CASE OF BERKOVA v. SLOVAKIA
Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 8;Violation of Art. 13+6-1;Damage - claim dismissed
David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
4. The applicant was born in 1955 and lives in Poprad. 5. On 14 April 1993 the District Court in Poprad restricted the applicant’s legal capacity in that she was not allowed to act on her own before public authorities. The court relied on the opinion of several experts concluding that the applicant suffered from a mental disorder as a result of paranoid development of her personality. The applicant suffered from the delusion that she was being persecuted and on that ground she had made a considerable number of complaints and other submissions. The applicant’s mother was appointed guardian for the purpose of the proceedings concerning the limitation of the applicant’s legal capacity. 6. On 18 April 1994 the Regional Court in Košice upheld the first-instance judgment, which became final on 26 July 1994. 7. On 1 August 1994 the District Court in Poprad brought proceedings on its own initiative with a view to appointing a guardian for the applicant, whose legal capacity had been restricted by the above decisions. On 12 September 1994 the file was transmitted to the Regional Court in Košice for decision on an objection to the judges of the District Court. 8. On 30 December 1994 the Regional Court excluded the judges of the District Court in Poprad and transferred the case to the District Court in Prešov. The file was returned to the District Court in Poprad on 9 March 1995. The decision was served on the applicant on 20 March 1995. On 6 April 1995 the file was sent to the District Court in Prešov where the case was registered under number P 81/95. 9. On 12 July 1995 and 30 August 1995 the District Court asked the applicant’s husband to inform it about persons who could act as the applicant’s guardian. The mail was returned to the court with the explanation that the addressee was in hospital. On 19 September 1995 the Town Office in Poprad submitted information at the District Court’s request of 30 August 1995. 10. On 29 September 1995 the District Court asked the applicant’s mother whether she was willing to act as her daughter’s guardian. The mother replied in the negative. 11. On 5 October 1995 the court appointed a judicial secretary to act as the applicant’s guardian in the proceedings in issue. 12. On 18 October 1995 the applicant’s brother refused to act as guardian. 13. On 31 October 1995 the Town Office in Poprad informed the District Court that its employees were unable to identify a person willing to act as the applicant’s guardian. On 14 and 16 November 1995 the applicant’s sisters refused to assume that duty. 14. At a hearing held on 4 December 1995 the Poprad Municipality proposed that its employee Mrs Ch. be appointed as the applicant’s guardian. That person stated that the applicant had no confidence in her. The case was adjourned and the court asked the municipality to indicate an employee of the Town Office who would act as the applicant’s guardian. On 18 December 1995 the Poprad Municipality again proposed that Mrs Ch. should be charged with that responsibility. In a letter of 15 January 1996 the applicant replied that she disagreed. 15. On 29 January 1996 Mrs Ch. informed the court that she had been unable to find any person willing to assume the duty in question. The District Court decided that Mrs K., a person who had represented the town of Poprad at the previous hearing, should act as the guardian. Both Mrs K. and the applicant appealed in March 1996. On 1 April 1996 Mrs K.’s appeal was sent to the District Prosecutor’s Office. 16. On 20 June 1996 the Regional Court in Košice quashed the District Court’s decision of 29 January 1996. 17. On 16 July 1996 the first-instance court made five inquiries with a view to finding a suitable person. Those inquiries were unsuccessful. 18. On 5 September 1996 the District Court decided that the Town Office in Poprad should act as the applicant’s guardian. The decision was served on the applicant, after several unsuccessful attempts, on 3 December 1996. On 11 December 1996 the applicant appealed. 19. The file was sent to the Regional Court in Košice on 20 January 1997. On 13 March 1997 it was transmitted to the Regional Court in Prešov, due to a change in the jurisdiction of the courts of appeal. 20. On 21 March 1997 the Regional Court in Prešov quashed the first-instance decision on the ground that the Town Office lacked legal capacity and therefore could not act as the applicant’s guardian. 21. On 6 May 1997 the District Court appointed the Poprad Municipality as the applicant’s guardian in respect of all actions involving the applicant’s relations with public authorities. 22. On 10 July 1997 the applicant appealed. She also challenged the District Court judges. 23. Between 17 July 1997 and 28 August 1997 the file was submitted to the Regional Court in Košice for consultation. 