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THIRD
SECTION
CASE OF EBERHARD AND M. v. SLOVENIA
(Applications
nos. 8673/05 and 9733/05)
JUDGMENT
STRASBOURG
1 December
2009
This
judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It may be
subject to editorial revision.
In the case of Eberhard and M. v. Slovenia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Elisabet
Fura,
Corneliu
Bîrsan,
Boštjan
M. Zupančič,
Alvina
Gyulumyan,
Egbert
Myjer,
Ann
Power, judges,
and
Santiago Quesada,
Section Registrar,
Having
deliberated in private on 10 November 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in two applications (nos. 8673/05 and 9733/05)
against the Republic of Slovenia lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”) by two Slovenian
nationals, Mr Johann Ivan Eberhard and Ms M. (“the
applicants”), on 18 February 2005. The President of the Chamber
acceded to the applicants' request not to have the second applicant's
name disclosed (Rule 47 § 3 of the Rules of Court).
- The
applicants were represented by Mr B. Verstovšek, a lawyer
practising in Celje. The Slovenian Government
(“the Government”) were represented by their Agent, Mr
L. Bembič, State Attorney-General.
- On
24 June 2008 the Court joined the applications, declared them partly
inadmissible and decided to communicate the complaints concerning the
non-enforcement of access arrangements decided in administrative
proceedings, and the delays in the court proceedings concerning child
custody and access arrangements, to the Government. It also decided
to examine the merits of the parts of the applications that were
communicated to the Government at the same time as their
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
-
The first applicant, Mr Eberhard, was born in 1968 and lives in
Ponikva. The second applicant, M., is his daughter.
- On
8 April 2001 the first applicant's wife, M.E., together with the
second applicant, then aged four, moved out of the flat in which they
had been living with the first applicant. M.E. subsequently filed a
petition for divorce.
A. The initial access arrangements determined in the
administrative proceedings and related enforcement proceedings
- On
4 May 2001 the first applicant and his wife, with whom the second
applicant was living, signed an agreement on access arrangements.
- On
12 June 2001 the first applicant filed a request with the Šentjur
Social Welfare Centre (“the Šentjur Centre”)
seeking formal determination of the access arrangements, claiming
that since 12 May 2001 M.E. had denied him access to the second
applicant.
- During
the following month M.E. gave a number of statements at the Šentjur
Centre, opposing contact between the applicants, stating that the
first applicant represented a danger to her and the second applicant.
She also lodged a criminal complaint against the first applicant for
endangering their safety.
- On
11 July 2001 the expert committee of the Šentjur Centre
submitted an opinion in the case.
- On
31 July 2001 a hearing was held at the Šentjur Centre. While
the first applicant attended the hearing, M.E. refused to attend,
claiming that she did not feel safe in the presence of the first
applicant.
- On
1 August 2001 the Šentjur Centre issued an order granting the
first applicant four hours a week with the second applicant, taking
into account the expert committee's opinion and the fact that, at the
supervised meeting between the applicants, the second applicant had
not appeared to be afraid of the first applicant but, on the
contrary, pleased to see him. The Šentjur Centre did not
follow the first applicant's proposal that he should be allowed to
pick the second applicant up at her nursery; instead it ordered M.E.
to bring the second applicant to a meeting point at a local train
station.
- On
3 October 2002, further to an appeal by M.E., the Ministry of Labour,
Family and Social Affairs (“the Ministry”) modified the
order in part. However, in essence, the access arrangements remained
unaffected. The access order therefore became final and enforceable
on 16 October 2002.
- M.E.
failed to comply with the order. She did not bring the second
applicant to the meeting-point specified therein.
- On
22 November 2002 the first applicant requested enforcement of the
order. After hearing evidence from both parties, on 31 January 2003
the Šentjur Administrative Unit (“the Unit”)
allowed the enforcement and ordered M.E. to hand the second applicant
over to the first applicant at the next meeting. In addition, the
Unit decided that if M.E. failed to do so she would be ordered to pay
a fine of 5,000 Slovenian tolars (SIT) (approximately 25 euros
(EUR)). It also noted that the fine could be increased in the event
of further failure to comply.
- M.E.
continued to refuse the first applicant all access to the second
applicant.
- Further
to the first applicant's thirteen notices of non-compliance by M.E.,
on 3, 18, 23 and 30 April, 13 May and 9 June 2003 the Unit issued
orders imposing fines which increased from SIT 5,000 to SIT 35,000
(approximately EUR 145). The orders were forwarded to the tax
authorities for execution.
- M.E.
appealed against the orders.
- According
to letters addressed to the court by the Šentjur Centre on
8 September 2003 and 3 May 2004, in the context of
proceedings no. P 667/2003, the Šentjur Centre and the
Unit attempted to organise supervised meetings between the
applicants, but M.E. refused to cooperate.
- On
15 June 2004 the Ministry quashed the impugned enforcement orders,
finding that M.E. had not been informed of the first applicant's
notices concerning non-compliance and had had no opportunity of
participating in the proceedings and presenting arguments in her
favour. The Ministry also found that the Unit had not examined the
situation by verifying whether the meetings had actually failed to
take place, and, if so, whether there had been justifiable reasons
for such failure. The Ministry, however, noted that the order
determining access arrangements remained enforceable and could not be
challenged in those proceedings. The Unit was ordered to re examine
the notices. Neither of the parties challenged the decision before
the Administrative Court and it therefore became final on 29 June
2004.
- Further
to changes in legislation which stipulated that the first-instance
authority should be in charge of enforcement, the Unit transferred
the file to the Šentjur Centre on 7 April 2005. There are no
indications in the case file that any steps were subsequently taken
by the Šentjur Centre in the context of these proceedings.
B. The divorce and related determination of child
custody (P 380/2001)
-
On 14 June 2001, further to the divorce petition filed by M.E., the
Celje District Court issued an interim decision granting M.E.
provisional custody (varstvo in vzgoja) of the second
applicant pending the outcome of the proceedings. This decision was
upheld by the Celje Higher Court on 15 November 2001.
- On
11 February 2002 the Celje District Court issued a judgment granting
the first applicant and M.E. a divorce, granting M.E. custody of the
second applicant and fixing the amount the first applicant had to pay
in child support.
- On
4 December 2002 the Celje Higher Court upheld M.E.'s appeal in part
and increased the child support. This was a final decision in these
proceedings.
