2020/06/10 – 30 Cdo 4315/2019 (summary)

Judgment of the Supreme Court of 10 June 2020, Ref. No. 30 Cdo 4315/2019
(state liability, Art. 6 (1) of the European Convention on Human Rights, non-material damage, delays within administrative proceedings)

The present case concerns a demand for financial compensation for non-material damage caused by the delays within administrative proceedings. The claimants initiated the administrative proceedings on 30 November 2012 by the demand to be enlisted in the registry of applicants suitable to become an adoptive parent. The Ministry of Labour and Social Affaires terminated the proceedings by the decision on 23 February 2018. In the meantime, the claimants filed an action for failure of an administrative authority to act. The courts dismissed the action with the conclusion that the administrative authority acted actively without any unreasonable delays. The court of first instance in the present matter based its assessment on the Law No. 82/1998 Coll., on the Liability for Damage Caused Within the Exercise of Public Authority By a Decision or an Incorrect Administrative Procedure (hereinafter as “Law on the Liability for Damage”). It equally took note of the European Convention on Human Rights (hereinafter as “the Convention”). It concluded that the authorities proceeded smoothly and within the reasonable time. It pointed at the specificity of the type of proceeding where the aim of the foster family care is not to satisfy the needs of applicants wishing to become parents but to provide the service for children. The court of appeal confirmed this decision – it nevertheless refuted its reasoning where the first instance court assessed whether the administrative procedure as a whole was conducted within the reasonable time in the meaning of Art. 6 (1) of the Convention. The court of appeal stressed that Article 6 (1) of the Convention is not applicable in the administrative proceedings which are not of a civil nature and in such cases, it is not possible to conclude that there was an incorrect administrative procedure regarding the length of said proceedings within the meaning of the Law on the liability for damage.

The Supreme Court recalled that it is not possible to establish an incorrect administrative procedure in connection to its length according to the Section 13 of the Law on the Liability for Damage if the case concerns administrative proceedings outside the ambit of Art. 6 (1) of the Convention. It cannot be thus concluded that there was an incorrect administrative procedure according to this provision within the whole procedure but only an incorrect administrative procedure consisting in the breach of duty to perform a particular act or render a decision within the time-limit stipulated by the law. The Supreme Court recalled that in order for Art. 6 (1) of the Convention to be applicable it does not suffice that there is only a weak connection of the case at hand with civil rights and obligations of applicants. The outcome of the proceedings must be determining for such rights and obligations. In particular, such proceedings have to concern their existence, scope or condition of their exercise.

In accordance with the requirements stipulated by the case-law of the European Court of Human Rights, the Supreme Court had to firstly assess whether the administrative proceedings regarding the application of the claimant (enlistment in the register of persons suitable to become adoptive parent) is a procedure concerning the civil (private) claim. The issue at hand concerned the application of claimants to be enlisted in the public registry of applicants. The affirmative decision in the administrative proceedings regarding their registry means that this person is on the list of possible candidates for the intermediation of adoption of a particular minor. The child protection authorities then select suitable candidates from this list. Such a person is not, however, legally entitled to the intermediation and the registration alone does not mean that such an applicant will be able to adopt a minor. The Supreme Court underlined that it is solely a court and not an administrative authority which decides on the adoption. The Supreme Court inferred from the above mentioned that even though the intermediation of adoption is an activity contributing to future possible creation of new family ties, it is not the only manner leading to the adoption of a child. The dismissal of the application to be enlisted in the register of applicants regarding the intermediation of adoption by an administrative authority does not exclude the possibility for an unsuccessful applicant to directly initiate the court proceedings for a direct adoption of a minor. Furthermore, the Supreme Court recalled and confirmed the opinion of the Supreme Administrative Court according to which proceedings concerning the application to be enlisted in the register of applicants and following decision do not concern questions of private law but public status of an applicant. Finally, the Supreme Court stressed that the appellants did not raise any particular subjective civil right which should be affected by the decision of an administrative authority regarding the enlistment into the registry of applicants.

The Supreme Court concluded that there was no right of a private nature in the present case and it excluded the applicability of Art. 6 (1) of the Convention. It was thus not possible to assess the appropriateness of the overall length of proceedings and consequently to establish the non-material damage.