24. On 24 September 1997 the file was submitted to the Regional Court in Prešov for a decision on the applicant’s appeal. The Regional Court returned the file to the first-instance court with the instruction that the District Court judge should first comment on the request for her exclusion and that a mistake in the decision of 6 May 1997 should be rectified. 25. The District Court delivered a rectified decision on 24 October 1997. The court had difficulties in serving the rectified decision on the applicant, who received it on 8 December 1997. 26. On 26 January 1998 the Regional Court in Prešov upheld the decision on the appointment of a guardian and dismissed the applicant’s request for the withdrawal of the first-instance court judge. The decision became final on 14 April 1998. 27. On 21 October 1998 the Poprad Municipality proposed to the Prešov District Court that legal capacity should be restored to the applicant. 28. On 18 January 1999 the District Court appointed an expert with a view to assessing the applicant’s health. On 22 January 1999 it asked a local authority to submit a report on the applicant. 29. On 2 February 1999 the applicant challenged the expert, alleging that drugs had been forcibly administered to her in the hospital department where the expert worked. On 28 April 1999 the District Court appointed a different expert, who was requested to submit an opinion within sixty days. 30. On 16 July 1999 the expert appointed by the court proposed that an expert in psychology should assist him. He also asked for an extension of the time-limit within which the opinion was to be submitted. 31. After they had examined the applicant as an outpatient on 7 and 10 August 1999 the experts submitted an opinion to the District Court on 29 August 1999. It comprised twenty-three pages. According to the opinion, the applicant had been suffering from a chronic disorder resulting in a querulous type of paranoia for many years. She had no critical approach to the disorder and she remained persuaded that her actions were correct. The applicant understood judicial proceedings only within the frame of her mental disorder, in that she remained convinced that courts and other authorities were doing harm to her. The illness was of a lasting character and had developed in a slow and latent manner. It had advanced as compared with 1993, when the applicant’s legal capacity had first been restricted. The experts did not recommend that the applicant be heard in person by a court or that judgments should be served on her, as she was unable to understand the scope of the proceedings and the judicial decisions correctly. 32. On 9 November 1999 the Prešov District Court heard the expert appointed and the representative of the authority acting as the applicant’s guardian. The latter stated that the proposal to restore full legal capacity to the applicant had been submitted as she had appeared well balanced at that time. However, officials of the Poprad Municipality had encountered serious difficulties with the applicant during the subsequent period. The representative confirmed that the applicant had reacted in an inappropriate manner whenever authorities had failed to act in accordance with her wishes. 33. The District Court also heard a guardian whom it had appointed to represent the applicant in the proceedings. The guardian did not propose restoring full legal capacity to the applicant as her health had not improved. 34. Relying on the expert opinion the District Court decided not to hear the applicant. Reference was made to Article 187 § 2 of the Code of Civil Procedure. 35. In its judgment of 9 November 1999 the District Court referred in detail to the applicant’s situation and behaviour. With reference to the experts’ conclusion it held that numerous abusive complaints, submissions and appeals which the applicant had made proved that her personality disorder persisted, resulting in her querulous behaviour. The court therefore decided not to restore full legal capacity to the applicant. 36. As the applicant’s mental disorder was chronic and since it could not be expected that her health would improve, the court decided that the applicant was not to be allowed to make a fresh request for full legal capacity to be restored to her for three years from the date of the judgment. Reference was made to Article 186 § 3 of the Code of Civil Procedure. 37. Following the explicit recommendation of the experts, the District Court decided not to serve the judgment on the applicant. It became final on 11 December 1999. 38. On 5 December 2000 the General Prosecutor lodged an extraordinary appeal on points of law on the applicant’s behalf, in which he contested the decision that the applicant was not entitled to make a fresh claim concerning her legal capacity for three years. The General Prosecutor objected that the District Court had decided exclusively at the request of the applicant’s guardian and that it had failed to decide on the applicant’s requests seeking restoration of full legal capacity, which were included in the file. 39. The Supreme Court dismissed the appeal on points of law on 19 December 2000. It held that the first-instance court had considered all relevant facts, including the applicant’s submissions. 