C. The first applicant's application for child custody
and his alternative request for new access arrangements (court
proceedings P 667/2003)
- On
6 June 2003 the first applicant lodged an application for custody of
the second applicant, relying on the fact that M.E. was denying them
contact. He also requested an interim order under which the second
applicant would be placed in his custody pending the outcome of the
proceedings, and the appointment of a curator ad litem to
represent the second applicant's interests in the proceedings. He
further requested that the case be granted priority. On 7 July 2003
the applicant submitted documents in support of his request for
exemption from obligation to pay the court fees.
- The
hearing scheduled for 30 September 2003 was cancelled at the first
applicant's request.
- At
a hearing held on 20 November 2003 the first applicant requested to
have the case dealt with through mediation. The request was allowed
by the court. However, it would appear that M.E. showed no interest
in resolving the issues in that manner.
- On
3 March 2004 the first applicant requested the President of the
court to establish why no hearing had been scheduled. The next day a
hearing was scheduled for 1 April 2004. That hearing was then
adjourned as M.E. did not attend. The Šentjur Centre was
requested to conduct an interview with M.E. and to inform the court
about the implementation of contact between the applicants.
- At
the hearing of 13 May 2004, the first applicant requested that the
proceedings be stayed, after having had an opportunity to see the
second applicant at the school's parent-teacher meetings.
- However,
as M.E. continued to refuse any contact between the applicants, on 16
August 2004 the first applicant requested that the proceedings be
resumed and a hearing was scheduled for 7 October 2004. It was
adjourned as the court decided, further to the first applicant's
request, to appoint an expert psychologist. On 19 October 2004 the
court appointed expert D.T. to produce an opinion in the case.
- On
24 May 2005 the first applicant lodged written submissions and
requested the court to urge the expert to prepare the opinion. In
addition, he made an alternative request seeking, inter alia,
a change in the access arrangements and to have proceedings Pn
22/2005 (see paragraphs 52-62 below) joined to the current set of
proceedings. In these and subsequent submissions the second applicant
was also mentioned as a plaintiff.
- On
16 June 2005 and 7 December 2005 the first applicant lodged further
written submissions. In the first set, he submitted that he had had
no access to the second applicant. He also asked the court to appoint
another expert, as D.T. had failed to produce an opinion. In the
second set of submissions the first applicant urged the court to
issue the interim custody order (see paragraph 24 above) and added an
alternative request for an interim access order. In the latter, he
emphasised the need to organise the visits in a manner that would
prevent M.E. from obstructing them. Accordingly, he proposed to pick
the second applicant up from school, after her lessons. The first
applicant also informed the court that, to his knowledge, M.E. was
refusing to be examined by D.T., and complained about the passivity
of the court. In addition, the first applicant alerted the court to
the fact that he had had no access to the second applicant in the
past four and a half years, except on one occasion at her school.
- In
the meantime, the appointed expert informed the court on 22 September
2005 that he was unable to prepare the opinion as M.E. had refused to
cooperate. On 8 December 2005, the court informed the first applicant
that it would decide on the interim orders only when the expert
opinion was available.
- On
22 February 2006 the first applicant lodged supervisory appeals with
the President of the court and the Ministry of Justice complaining
about the passivity of the judge.
- On
23 February 2006 the first applicant again urged the court to decide
on the case, stressing that M.E. was deliberately avoiding
examination by the expert.
- On
27 February 2006 the judge prepared a report in reply to supervisory
appeal. The next day the President of the court replied to the first
applicant. He noted that no interference with the judge's decision
concerning the appointment of the expert was permitted and that there
were no reasons for any measures to be taken in response to the first
applicant's supervisory appeal. He also informed him that the main
reason for the delay in the proceedings was M.E.'s failure to
cooperate and reassured him that if the expert could still not
examine M.E. the court would decide on the interim access order in
the absence of an expert opinion.
- On
14 March 2006 the first applicant requested the expert, the judge and
the President of the court to step down from the case, arguing that
they were inactive. His requests were dismissed on the ground that
the statutory conditions for withdrawal were not fulfilled.
- On
20 March 2006 M.E. was examined by the expert.
- On
19 May 2006 the court held a hearing concerning the interim orders.
Beforehand, it acquired information concerning the first applicant's
criminal record and relevant information from the Šentjur
Centre and M.E.'s bank. All parties were present at the hearing.
Subsequently, on 26 May 2006, the court issued a decision
rejecting the first applicant's application for provisional custody
and upholding his alternative request for an interim access order. It
noted that “during the court proceedings the applicants had
contact once in 2004 at the school in Celje and, subsequently, twice
at the school in Ljubljana”. The applicants were granted the
right to spend, inter alia, one afternoon a week together,
whereby the first applicant would pick the second applicant up after
school and return her to M.E. at 5 p.m., plus every second weekend
and part of the holidays. These arrangements were to be implemented
after three weekly preparatory meetings. The court also decided that
M.E. could be subjected to a fine of SIT 500,000 (approximately EUR
2,080) if she was found to be preventing or obstructing contact
between the applicants. The second applicant was by then nine years
old.
- As
M.E. and the second applicant moved to Ljubljana, the Ljubljana
Vič-Rudnik Social Welfare Centre (“the Ljubljana Centre”)
obtained jurisdiction in the case. On 13, 20 and 27 June 2006 the
applicants had contact in the context of the preparatory meetings
held at the Ljubljana Centre. The Centre assessed the visits very
positively. In answer to the court's request, the Ljubljana Centre
informed it that subsequent contact between the applicants did not
appear to have been hindered.
- On
21 August 2006 the first applicant lodged written submissions
complaining that on certain occasions he had been denied access to
the second applicant. He also requested that M.E. be penalised as
stipulated in the decision of 26 May 2006.
- On
24 October 2006 the expert D.T. issued a report which assessed the
relationship between the applicants in positive terms, finding that
the second applicant showed affection for the first applicant and
that there were no reasons to doubt the latter's capacity to be a
parent. D.T. further found that M.E. had in the past year changed her
attitude regarding the relationship between the applicants and gained
some trust in the first applicant. D.T. also noted that the second
applicant was growing up with her mother and had expressed a wish to
continue living with her.
- On
2 November 2006 the court ordered the first applicant to pay the
expert's fees. The first applicant appealed on 10 November 2006. On
29 March 2007 the Celje Higher Court upheld the order of
the first-instance court, finding that the first applicant had
undertaken to pay the fees for the expert whose appointment he had
proposed.
- In
the meantime, on 24 January 2007, the first applicant received the
expert opinion.
- On
27 February 2007 the court scheduled a hearing for 5 March 2007,
which was adjourned sine die at M.E.'s request. M.E. stated
that she would not be available during that period as she had given
birth in December 2006 and was breastfeeding.
