III. ÚS 166/02 of 6 November 2002 or III. ÚS 65/02 of 9 October 2002).