40. The applicant married Mr B. on 22 January 1977. Two children were born to the couple, in 1979 and 1981 respectively. The spouses were divorced at the applicant’s petition on 1 July 1991. 41. On 30 November 1991 the applicant and Mr B. remarried. 42. On 21 March 1994 the applicant applied for a divorce before the Poprad District Court. 43. On 23 March 1994 the judge instructed the Poprad District Court’s Registry to wait for the outcome of the proceedings concerning the applicant’s legal capacity. 44. On 4 May 1994 the applicant’s husband informed the court that he had agreed to a divorce. 45. On 26 May 1994 the file was submitted to the Regional Court in Košice as the judges of the District Court in Poprad considered themselves biased. On 9 June 1994 the Regional Court decided that the case was to be dealt with by the District Court in Prešov. The file was transmitted to the latter court on 10 August 1994. 46. On 6 June 1995 the proceedings were stayed pending the outcome of the above proceedings no. P 81/95 concerning the appointment of a guardian. A guardian was appointed to represent the applicant in the divorce proceedings. The decision to stay the proceedings was served on that guardian on 21 June 1995. 47. On 6 July 1995 the applicant appealed against the decision to stay the divorce proceedings. The file was transmitted to the Regional Court of Košice on 25 July 1995. On 22 December 1995 the Regional Court dismissed the appeal on the ground that the applicant lacked the standing to file it, as her legal capacity had been restricted on 14 April 1993. 48. The judge made inquiries as regards the progress of proceedings no. P 81/95 on 3 May 1995, 5 June 1997, 3 March 1998 and 27 April 1998. 49. On 15 May 1998 the District Court asked the Poprad Municipality to inform it, as the applicant’s guardian, whether it was seeking determination of the applicant’s petition for divorce. The court reiterated that request on 19 August 1998 and 17 November 1998. On 7 December 1998 the Poprad Municipality replied in the affirmative. On 19 January 1999 the Poprad Municipality submitted further documents and information at the court’s request of 22 December 1998. 50. On 25 January 1999 the Poprad Municipality proposed that the divorce proceedings should be stayed pending the determination of its proposal that full legal capacity be restored to the applicant, which had been made in October 1998. On 17 March 1999 the Poprad Municipality submitted further copies of the petition for divorce, in compliance with the District Court’s request. 51. On 18 May 1999 the District Court asked the municipality to pay the court fee. 52. On 20 May 1999 the court sent the applicant’s claim to her husband. The latter submitted his comments on 14 June 1999. 53. On 8 June 1999 the Poprad Municipality asked for an exemption from the obligation to pay the court fee. 54. On 6 September 1999 the case was assigned to a different judge. 55. On 27 January 2000 the District Court exempted the applicant from the obligation to pay the court fee. 56. A hearing was held on 28 February 2000, at which the Prešov District Court granted the applicant and her husband a divorce. The judgment was sent to the parties on 20 April 2000 and it became final on 16 June 2000. 57. On 14 February 1994 the applicant claimed before the Poprad District Court that property she and her husband jointly owned as spouses should be divided. The judge decided to wait for the outcome of the proceedings on the applicant’s legal capacity, which were then pending before the court of appeal. 58. As the Poprad District Court judges considered themselves biased, due to the applicant’s past statements about them, the file was submitted to the Regional Court in Košice. On 30 June 1994 the Regional Court excluded the judges of the District Court in Poprad and transferred the case to the District Court in Prešov. The file was transmitted to that court on 10 August 1994. 59. On 6 June 1995 the proceedings were stayed pending the outcome of proceedings no. P 81/95, relating to the appointment of a guardian for the applicant. On the same day a guardian was appointed to represent the applicant in the proceedings for division of matrimonial property. 60. On 6 July 1995 the applicant appealed. The case was submitted to the Regional Court in Košice on 1 February 1996. On 12 February 1997, 4 April 1997 and 14 May 1997 the Regional Court asked the District Courts in Poprad and Prešov for files concerning the applicant’s legal capacity. The Regional Court dismissed the applicant’s appeal against the decision to stay the proceedings on 28 August 1997. The file was returned to the District Court in Prešov on 16 September 1997. 