- On
2 March 2007 the first applicant lodged a supervisory appeal, relying
on section 6 of the Act on Protection of the Right to a Hearing
without Undue Delay (“the 2006 Act”).
- On
23 March 2007 the President of the court, relying on section 6,
paragraph 4 of the 2006 Act, replied to the supervisory appeal
stating that the hearing had been held on 5 March 2007, that is,
within four months of receipt of the supervisory appeal.
- On
7 September 2007 the court held a hearing. It joined proceedings Pn
22/2005 to the existing proceedings. Since the first applicant
insisted that the second applicant act as a second plaintiff and be
represented in the proceedings by a curator ad litem (see
paragraph 24 above), the court adjourned the hearing and appointed a
lawyer to represent the second applicant.
- On
the same day the first applicant lodged preliminary written
submissions in which he expressed his dissatisfaction with certain
parts of the expert opinion and requested that a new expert be
appointed.
- On
3 October 2007 the first applicant lodged a motion for a deadline,
relying on section 8 of the 2006 Act. On 15 October 2007 the
President of the Celje Higher Court rejected (zavreči)
the motion. He found that the first applicant had not sufficiently
explained his allegations of undue delay and therefore failed to
satisfy the requirements of section 5, paragraph 2, point 5 of the
2006 Act.
- A
hearing was scheduled for 9 November 2007 but was cancelled at the
request of the second applicant's representative.
- The
next hearing was held on 10 January 2008. At the hearing the parties
agreed on new access arrangements. Under the terms of that agreement,
the first applicant also withdrew his application for custody rights.
In addition, the parties withdrew two other claims – one
criminal complaint for defamation lodged by M.E. against the first
applicant and a civil complaint pursued by the first applicant
against M.E. On that day the proceedings were “finally
resolved” (see paragraph 79 below).
D. The first applicant's request for new access
arrangements (court proceedings N 4/2004 and Pn 22/2005)
- On
24 May 2004 the first applicant lodged a request for access
arrangements in separate proceedings. In his request the first
applicant noted that the access order issued in administrative
proceedings had been ineffective and requested that the court grant
an interim access order which would ensure contact between the
applicants. In this connection, he requested to be granted the right
to pick up the second applicant at her school, which would prevent
M.E. from hindering the access. In July and September 2004 the court
tried to serve the request on M.E., but to no avail. The court then
ordered that the request be served through M.E.'s employer.
- In
his written submissions of 25 October 2004 the first applicant
included the second applicant as a claimant.
- On
26 October 2004 the Šentjur pri Celju Local Court held a
hearing. It found that it lacked jurisdiction to decide in the case
and referred it to the Celje District Court.
- On
23 December 2004 the applicants requested the Šentjur pri
Celju Local Court to transfer the case file to the Celje District
Court.
- On
29 December 2004 the Šentjur pri Celju Local Court informed
the first applicant that the case could not be transferred as the
decision concerning the court's lack of jurisdiction had not yet
become final owing to the lack of success in serving it on M.E.
- On
14 January 2005 the case was transferred to the Celje District Court
and was registered under number Pn 22/2005.
- On
11 February 2005 the first applicant requested priority.
- The
court held a hearing on 24 March 2005 in the absence of M.E. The
first applicant testified that he had had access to the second
applicant only on three occasions, namely on 12 May 2001, on 5 May
2004 and on 23 December 2004. The judge informed the first
applicant that an interim access order could not be issued as the
final access order issued in administrative proceedings was still in
force.
- On
24 and 25 March 2005 the first applicant filed written submissions.
- On
4 April 2005 the Celje District Court asked the first applicant to
enclose a confirmation from the social welfare centre that an attempt
had been made to reach an agreement concerning access rights as
stipulated in the Marriage and Family Relations Act. It also noted
that the advance for the payment of expert fees had not been paid. It
appears from this decision that the second applicant, represented by
her father, was also considered a claimant in the proceedings.
- On
17 May 2005 the court dismissed the request for new access
arrangements as the first applicant had failed to submit the required
documents. It seems, however, that this decision did not become final
as on 25 May 2005 the first applicant successfully requested that the
proceedings be joined to proceedings P 667/2003 (see paragraph 30
above).
II. RELEVANT DOMESTIC LAW
A. Family legislation in force at the material time
- Until
1 May 2004 the Social Welfare Centres were in principle responsible
for taking decisions concerning access arrangements. The enforcement
of such decisions could then be requested only in administrative
proceedings. As regards the sanctions, the Administrative Procedure
Act (Zakon o splošnem upravnem postopku, Official
Gazette no. 80/1999) provided in its section 299:
“If the enforcement of a non-pecuniary obligation
cannot be achieved or achieved in time by the means specified in
sections 297 and 298 of this law [such as the imposition of
administrative fines], it may, depending on the nature of the
obligation concerned, be secured by direct coercion unless otherwise
stipulated in the applicable legislation.”
- The
Marriage and Family Relations Act (“the MFR Act”, Zakon
o zakonski zvezi in druZinskih razmerjih,
(old) Official Gazette
of the Socialist Republic of Slovenia no. 15/1976) stated in its
section 114 that:
“... In the event of a divorce or annulment of
marriage, parental rights (roditeljska pravica) shall be
exercised by the parent who has custody of the child.
Decisions that are decisive for the development of a
child, shall be taken by both parents together ....
If the parents cannot reach an agreement, the Social
Welfare Centre shall decide.”
- On
23 April 2003 the Constitutional Court delivered an
important decision in which it found several provisions of the MFR
Act concerning custody and access arrangements to be
unconstitutional. Subsequently, an amendment was enacted by the
Parliament (Official Gazette no. 16/2004). It entered into force on 1
May 2004.
- Further
to the above-mentioned legislative changes, the courts acquired
jurisdiction to adjudicate custody and access arrangements. Since
then, parents have been able to reach an agreement (outside divorce
proceedings) in non-contentious civil proceedings. If no agreement
can be reached with the assistance of the Social Welfare Centre, the
issue of custody is decided in contentious civil proceedings. The
issue of access arrangements can be decided in non-contentious civil
proceedings if it is not raised together with the issue of custody
(sections 78, 105 and 106 as amended in 2004). In particular,
sections 105 and 106 provide, as far as relevant:
Section 105
“...
If the parents, with the assistance of the Social
Welfare Centre, cannot reach an agreement on the custody of children
(varstvo in vzgoja otrok), the court shall decide at the
request of one or both parents that all the children are in the
custody of one of them or that some children are in the custody of
one and the others in the custody of the other parent. The court may,
of its own motion, decide to place all or some of the children in the
custody of a third person. Before the decision is taken by the court,
the opinion of the Social Welfare Centre shall be obtained. The court
shall take the child's view into account if the child expresses his
or her view ...
