CASE OF Z.M. AND K.P. v. SLOVAKIA
Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 6-1 (length of the proceedings);Not necessary to examine Art. 6-1 (access to court);No violation of Art. 8;Violation of Art. 13+6;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
Nicolas Bratza
8. The first applicant is the mother of the second applicant. The applicants were born in Slovakia in 1960 and 1981, respectively, and now live outside Slovakia. They both have Slovakian nationality and the nationality of the country of their permanent residence. 9. In 1985 the Bratislava 4 District Court (then Obvodný súd, at present Okresný súd) pronounced the first applicant’s divorce from Mr P., the biological father of the second applicant. The second applicant was entrusted to the care and custody of the first applicant. 10. In 1993 the first applicant married Mr O.A.M. abroad and the applicants set up their permanent residence with him there. 11. On 8 January 1996 Mrs O., the mother of the first applicant, filed an action with the Dunajská Streda District Court claiming that she should be granted the right to educate the second applicant, her granddaughter. At that time the second applicant was fourteen years old and both applicants were in Slovakia on a temporary stay. Mr P. later joined the proceedings on the side of Mrs O. 12. On 14 February 1996 the District Court appointed the Veľký Meder District Office (Okresný úrad) to look after the second applicant’s interests in the proceedings. 13. On 19 February 1996 the first applicant made several submissions to the District Court. She asserted that she and the second applicant were permanently residing outside Slovakia and that, in addition to Slovakian nationality, they also had the nationality of the country of their permanent residence. As they were staying in Slovakia only temporarily, the Slovakian courts had no jurisdiction to entertain the question of the education and care of the second applicant. The first applicant further expressed critical views as to the character of Mrs O. and Mr P. Finally, she lodged an appeal against the decision of 14 February 1996 arguing that officials of the District Office had previously failed to represent the second applicant’s interests adequately and that they could not be expected to do so properly in the future. 14. In April and May 1996 the first applicant sought to disqualify the judge dealing with the case as well as all other judges of the District Court on grounds of bias. The hearing scheduled for 13 May 1996 had therefore to be adjourned and the casefile was submitted to the Trnava Regional Court (Krajský súd) for a decision on the challenge. 15. On 27 May 1996 the first applicant filed a petition with the Bratislava Regional Court claiming that Mr P. should be deprived of his parental rights over the second applicant. According to the applicants, no decision has ever been taken in respect of this request. 16. On 31 May 1996 the District Office issued an interim measure ordering that the second applicant be temporarily placed in the care of Mrs O. The applicants claim that this measure was illegal and that it has never been served officially on them. The first applicant subsequently returned with the second applicant to their home abroad. 17. On 11 July 1996 the Trnava Regional Court sent the casefile back to the District Court instructing it to invite the first applicant to indicate which judges of the District Court she was challenging and why. Subsequently the police informed the District Court that the applicants had left Slovakia in June 1996. 18. On 26 August 1996 Mrs O. requested that the District Court issue an interim measure granting her the custody of the second applicant pending the outcome of the proceedings. The applicants have never been made officially aware of this request. 19. The casefile was again sent to the Trnava Regional Court in September 1996. The Regional Court decided that the District Court’s judges were not biased and, on 18 October 1996, returned the casefile to the latter. 20. The District Court held a hearing on 28 November 1996. 21. Following their arrival for another temporary stay in Slovakia, the District Court heard the first applicant and Mr O.A.M. on 5 December 1996 and the second applicant on 10 December 1996. 22. On 18 December 1996 the case was adjourned and on 19 December 1996 the District Court dismissed Mrs O.’s request of 26 August 1996 for an interim measure. The District Court did so observing that the applicants were living in Slovakia at that time and that, when questioned on 10 December 1996, the second applicant had expressed the wish to stay with the first applicant. The applicants maintain that at that time they were staying in Slovakia only temporarily. 23. On 14 January 1997 the first applicant filed a petition with the Dunajská Streda District Court in which she again claimed that Mr P. should be deprived of his parental rights over the second applicant. 24. On 16 January 1997 the District Court heard witnesses and on 30 January 1997 it appointed an expert in psychology to draw up a report on the second applicant. The latter filed an appeal against this decision. 25. On 3 February 1997 the District Court appointed the Dunajská Streda District Office to look after the second applicant’s interests in the proceedings. The applicants maintain that they have never been notified of the appointment. 26. On 13 February 1997 the expert informed the District Court that she was not in a position to produce the report because of a heavy workload. 27. The hearing called for 18 February 1997 had to be adjourned as the first applicant and Mr P. failed to appear. The District Court ordered that the District Office look into the upbringing environment of the second applicant and the personal and material situation of the first applicant and Mr P. 28. Mr P. requested that an interim measure be issued to prevent the second applicant from travelling abroad without his consent. On 21 February 1997 the District Court dismissed the request. 29. At a hearing held on 6 March 1997 the District Court heard the parties and a representative of the Dunajská Streda District Office. The first applicant was fined for disturbing the orderly conduct of the hearing by, as the applicants claim, objecting to the truthfulness of the testimony given by Mr P. The case was then adjourned and Mr P. was invited to submit documentary evidence. 