61. On 16 November 2000 the District Court asked the Poprad Municipality to inform it, as the applicant’s guardian, whether it maintained the action. The District Court reiterated that request on 12 February 2001. It warned the municipality that a fine would be imposed on it in the absence of a reply. 62. On 19 February 2001 the Poprad Municipality withdrew the applicant’s action on the ground that the applicant and her husband had divorced in the meantime. The applicant’s claim had concerned division of property which the applicant and her husband had jointly owned during their marriage. The reason for the applicant’s action no longer existed. 63. The District Court discontinued the proceedings on 21 February 2001. The decision became final on 24 May 2001. 64. On 10 February 1994 the applicant claimed before the Poprad District Court that her husband should be obliged to contribute to her maintenance. 65. On 17 February 1994 the judge decided to wait for the outcome of the proceedings relating to the applicant’s legal capacity, which were then pending before the court of appeal. 66. On 26 May 1994 the file was submitted to the Regional Court in Košice as the judges of the District Court in Poprad considered themselves biased. On 30 June 1994 the Regional Court decided that the case was to be dealt with by the District Court in Prešov. The file was transmitted to the latter court on 11 August 1994. 67. On 30 August 1994 the District Court in Prešov asked the applicant’s husband for comments on the action. It also asked the applicant to specify her claim. 68. On 30 August, 13 October and 10 November 1994 and 16 January and 6 March 1995 the District Court in Prešov asked for information concerning the proceedings relating to the restriction of the applicant’s legal capacity and for the relevant file. 69. On 6 June 1995 the District Court in Prešov stayed the proceedings pending the outcome of proceedings no. P 81/95 relating to the appointment of a guardian. It also appointed a guardian to represent the applicant in the proceedings concerning her claim for maintenance. 70. On 6 July 1995 the applicant appealed against the decision to stay the proceedings. On 28 June 1996 the court of appeal discontinued the proceedings on the appeal as the applicant lacked standing to lodge it. The file was returned to the first-instance court on 8 July 1996. 71. The District Court in Prešov asked for the file in proceedings no. P 81/95 on 22 August 1996, 7 February and 5 June 1997 and 16 February 1998. It did not obtain that file, as the relevant case had been dealt with by different courts. 72. On 22 April 1998 the case concerning the applicant’s claim for maintenance was allocated to a different judge of the Prešov District Court. On 27 April 1998 the judge was informed that file no. P 81/95 could still not be submitted, as that case had been dealt with. 73. On 15 May 1998 the District Court asked the applicant’s guardian, the Poprad Municipality, for comments on the applicant’s claim. In the absence of any reply the District Court reiterated the request on 19 August 1998 and on 17 November 1998. On 7 December 1998 the Poprad Municipality replied that it was maintaining the applicant’s claim for maintenance. On 19 January 1999 the municipality submitted further information at the request of the District Court. 74. On 9 February 1999 the District Court asked three different authorities for information about the situation of the applicant and her husband. It received replies during March 1999. 75. On 6 September 1999 the case was allocated to a different judge. 76. On 1 February 2000 the District Court asked the Poprad Municipality for information about the applicant’s income in 1994 and 1995. 77. A hearing was held on 28 February 2000. The applicant’s husband did not appear. On 3 April 2000 the defendant informed the court that he had been in hospital since the beginning of February 2000 and that he would be undergoing surgery. The hearing scheduled for 17 April 2000 was therefore cancelled. 78. On 28 April 2000 the case was allocated to a different judge. 79. On 17 May 2000 the court asked the defendant’s employer for information about the income of the applicant’s husband. On 20 June 2000 it made an inquiry as regards the applicant’s legal capacity. 80. The District Court heard a representative of the Poprad Municipality on 12 July 2000. The case was adjourned as the defendant was absent. 81. On 6 September 2000 the District Court heard the parties. It dismissed the action with reference to the situation of the applicant and that of her husband. It noted in particular that the defendant had covered all household expenses and the maintenance of their two children at the material time. The judgment was served on the parties on 23 October 2000 and 6 December 2000 respectively. 