Section 106
“A child has the right to have contact with both
parents. Both parents have the right to have contact with their
children. Contacts should be in the child's interest first and
foremost.
The parent with whom the child lives ... shall avoid
anything that hinders or prevents such contact. He or she must strive
to maintain an appropriate attitude in the child in respect of
contacts with the other parent ...
...
The court can withdraw or limit the right to contacts
only if this is necessary for the protection of the child's interests
...”
- Section
106 of the amended MFR Act states also that, if the custodial parent
denies the non-custodial parent access to the child and contact
cannot be secured with the assistance of the Social Welfare Centre,
the court shall, at the request of the non-custodial parent, transfer
custody to him or her if this is in the interest of the child.
- In
addition, the amended MFR Act annulled the previous section 114 (see
paragraph 64 above), providing instead, in sections 107 and 113:
Section 107
“Minors shall be represented by their parents.
Letters or information to be served on the minor may be
served effectively on any of the parents; if the parents do not live
together, they shall be served on the one with whom the child lives
...”
Section 113
“Parental rights shall be exercised mutually by
both parents in accordance with the child's best interests. If they
cannot reach an agreement, the Social Welfare Centre shall assist.
When the parents do not live together and do not have
joint custody, they shall decide mutually on all issues decisive for
the child's development in accordance with the child's best interest.
If they cannot reach an agreement, the Social Welfare Centre shall
assist. Questions concerning the child's everyday life shall be
decided by the custodial parent.
If the parents, even with the assistance of the social
welfare centre, do not reach an agreement ...., the court decides on
these issues.
...”
- Section 116 states the circumstances in which parental
rights can be withdrawn:
“The parent who abuses his or her parental rights
or abandons a child or demonstrates unwillingness to take care of the
child or in any other way neglects his or her responsibilities shall
be deprived of his or her parental rights by a court judgment.”
- Section
10a of the amended MFR Act provides that cases covered by the Act
should be processed with priority.
- Lastly,
pursuant to the transitional provisions of the amended MFR Act,
proceedings instituted before the entry into force of the amendments
(that is, before 1 May 2004) were to be continued and completed
before the Social Welfare Centre. In such cases any appeal against
the first-instance decision was still to be examined by the Ministry.
However, where the first-instance decision was quashed by the
Ministry, the proceedings were to be continued before the district
court with territorial jurisdiction in accordance with the amended
MFR Act.
B. Relevant civil procedure rules
- The
relevant provisions of the Civil Procedure Act (Zakon o pravdnem
postopku, Official Gazette no. 26/1999, in force since
14 July 1999), read as follows:
Section 408
“In marital disputes and disputes concerning
relations between parents and children the courts shall of their own
motion take all steps necessary to safeguard the rights and interests
of the children ...
In disputes concerning the custody and maintenance of
children [and in disputes concerning contacts between children and
parents or other persons – added with the amendment of 5
January 2004, in force since 1 May 2004], the panel is not bound
by the parties' requests. Where so provided by the law, the panel may
take decisions even without any request being made.
For the protection of the interests of the persons
mentioned in the first paragraph, the panel may investigate facts
which were not provided by the parties, and collect the information
necessary for its decision ...”
Section 409
“...
If there is a conflict of interests between the child
and his or her statutory representative (zakoniti zastopnik),
the court shall appoint a special representative for the child. The
same shall be done if, in the circumstances of the case, the court
deems it necessary for the protection of the child's interests.”
Section 411
“During proceedings concerning marital disputes
and disputes relating to relationships between parents and children,
the court may, at the request of one of the parties or of its own
motion, issue interim orders (začasne odredbe) concerning
child custody and maintenance as well as interim orders withdrawing
or restricting access arrangements.
...”
- As regards the stay of proceedings, section 210 of the
Civil Procedure Act provides:
“... the proceedings are stayed (mirovanje
postopka) until a party proposes that they be continued. The
proceedings may not be resumed until three months after they were
stayed.”
C. Administrative Disputes Act
- Section 25 of the 1997 Administrative Disputes Act
(Zakon o upravnem sporu, Official Gazette no. 50 /97) sets
out the grounds on which an administrative act can be challenged
before the administrative court. Among the grounds referred to are:
incorrect application of the law, breach of the procedural rules,
including the party's inability to provide arguments in his or her
favour, and incorrect or insufficient establishment of the facts.
Section 26 of the Administrative Disputes Act provides that the
application must be lodged with the administrative court within
thirty days of service of the impugned administrative act.
D. The Act on the Protection of the Right to a Hearing
without Undue Delay
- The
Act on the Protection of the Right to a Hearing without Undue Delay
(Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja,
Official Gazette no. 49/2006 – “the 2006 Act”) was
passed by the Parliament on 26 April 2006 and entered into force on 1
January 2007.
- The
2006 Act provides for remedies to expedite pending proceedings (a
supervisory appeal and a motion for a deadline). In addition to these
acceleratory remedies, the 2006 Act also provides for the possibility
of obtaining redress through a compensatory remedy, by instituting
proceedings for just satisfaction within nine months of the “final
resolution” of the case (see paragraph 79 below).
- As
regards the acceleratory remedies, a claimant may, during the first-
and second-instance proceedings, that is the proceedings before the
regular courts, use a supervisory appeal if he or she considers that
the court is unduly protracting the decision-making. If the president
of the court dismisses the supervisory appeal or, inter alia,
fails to respond to the claimant within two months, the claimant can
lodge a motion for a deadline with the court hearing the case. The
motion for a deadline is dealt with by the president of the higher
court. He or she shall decide on the motion for a deadline within
fifteen days of receiving it.
- As
regards the obligatory elements which must be included in a
supervisory appeal and a motion for a deadline, section 5 provides in
the relevant part:
“(2) For the purposes of decision-making
concerning the protection of the right to a trial without undue
delay, the supervisory appeal [the same applies to a motion for a
deadline] shall contain the following elements:
– personal or corporate name or any other name of
the party, with address of permanent or temporary residence or
registered office;
– personal or corporate name or any other name of
the representative or lawyer, with address of permanent or temporary
residence or registered office;
– indication of the court hearing the case;
– reference number of the case or date on which
the case was filed in the court;
– indication of circumstances or other
particulars concerning the case which demonstrate that the court is
unduly protracting the decision-making;
– handwritten signature of the party,
representative or lawyer.”
- As
to the claim for just satisfaction, sections 15, 19 and 20 of the
2006 Act provide that for the claimant to be able to lodge a claim
for just satisfaction two cumulative conditions must be satisfied.