30. On 7 March 1997 the first applicant filed an appeal “against all decisions” delivered by the District Court judge dealing with the case. 31. On 10 March 1997 Mr P. appealed against the decision of 21 February 1997. He also claimed that his right to meet the second applicant be determined by the court. 32. On 20 March 1997 the first applicant requested that further documentary evidence be taken. 33. On 27 March 1997 Mr O.A.M. lodged a request for adoption of the second applicant. It was his third request to this effect after he had withdrawn two similar requests made previously on 31 January and 19 February 1996. 34. On 13 May 1997 the District Court submitted the casefile to the Trnava Regional Court for a decision on the appeals filed by the parties. On 23 June 1996 the Regional Court returned the casefile to the District Court instructing it to ensure that the first applicant eliminated formal shortcomings in her appeal of 7 March 1997. 35. On 28 July 1997 the Trnava Regional Court dismissed the second applicant’s appeal against the decision of 30 January 1997 concerning the appointment of an expert and quashed the above District Court’s decision of 21 February 1997. 36. On 8 September and 6 October 1997 the District Court inquired of the first applicant’s father about the applicants’ whereabouts. On 15 September and 23 October 1997 he replied that the applicants were currently staying abroad where they had left on 6 May 1997. According to the applicants, they had left Slovakia on 23 April 1997 and were not present there until 6 May 1997. 37. From November 1997 to January 1998 the court attempted several times to establish the address of the applicants in the country of their residence. The police notified the address to the District Court on 29 January 1998. 38. On 24 February 1998, while both applicants were abroad, the District Court issued an interim measure prohibiting them inter alia from leaving Slovakia. On 25 March 1998 Mr O.A.M. appealed against this decision. The first applicant, Mrs O. and Mr P. also appealed. 39. On 14 April 1998 the casefile was submitted to the President of the Trnava Regional Court who returned the file on 7 May 1998. 40. On 8 July 1998, after having taken several procedural steps, the District Court resubmitted the casefile to the Trnava Regional Court for a determination of the appeals against the decision of 24 February 1998. 41. On 26 August 1998 the Trnava Regional Court quashed the District Court’s decision to the extent that it prohibited the applicants from travelling abroad and dismissed the request of Mr P. for an interim measure to this effect. The casefile was returned to the District Court on 4 September 1998. On 11 November 1998 and on 10 March 1999 the District Court judge arranged for service of the Regional Court’s decision on the parties. 42. In the meantime, on 28 October 1998, the first applicant had requested that further evidence be taken. 43. The District Court judge dealing with the case was ill for a considerable period between August 1998 and January 1999 and also between March and May 1999. 44. On 21 April 1999, on the complaint of Mrs O., the Constitutional Court found that her constitutional right to a hearing without unjustified delay had been violated in the above proceedings. In its decision the Constitutional Court admitted that, to a certain extent, the length of the proceedings was due to the behaviour of the parties. However, the case was not particularly complex and what was at stake in the proceedings called for particular diligence. The Constitutional Court further noted that the District Court had caused undue delays in the proceedings by failing to decide in a timely manner on the request for an interim measure restricting the applicants’ travel abroad, thus bringing about the need for the assistance of foreign authorities. Furthermore, by the time of the Constitutional Court’s decision the District Court judge had not yet prepared the request for assistance that was to be sent to these authorities. 45. The Constitutional Court further observed that the District Court had not proceeded with the case effectively in that it had failed to take evidence, including an expert opinion, required for a decision on the case. Delays in the proceedings had also arisen as a result of the ordinary courts’ failure to decide on the requests for interim measures within the statutory timelimit. Finally, the Constitutional Court noted that the District Court had failed to take any effective action in the case since 4 September 1998. 46. The applicants were not informed of the above proceedings before the Constitutional Court, did not take part in them and only learned of their outcome once the proceedings were completed. 47. On 3 September 1999 the District Court judge prepared a request for assistance which was to be submitted through the Slovakian Ministry of Justice to the competent authorities in the country of the applicants’ residence. In particular, the District Court sought that information be obtained from the first applicant and Mr O.A.M. as regards the care and education of the second applicant, Mr P.’s parental and visiting rights in respect of the second applicant and the second applicant’s adoption. The District Court also sought an inquiry into the general upbringing environment of the second applicant and the personal, social and material situation of the first applicant and Mr O.A.M. 48. In a letter of 26 November 1999 the Ministry of Justice invited the District Court to complete the request for assistance by submitting further information and copies of the relevant documents. 49. On 21 January 2000 the District Court took three separate decisions to discontinue the proceedings concerning, respectively, the education and care of the second applicant, the deprivation of Mr P. of his parental rights over her and her adoption by Mr O.A.M. The decisions stated that the second applicant had reached the age of majority in 1999 and that, therefore, the said matters could no longer be determined on the merits.