82. On 5 November 1987 the applicant brought an action with the District Court in Poprad. She challenged her employer’s conclusion that she had been absent from work without authorisation for five days and claimed compensation for lost income totalling 1,141 Czechoslovak korunas. 83. On 17 June 1988 the District Court in Poprad found that the employer had proceeded erroneously. It granted the claim for compensation in part. Both the applicant and the defendant appealed. On 25 January 1989 the Regional Court in Košice upheld the first-instance judgment. On 27 June 1991 the Supreme Court quashed the lower courts’ decision to dismiss a part of the applicant’s claim and returned the case to the Poprad District Court. The outstanding part of the proceedings concerned a claim for payment of the equivalent of approximately 12 euros (EUR). 84. The District Court did not proceed with the case as it was established that, in the meantime, proceedings concerning the applicant’s legal capacity had been brought. 85. On 14 March 1994 the applicant requested that the Poprad District Court judges should be excluded from all her cases. 86. In 1999 and in 2001 the Poprad District Court requested the file concerning the applicant’s legal capacity. The Prešov District Court replied on 21 February 2001 that the file had been sent to the Regional Prosecutor’s Office in Prešov. 87. On 30 April 2001 the applicant’s guardian informed the District Court in Poprad that the applicant was maintaining her request for exclusion of the judges. 88. In October and December 2003 the District Court again requested that the file concerning the applicant’s legal capacity should be submitted to it. 89. On 23 June 2004 the case was assigned to a different judge. 90. The District Court received the requested files concerning different cases of the applicant on 6 July 2004. 91. On 17 February 2005 the Poprad District Court judges were invited to comment on the applicant’s request for their exclusion. Later the Regional Court in Prešov excluded the judge of the District Court who had dealt with the case. The case was transferred to a different chamber of the District Court on 18 May 2006. 92. On 7 March 2007 the Poprad District Court noted that the parties had concluded a friendly settlement under which the defendant undertook to pay the equivalent of EUR 5 plus default interest to the applicant. The court discontinued the proceedings in respect of that part of the action. The applicant withdrew the remaining part of her claim (payment of the equivalent of EUR 7) as that sum had already been paid to her. 93. In 1991 the applicant brought an action with the Poprad District Court which concerned the right to use a flat (Poprad District Court file no. 15 C 692/91). On 17 June 2002 she informed the Court that the District Court had failed to proceed with the action. 94. On 25 April 1994 the applicant and several other members of her family sued the applicant’s husband on the ground that he had made vulgar statements in respect of the applicant and her relatives. The Prešov District Court decided on the action on 24 June 1999 (file no. 15 C 76/96). 95. In 1996 the applicant sued her husband, claiming compensation for non-pecuniary damage on the ground that the defendant had ill-treated her. On 24 June 1999 the Prešov District Court dismissed the action. 96. On 30 May 1996 the applicant claimed before the Poprad District Court that she should be granted custody of her children and that their father should be ordered to pay maintenance. On 4 July 1996 the applicant claimed compensation for movable property before the Poprad District Court. The District Court did not proceed with those claims as the applicant had not made them through the intermediary of her guardian. 97. In 1996 the Spišská Nová Ves District Court approved of an examination of the applicant’s health in a mental hospital without her consent. The relevant decision became final on 17 November 1997 (file no. Ncú 8/96). 98. On 3 March 1999 the applicant and several other persons claimed damages from a couple who had sold livestock to them. The applicant submitted the relevant documents to the Court on 13 August 2002 stating that the proceedings concerning that claim were still pending (Stará Ľubovňa District Court file no. 5 C 771/98). 99. On 22 November 2000 the cooperative which owned the flat in which the applicant and her husband lived claimed that the tenants should be ordered to move out as they had failed to pay the rent. On 28 November 2001 the Poprad District Court granted the claim (file no. 14 C 1156/00). The judgment became final on 29 December 2001. 100. On 10 September 2001 the cooperative sued the applicant and her husband for a sum of money. On 27 March 2002 the District Court in Poprad discontinued the proceedings as the plaintiff had withdrawn the action (file no. 11 C 942/02). On 26 April 2002 the applicant appealed. No further information has been submitted. 101. The applicant unsuccessfully made a number of criminal complaints against different persons including her husband and one of the judges dealing with her cases. 