Firstly, during the first- and/or second-instance proceedings the
claimant must have successfully availed himself of a supervisory
appeal or have lodged a motion for a deadline, regardless of its
outcome. Secondly, the proceedings must have been “finally
resolved” (pravnomočno končan postopek). The
final resolution of the case refers in principle to the final
decision against which no ordinary appeal lies. This would normally
be the first-, or if an appeal has been lodged, the second-instance
court's decision. The maximum amount of just satisfaction for
non-pecuniary damage fixed by the 2006 Act is EUR 5,000.
- As
regards proceedings terminated before 1 January 2007, section 25 lays
down the following transitional rules in relation to applications
already pending before the Court:
Section 25 - Just satisfaction for damage sustained
prior to implementation of this Act
“(1) In cases where a violation of the right to a
trial without undue delay has already ceased and the party has made a
claim for just satisfaction with the international court before the
date of implementation of this Act, the State Attorney's Office shall
offer the party a settlement on the amount of just satisfaction
within four months of the date of receipt of the case referred by the
international court for the settlement procedure. ...
(2) If the proposal for settlement referred to in
paragraph 1 of this section is not acceded to or the State Attorney's
Office and the party fail to negotiate an agreement within four
months of the date on which the party made its proposal, the party
may lodge a claim [for just satisfaction] with the competent
court under this Act ...”
- For
a more detailed presentation of the 2006 Act, see
Zunič v. Slovenia, (dec.) no.
24342/04, 18 October 2007.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicants complained that their right to have their family life
respected had been breached because of the State's failure to enforce
access arrangements decided in the administrative proceedings and of
delays in the court proceedings concerning child custody and access
arrangements.
The
relevant part of Article 8 reads as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.”
A. Admissibility
1. Locus standi, Article 34 of the Convention
(a) The parties' arguments
- The
Government challenged the first applicant's capacity to act on behalf
of the second applicant in the proceedings before the Court. They
submitted that with the judgment of 11 February 2002 (see paragraphs
22 and 23 above), M.E. gained custody of M. The first applicant kept
visiting rights. Referring to the Hokkanen v. Finland case (23
September 1994, § 50, Series A no. 299 A), the Government
argued that in order to lodge an application on behalf of the second
applicant, the first applicant would therefore need to submit an
authority form signed by M.E., who was the second applicant's
statutory representative.
- The
applicants did not comment on the issue but maintained that the first
applicant, also, was the second applicant's statutory representative.
(b) Relevant principles
- The
Court recalls that a person who is not entitled under domestic law to
represent another may nevertheless, in certain circumstances, act
before the Court in the name of the other person (see, mutatis
mutandis,
Nielsen v. Denmark, judgment of 28 November
1988, Series A no. 144, §§ 56-57). Moreover,
the conditions governing individual applications are not necessarily
the same as national criteria relating to
locus standi.
National rules in this respect may serve purposes different from
those contemplated by Article 34 of the Convention and, whilst
those purposes may sometimes be analogous, they need not always be so
(see Norris v. Ireland, judgment of 26 October 1988,
Series A no. 142, § 31).
- Whether
a natural parent has standing to act on his child's behalf in
proceedings before the Court is dependent on whether the party who
opposes the natural parent and is entitled to represent the child
under domestic law can be deemed to effectively protect the child's
Convention rights (see Siebert v. Germany (dec.),
no. 59008/00, 9 June 2005).
- The
Court has found in previous cases that in the event of a conflict
over a minor's interests between a natural parent and the person
appointed by the authorities to act as the child's guardian, there is
a danger that some of those interests will never be brought to the
Court's attention and that the minor will be deprived of effective
protection of his rights under the Convention. Consequently, even
though the parent has been deprived of parental rights, the standing
as the natural parent suffices to afford him the necessary power to
apply to the Court on the child's behalf, too, in order to protect
his or her interests (cf. Scozzari and Giunta v. Italy [GC],
nos. 39221/98 and 41963/98, § 138, ECHR 2000-VIII,
and Siebert, cited above).
- By
contrast, the Court has drawn a different conclusion in certain cases
concerning a dispute between a mother who had custody over a child
and the child's natural father about the latter's access to the
child. It found that such conflicts concerning parental rights other
than custody do not oppose parents and the State on the question of
deprivation of custody where the State as holder of custodial rights
cannot be deemed to ensure the children's Convention rights. In cases
arising out of disputes between parents, it is the parent entitled to
custody who is entrusted with safeguarding the child's interests. In
these situations, the position as natural parent cannot be regarded
as a sufficient basis to bring an application also on behalf of a
child (see Sahin v. Germany (dec.), no. 30943/96,
12 December 2000; Petersen v. Germany (dec.),
no. 31178/96, 6 December 2001, and Wildgruber v. Germany
(dec.), no. 32817/02, 16 October 2006).
(c) The Court's assessment in the present case
- The
Court notes that M.E. has had sole custody of the second applicant
since the interim order of 14 June 2001 (paragraphs 21, 22, 23, 38
and 51 above). It further notes that the applications concern
non-enforcement of access arrangements and length of proceedings
regarding access and custody rights. They do not, however, concern
the merits of the decisions on the right to custody. Having regard to
the above principles (paragraph 88 above), the Court concludes that
the first applicant's position as a father cannot be regarded as a
sufficient basis to bring the present applications also on behalf of
the second applicant.
- Consequently,
the first applicant has no standing to act on the second applicant's
behalf. This is, however, without prejudice to any proceedings
which the second applicant may be entitled to bring in her own right
for damages allegedly suffered by her by reason of the failure on the
part of the authorities to enforce the access order. The Court will
therefore limit its examination of the case to the part that concerns
the first applicant, hereinafter referred to as "the applicant".
The second applicant will hereinafter be referred to as "M.".
2. Exhaustion of domestic remedies
(a) The Government's arguments
- The
Government invited the Court to declare the application inadmissible
for failure to exhaust domestic remedies.
- They
maintained that the applicant had a possibility to challenge the
Ministry's decision of 15 June 2004 in a claim before the
administrative court but failed to exhaust that remedy. They
submitted five administrative court decisions issued in
family-related disputes. Three of the claims were against the
Ministry's decisions concerning enforcement orders, all brought by
custodial parents against whom the enforcement orders had been
issued. In two of the cases, the file was remitted to the Ministry
for re-examination on the grounds that the facts had not been
correctly established. In the remaining one, the custodial parent's
claim was dismissed.
- The
Government further argued that the applicant had at his disposal a
constitutional appeal, which he had failed to lodge.
