MArio MARKOVIC v Slovakia - 15286/08 [2010] ECHR 209 (26 January 2010)

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The European Court of Human Rights (Fourth Section), sitting on 26 January 2010 as a Chamber composed of:

Nicolas Bratza, President,
Giovanni Bonello,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Ledi Bianku,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

The applicant, Mr M. Markovič, is a Slovakian national who was born in 1972 and lives in Púchov. He was represented before the Court by Mr R. Procházka, a lawyer practising in Bratislava. The Slovak Government (“the Government”) were represented by their Agent, Mrs M. Pirošíková.

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

On 13 December 2004 the applicant’s wife initiated criminal proceedings against the applicant for bodily harm.

On 14 December 2004 the applicant’s wife left for Karlovy Vary in the Czech Republic. Without the applicant’s knowledge, she took with her their son.

On 20 December 2004 the Karlovy Vary District Court issued an interim measure awarding the applicant’s wife custody of the child.

On 26 July 2005 the PovaZská Bystrica District Police Office discontinued the criminal proceedings on the ground that no crime had been committed.

On 26 August 2005 the discontinuation of the criminal proceedings was confirmed by the PovaZská Bystrica District Prosecutor Office.

On 10 February 2005 the applicant lodged an action with the PovaZská Bystrica District Court petitioning for divorce and seeking determination of the rights and obligations in respect of their child.

On 23 March 2005 the applicant sought an interim measure regulating child contact arrangements.

On 17 May 2005 the first hearing took place. The District Court adjourned the hearing pending its receipt of the criminal file, the Karlovy Vary District Court’s file as well as the administrative file from the Karlovy Vary Social Affairs Office.

On 2 September 2005 the applicant sought an interim measure regulating child contact arrangements.

On 3 May 2006 the District Court imposed a fine on the applicant’s wife for non-appearance before the expert.

On 26 May 2006 the applicant’s wife appealed against the fine. The Regional Court dismissed the appeal on 19 September 2006.

On 22 March 2007 the second hearing took place. The District Court decided to obtain a second expert opinion from an expert in the Czech Republic.

On 18 April 2007 the applicant sought an interim measure regulating child contact arrangements.

On 7 September 2007 the Karlovy Vary District Court dismissed the objection of bias against the expert.

Between October 2007 and March 2008 the PovaZská Bystrica District Court requested the Karlovy Vary District Court on five occasions to inform it whether the decision to dismiss the objection of bias had become final.

On 17 March 2008 the District Court received information that the above decision had become final.

Between February 2008 and June 2008 the PovaZská Bystrica District Court asked the Karlovy Vary District Court on three occasions for information on the status of the expert opinion.

On 2 October 2008 the Karlovy Vary District Court delivered the expert opinion to the District Court.

On 18 February 2009 the applicant submitted his statement in response to the defendant’s appeal.

On 23 February 2009 the case was transferred to the Regional Court for a decision.

On 16 April 2009 the Regional Court decided to obtain a third expert opinion from an expert psychologist.

On 12 June 2009 another expert was appointed due to the heavy workload of the expert appointed on 16 April 2009.

On 22 May 2007 the applicant complained to the Constitutional Court about the length of the civil proceedings.

On 31 August 2007 the Constitutional Court dismissed the complaint as being manifestly ill-founded. It found that the case was not complex. However, the circumstances of the case and the necessity of producing an expert opinion had influenced the length of the proceedings. It further stated that the proceedings had lasted 27 months during which the District Court had spent 10 months dealing with the procedural submissions of the parties. This particular period of delay could not be imputed to the District Court, which had complied with the statutory time-limits at all times.

The Constitutional Court concluded that the District Court had handled the case in an appropriate manner.

The applicant complained about the length of the proceedings. He relied on Article 6 § 1 of the Convention which in its relevant part provides:

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

The Government submitted that the applicant’s right to a hearing within a reasonable time as regards the period examined by the Constitutional Court had not been violated.

As far as the length of the proceedings after the Constitutional Court’s judgment of 31 August 2007 was concerned, the applicant had failed to avail himself of a fresh constitutional complaint about possible delays in the subsequent course of the proceedings. However, they stressed that after the Constitutional Court’s judgment the District Court dealt efficiently with the case. The proceedings had been prolonged to a certain extent due to the parties’ procedural motions, which was not imputable to the domestic courts.

The applicant submitted that his complaint mainly concerned delays in the proceedings up to the Constitutional Court’s judgment. The subsequent developments in the proceedings only confirmed that he still was a victim of the violation complained of. He argued that to lodge a new constitutional complaint, he would have to wait at least another two years since the Constitutional Court would take into account only delays following its first decision. Pointing to periods of inactivity of the District Court, he submitted that the domestic courts had failed to demonstrate special diligence in the present case which involved his relations with his child.

The Court observes that the “reasonableness” of the length of proceedings must be assessed in accordance with the circumstances of the case and the following criteria: the complexity of the case, the behaviour of the applicant and that of the competent authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

Turning to the facts of the present case, the Court notes that the applicant initiated the proceedings on 10 February 2005 by lodging an action with the PovaZská Bystrica District Court for divorce and custody of his child. At the time of the Constitutional Court’s decision of 31 August 2007 the proceedings had lasted 2 years, 6 months and 19 days at two levels of jurisdiction. The Constitutional Court concluded that the length of the proceedings was influenced by the procedural motions of the parties to the proceedings. It considered that the District Court had dealt with the case appropriately.

The Court finds no reason for disagreeing with this conclusion. It is true that delays totalling approximately 10 months occurred in the proceedings since it took the District Court several months to appoint an expert and to decide on the applicant’s wife’s objection of bias against the expert. Those delays do not, however, render the overall duration of the proceedings prior to the Constitutional Court’s judgment excessive. The Court considers, in the light of the criteria established by its case-law on the question of “reasonable time” and having regard to what was at stake for the applicant, that the length of the proceedings up to the judgment of the Constitutional Court of 31 August 2007 was not contrary to the requirements laid down in Article 6 § 1 of the Convention.

In respect of that period the applicant cannot therefore claim to be a “victim” within the meaning of Article 34 of the Convention.

In view of the above, the Court further considers that the applicant was required to have recourse again to a complaint under Article 127 of the Constitution if he considered the length of the proceedings resulting from the subsequent development in the proceedings to be excessive. Furthermore, the applicant has not complained to the Constitutional Court about any delays in the proceedings before the court of appeal. In respect of the relevant period he has not, therefore, exhausted domestic remedies.

It follows that the applicant’s complaint must be rejected in accordance with Article 35 §§ 1, 3 and 4 of the Convention as being manifestly ill founded and for non-exhaustion of domestic remedies.

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You are here: BAILII >> Databases >> European Court of Human Rights >> MArio MARKOVIC v Slovakia - 15286/08 [2010] ECHR 209 (26 January 2010) URL: http://www.bailii.org/eu/cases/ECHR/2010/209.html Cite as: [2010] ECHR 209