102. On 6 May 2003 the applicant complained to the Constitutional Court about a violation of her rights in the proceedings concerning her cases. On 12 February 2004 the Constitutional Court appointed an advocate to represent the applicant. The advocate submitted a complaint in due form on 24 September 2004. 103. On 11 January 2005 the Constitutional Court declared admissible the complaint about a violation of the applicant’s right to a hearing by an independent tribunal and without unjustified delays in the proceedings concerning a labour dispute which had been pending since 1987. It rejected the remaining complaints for the following reasons. 104. The Constitutional Court rejected as having been lodged outside the statutory two-month time-limit complaints relating to (i) the claim for division of matrimonial property of 14 February 1994, (ii) the applicant’s claim for maintenance of 10 February 1994 and (iii) the proceedings concerning the placement of the applicant in a mental hospital for the purpose of examination of her health, in which the final decision had been given in 1996. 105. The Constitutional Court noted that the District Court in Poprad had failed to proceed with the applicant’s claims for compensation for movable property of 4 July 1996 and for custody of her children and their maintenance, lodged on 30 May 1996. It found no violation of her constitutional rights in that context, as the applicant’s legal capacity had been restricted and she had not been entitled to bring judicial proceedings herself. After examination of the relevant files, the Constitutional Court held that the authority appointed to act as her guardian had not failed to comply with any of its duties. In particular, the applicant’s guardian had acted with due care in the divorce proceedings in 1994 in the context of which both the custody and maintenance of the children and the division of marital property had been determined. 106. On 20 April 2005 the Constitutional Court gave a decision on the merits of the admissible part of the case. It found that the Poprad District Court had violated the applicant’s right to a hearing without unjustified delay. It noted that the proceedings had been pending for over seventeen years and that during the period falling within its jurisdiction (from 17 March 1993) there had been delays imputable to the District Court totalling 135 months. The Constitutional Court granted the applicant 90,000 Slovakian korunas (SKK) as just satisfaction. It ordered the District Court to proceed with the case without delay and to reimburse the costs of the applicant’s representation in the constitutional proceedings. 107. Article 10 §§ 2 and 3 entitles courts to restrict the legal capacity of individuals who, inter alia, are suffering from a lasting mental disorder and who are therefore capable of taking only certain legal actions. A restriction on a person’s legal capacity or his or her deprivation thereof has to be cancelled or its scope modified when the underlying grounds change or fall away. 108. Article 58 § 1 entitles courts to exempt a party from the obligation to respect a time-limit which that party has failed to respect for a justifiable reason. A request to that effect has to be made within fifteen days from the date the obstacle preventing the party from taking the relevant legal action has fallen away. 109. Under Article 186 § 3, as in force at the relevant time, a person who was deprived of legal capacity could claim that it should be restored to him or her. However, where a court dismissed such a request and where it could not be expected that the condition of the person concerned would improve, courts were entitled to prevent that person from making a similar request for an appropriate period, the length of which could not exceed three years. 110. With effect from 1 October 2004 Article 186 § 3 has been amended in that the period during which a person can be prevented from claiming restoration of his or her legal capacity was reduced to a maximum of one year. 111. In a commentary on the above amendment the view was expressed that the original three-year period had been excessively long and capable of seriously affecting a person’s human rights. In view of the progress of medical science, reduction of that period to a maximum of one year was considered appropriate (see Občiansky súdny poriadok, Nová práca, spol. s r.o., 2006, p. 265). 112. Article 187 § 2 provides that a court can refrain from hearing a person whose legal capacity is to be restricted where it is not possible to hear such a person at all or where a hearing would impair that person’s health. 113. Under Article 189 § 2, courts can refrain from serving a decision concerning a person’s legal capacity where its service can have a negative impact on that person because of his or her mental disorder or where the person concerned is not capable of understanding the meaning of the decision.