- Lastly,
the Government argued that as proceedings no. P 667/2003 had
been finally resolved on 10 January 2008, the applicant, who had
successfully availed himself of a supervisory appeal, could have
initiated proceedings for just satisfaction within nine months from
the mentioned date in accordance with the provisions of the 2006 Act.
He failed, however, to avail himself of this remedy, which should be
considered to be an effective one in terms of the alleged violation
of Article 6 as well as the alleged violation of Article 8 of the
Convention, the latter being a consequence of the former.
- In
this connection, the Government submitted that no cases in which the
parties sought just satisfaction for delays in proceedings concerning
custody disputes or access arrangements had been brought before the
domestic courts under the 2006 Act so far. This was due to the short
period that had elapsed since the introduction of the 2006 Act. On
the other hand, the Government submitted copies of eight domestic
court decisions issued in family-related cases where the parties had
successfully availed themselves of the acceleratory remedies.
- In
their further observations, the Government contested the applicant's
arguments submitted in reply to the above objection (see paragraphs
98-102 below). They argued that the allegation that the 2006 Act was
applicable only to complaints concerning proceedings which were
instituted after 1 January 2007 was without any basis. As regards the
claims for just satisfaction brought in respect of delays under the
previous legislation, that is before the 2006 Act became operational,
they had been dealt with under the general rules of civil obligations
and therefore the claimants had been required to establish the damage
suffered. The domestic case-law submitted by the applicant related to
that prior situation and therefore could by no means be used to
challenge the effectiveness of the 2006 Act.
- As
regards the effectiveness of the claim for just satisfaction which
had been available to the applicant under the 2006 Act, the
Government disputed all the applicant's contentions. In particular,
the statutory criteria used by the State Attorney's Office and the
courts for assessing compensation for non-pecuniary damage were
comparable to those of the Court. In making settlement proposals the
State Attorney's Office was guided by the forty-five percent
threshold established in the Court's case-law. The Court's decisions
in such cases as Zajc and 4 others v. Slovenia (dec.), nos.
13992/03 etc., 6 May 2008, and
Kešelj and 6 others v. Slovenia (dec.), nos. 20674/05,
etc., 19 May 2009, in which the new remedies were assessed,
showed that the just satisfaction claim offered sufficient redress to
the applicants, including sufficient reimbursement of lawyers' fees.
The Government also submitted a copy of a domestic court's judgement
issued under the 2006 Act in one of the cases the Court had
previously declared inadmissible for being premature (Carević
v. Slovenia (dec.), no. 17314/03, 3 June 2008). In that case the
domestic court had awarded the applicant compensation for
non-pecuniary damage relying on comparable cases decided by the Court
and applying the principle that the compensation was considered
reasonable if it amounted to forty-five percent of the sum that would
have been awarded by the Court.
(b) The applicant's arguments
- The
applicant argued that a constitutional appeal was an ineffective
remedy and submitted one case in which a decision concerning interim
access and custody had been challenged. The constitutional appeal had
been rejected as manifestly ill-founded (decision no. Up-498/08, 15
April 2008). In another case referred to by the applicant the
Constitutional Court had dismissed on procedural grounds a
constitutional appeal concerning alleged inactivity of the court in
proceedings concerning enforcement of an interim access order. The
Constitutional Court found that a constitutional appeal did not lie
against a conduct or omissions, such as a court's inactivity, but
only against legal acts issued by public authorities (decision no.
Up-1044/05, 21 December 2005).
- The
applicant further argued that the proceedings in the present case had
been conducted, for the most part, before 1 January 2007, when the
2006 Act started to be implemented. He had lodged acceleratory
remedies, as provided for in the 2006 Act, but to no avail. In his
submission, according to the domestic case-law the 2006 Act was
applicable only to proceedings instituted after 1 January 2007. As
regards the period before 1 January 2007, the applicant
submitted that the problem of lack of effective remedies stemmed from
the fact that the courts refused to directly apply the Convention in
this area. In any event, the applicant was of the opinion that the
2006 Act was an ineffective remedy in theory and practice.
- He
argued that the lodging of acceleratory remedies was an unreasonable
formality, which was burdensome for the applicants and the courts.
The length of proceedings was a systemic problem in Slovenia and the
situation could not be improved by acceleratory remedies. In support
of his contention, the applicant submitted copies of more than a
hundred decisions by which supervisory appeals and motions for a
deadline lodged by the applicant's lawyer in other, unrelated cases
were rejected.
-
The applicant went on to argue that a just satisfaction claim was an
equally ineffective remedy. The compensations offered by the State
Attorney's Office or awarded by the domestic courts were normally
only about ten to fifteen percent of the amount that would have been
awarded by the Court. The amount fixed by the 2006 Act as the maximum
compensation available for violation of the right to a trial without
unreasonable delay was also incompatible with the Court's practice.
Moreover, the domestic courts would award reimbursement of lawyers'
fees only in part. The applicant also alleged that the provisions of
the 2006 Act concerning deadlines, the requirement to refer to the
case number when filing remedies and the provisions concerning the
courts' territorial jurisdiction made the remedies even more
difficult to use.
- The
applicant further complained that in proceedings for compensation for
undue delays parties were required to prove the damage they had
suffered; that the parties were normally required to testify before
the court, which was a very traumatic experience, in particular in
family-related cases; that the courts would assess a particular
judge's responsibility for delays instead of accepting that the
delays were a systemic problem; and that the courts applied domestic
law wrongly and were biased. In this connection, the applicant
submitted more than fifty domestic decisions concerning compensation
for alleged unreasonable length of proceedings sought in claims that
had been lodged with the domestic courts before 1 January 2007.
(c) The Court's assessment
-
The Court recalls that the rule of exhaustion of domestic remedies
obliges those seeking to bring their case against the State before an
international judicial or arbitral organ to use first the remedies
provided by the national legal system. Consequently, States are
dispensed from answering before an international body for their acts
before they have had an opportunity to put matters right through
their own legal system. The rule is based on the assumption –
reflected in Article 13 of the Convention, with which it has close
affinity – that there is an effective remedy available in
respect of the alleged breach in the domestic system, regardless of
whether the provisions of the Convention have been incorporated into
national law (see Akdivar and Others v. Turkey, 16 September
1996, § 65, Reports of Judgments and Decisions
1996 IV).
- Under
Article 35 normal recourse should be had by an applicant to remedies
which are available and sufficient to afford redress in respect of
the breaches alleged. However, there is no obligation to have
recourse to remedies which are inadequate or ineffective. The Court
would also recall that the exhaustion rule must be applied with due
allowance for the fact that it is being applied in the context of
machinery for the protection of human rights. Accordingly, Article 35
must be applied with some degree of flexibility and without excessive
formalism; in reviewing whether the rule has been observed it is
essential to have regard to the particular circumstances of each
individual case (ibid, §§ 66-69).
- With
regard to the Government's objection concerning the exhaustion of the
remedies available under the 2006 Act, the Court notes that this
legislation introduced remedies concerning specifically the right to
have one's case examined within a reasonable time, within the meaning
of Article 6 § 1 of the Convention. However, in the present
case it is not merely the excessive length of civil proceedings which
is in issue, but the question whether, in the circumstances of the
case seen as a whole, the State can be said to have complied with its
positive obligations under Article 8 of the Convention (see,
mutatis mutandis, Šilih v. Slovenia [GC], no.
71463/01, §§ 169 and 170, 9 April 2009, and
Byrzykowski v. Poland, no. 11562/05, § 90,
27 June 2006). The Court therefore rejects this objection
of the Government as far as Article 8 issues are concerned.
- As
regards the objection that the applicant failed to challenge the
Ministry's decision of 15 June 2004 in the claim before the
administrative court, the Court observes that the applicant's
complaint under Article 8 did not concern the grounds on which the
Ministry had remitted the enforcement orders for re-examination.
Since Article 35 requires applicants to exhaust remedies that relate
to the alleged breaches of the Convention, which the mentioned
remedy would not, the Court cannot dismiss the applicant's complaint
on the basis that he failed to use it.
- Finally,
the Government also argued that the applicant ought to have lodged a
constitutional appeal. The Court notes in this connection that the
Government provided no explanation as to the accessibility of this
remedy in the context of the applicant's complaint under Article 8 of
the Convention, and produced no case-law to that effect. This
objection must therefore be dismissed.
3. The Government's remaining objection
- Without
specifying the admissibility grounds on which they wished to rely,
the Government argued that the applications should be declared
inadmissible as the applicant had been convicted for failing to pay
child support for M. However, the Government subsequently confirmed
that the second-instance court had acquitted the applicant of those
charges.
- The
Court notes that the Government relied on this argument also in
respect of the merits of the case, and considers it appropriate to
examine it there.
4. Conclusion
- The
Court notes that the applicant's complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The parties' arguments
- The
Court notes that some of the parties' arguments which referred
to Article 6 § 1 also concerned in substance the issues
raised under Article 8 of the Convention. The Court deems it
appropriate to examine these arguments in the context of the latter
provision (see Kutzner v. Germany, no. 46544/99, §§
56 and 57, ECHR 2002 I, and V.A.M. v. Serbia, no.
39177/05, § 115, 13 March 2007).
(a) The Government's arguments
- The
Government submitted that the applicant had failed to fulfil his
fundamental obligation to pay child support for M. – an
obligation which was inherently linked to the right to maintain a
family life. However, in their later submissions they acknowledged
that the applicant had been acquitted of the charges brought in that
respect.
- In
any event, the Government argued that in the present case the State
had complied with the positive obligations under Article 8. There was
a proper legislative framework in place and the authorities were
sufficiently active. The case, however, was a very complex one,
involving emotional issues following divorce, and was impeded by
M.E.'s fear of the applicant. As regards the latter, the Government
argued that it appeared from M.E.'s statements given to the Šentjur
Centre (see paragraph 8 above) that M.E. had prevented contact
because of the applicant's threats.
- The
Government maintained that the authorities had ordered compulsory
measures to ensure compliance with the decision on access
arrangements, namely administrative fines which, due to the quashing
of the enforcement orders, had remained unexecuted. The
Administrative Unit had also tried to ensure contact between the
applicant and M. with the assistance of the Šentjur Centre,
which had proposed supervised meetings, but this too was of no avail
as M.E. had refused to cooperate. In considering measures to be taken
against M.E., the authorities had been guided by the best interests
of the child. It would have been against those interests if a higher
fine had been imposed on M.E. or physical force used to enforce the
decisions.
- The
Government argued that responsibility for the lack of contact between
the applicant and M. lay exclusively with M.E. The quashing of the
enforcement orders, which was due to M.E.'s appeal, and the
non-fulfilment of M.E.'s obligations could therefore not be
attributed to the State.
- As
to the court proceedings, the Government argued that the conduct of
the applicant had significantly contributed to the delay. In
particular, the applicant had not displayed enough diligence in
submitting his request for tax exemption; he had requested an
adjournment of the hearing scheduled for 30 September 2003,
which had caused a delay of one month and twenty days; he had
requested that the proceedings be stayed from 13 May 2004
until 16 August 2004; he had unsuccessfully requested the
withdrawal of the judge, the President of the court and the expert,
which had caused a delay of twenty-three days; he had appealed
against the decision to pay expert fees, which had caused a delay of
almost five months. In addition the State could not be held
responsible for the following facts: the time needed to collect
relevant information from different authorities; M.E.'s move to
Ljubljana with M., which had caused delays in acquiring relevant
information from the Ljubljana Centre; and the adjournment of the
hearing scheduled for 5 March 2007 because M.E. had had a
baby and was breastfeeding.
- The
Government further pointed out that the interim access order had been
issued on 26 May 2006 and that in June 2006 three meetings had taken
place successfully at the Ljubljana Centre. Subsequent visits between
the applicant and M. had taken place without supervision. Therefore,
from the issuing of the interim access order until the end of the
court proceedings, contacts between the applicant and M. had not been
hindered.
- Lastly,
the Government submitted that M.E.'s prevention of contact had not
caused long-term harm as contact between the applicant and M. had
been restored since June 2006.
(b) The applicant's arguments
- The
applicant alleged that the domestic legislation did not set
time-limits within which the courts had to take interim and final
decisions in cases concerning custody and access arrangements. In his
submissions, this situation resulted in a systemic problem. As
regards the initial access arrangements, he argued that the previous
legislative framework, by which access arrangements were determined
and enforced in administrative proceedings, was completely
ineffective and, in his case, had had irremediable consequences. This
was made worse by the fact that the changes in the legislation
applied only in proceedings instituted subsequent to adoption of the
amendments.
- Referring
to the European Convention on the Exercise of Children's Rights and
the United Nations Convention on the Rights of the Child, the
applicant submitted that, as a result of the ineffectiveness of the
above proceedings, he had been unable to see M. and exercise his
parental rights for several years. No measures had been effectively
taken during that period, and in particular monetary fines had not
been enforced and no measure of physical force had been used against
M.E.
- With
regard to the court proceedings, the applicant submitted that this
kind of case ought to have been given priority, as required also by
the domestic legislation. Nonetheless, the interim access order had
not been issued until 9 June 2006, three years after the proceedings
had started. Eventually, the proceedings were discontinued in 2008,
as the applicant had no choice but to accept the settlement in order
to make his access rights enforceable.
- In
reply to the Government's arguments, the applicant submitted that the
request for tax exemption had nothing to do with the main
proceedings; that the stay of the proceedings had been requested in
an attempt to resolve the dispute constructively; that the appeal
concerning the expert fees was a simple procedural matter which,
given the urgency of the case, ought to have been resolved within a
few days; that the request for the withdrawal of the judge, the
president and the expert had been made in despair as all other steps
had been without effect; that the issue of child support had nothing
to do with the access and custody rights and in any event he had been
acquitted on 7 October 2008 of the charges brought against him in
that connection. He also submitted that the claims that he had been
dangerous and violent were untrue and were not supported by any
evidence or court finding. Moreover, these arguments, relied on by
the Government, could in any event not be held against M.
- The
applicant also submitted that all State authorities were required to
act promptly and of their own motion to protect the interest of M.
The Government's argument that the State could not be held
responsible for the delays which resulted from the court's gathering
of information from the authorities was therefore invalid.
- More
generally, the applicant submitted that as a matter of practice the
Slovenian courts did not pursue the enforcement of interim orders in
cases such as the present one. In addition, the experts' work, which
was necessary in this kind of disputes, was completely unregulated in
Slovenia and the manipulative practice of filing criminal complaints
for harassment against estranged fathers had not been properly
addressed by the State.
2. Relevant principles
- The
Court notes that the mutual enjoyment by parent and child of each
other's company constitutes a fundamental element of “family
life” within the meaning of Article 8 of the Convention (see,
among other authorities, Monory v. Romania and Hungary, no.
71099/01, § 70, 5 April 2005).
- Further,
even though the primary object of Article 8 is to protect the
individual against arbitrary action by public authorities, there are,
in addition, positive obligations inherent in effective “respect”
for family life. In both contexts, regard must be had to the fair
balance which has to be struck between the competing interests of the
individual and of the community as a whole; in both contexts the
State enjoys a certain margin of appreciation (see Keegan v.
Ireland, judgment of 26 May 1994, Series A no. 290, p. 19,
§ 49).
- In
relation to the State's obligation to implement positive measures,
the Court has held that Article 8 includes for parents a right that
steps be taken to reunite them with their children and an obligation
on the national authorities to facilitate such reunions (see, among
other authorities, Ignaccolo-Zenide v. Romania, no. 31679/96,
§ 94, ECHR 2000-I; Nuutinen v. Finland, no.
32842/96, § 127, ECHR 2000-VIII; and Iglesias Gil
and A.U.I. v. Spain, no. 56673/00, § 49,
ECHR 2003-V). In addition, the Court has previously considered
that ineffective, and in particular delayed, conduct of custody
proceedings may give rise to a breach of Article 8 of the Convention
(see V.A.M., cited above, § 49).
- In
cases concerning the enforcement of decisions in the sphere of family
law, the Court has repeatedly found that what is decisive is whether
the national authorities have taken all necessary steps to facilitate
the execution as can reasonably be demanded in the special
circumstances of each case (see, mutatis mutandis, Hokkanen,
cited above, § 58; Ignaccolo-Zenide, cited above, §
96; Nuutinen, cited above, §128; and
Sylvester v. Austria, nos. 36812/97 and
40104/98, § 59, 24 April 2003).
- In
this context, the adequacy of a measure is to be judged by the
swiftness of its implementation, as the passage of time can have
irremediable consequences for relations between the child and the
parent who do not cohabit (see Ignaccolo-Zenide, cited above,
§ 102).
- Finally,
the Court has held that although coercive measures against the
children are not desirable in this sensitive area, the use of
sanctions must not be ruled out in the event of unlawful behaviour by
the parent with whom the children live (see Ignaccolo-Zenide,
cited above, § 106).
3. The Court's assessment
- The
Government seemed to suggest that the applicant should not be
considered to have a right to enjoy family life with M. due to his
alleged non-payment of child support. The Court observes that the
applicant was acquitted of the charges brought against him in this
connection and that in any event this argument, which was not even
relied on by the domestic authorities, could not be decisive in
assessing the nature of the tie between the applicant and M.. Having
regard to the facts of the case, the Court therefore considers that
the tie between the applicant and M., who are a father and his
daughter, falls within the scope of “family life” within
the meaning of Article 8 of the Convention.
(a) Non-enforcement of access orders issued in
administrative proceedings
- The
Court notes that following the separation of the applicant and M.E.,
M. continued to live with M.E., who also obtained custody of her. The
applicant, however, kept his visiting rights and the authorities
established that it was in M.'s interest to maintain contact with the
applicant. Further to the applicant's request of 12 June 2001,
arrangements for his access to M. were specified in the access order
of 1 August 2001, which was in the most part upheld by the Ministry's
order, issued on 3 October 2002, that is to say, more than a
year later. The order became enforceable on 16 October 2002.
Since M.E. failed to comply with the access arrangements set out in
the order, the Unit, at the applicant's request, ordered their
enforcement subject to an administrative fine of approximately EUR 25
being imposed on her. As this was of no avail, several further
requests for enforcement were made by the applicant thereafter and
further administrative fines amounting to up to EUR 145 were imposed
on M.E. (see paragraphs 14-16 above). However, these fines were never
executed and the related decisions were ultimately quashed on
procedural grounds. The access order, which had been enforceable
since October 2002, therefore remained unenforced. New access
arrangements were then determined by the interim access order, which
was issued in the court proceedings in May 2006.
- It
is true that the lack of contact between the applicant and M. was due
to M.E.'s noncompliance with the obligations set out in the access
arrangements. However, the Court cannot accept the Government's
argument that the applicant's alleged threats had played a
significant role in this. It notes that the applicant has never been
considered unsuitable for maintaining contact with M. and for taking
care of her during the visits. On the contrary, it has been found by
the authorities that the contact was in M.'s interest. Furthermore,
the threats were only reported by M.E. and not established as a fact
by the domestic authorities. The question that therefore needs to be
answered is whether the national authorities took the necessary
adequate steps to facilitate the execution of the access order in the
face of M.E.'s persistent refusal to comply.
- In
this connection, the Court would emphasise that it is not required to
examine whether the domestic legal order allowed of effective
sanctions against M.E. It is for each Contracting State to equip
itself with adequate and effective means to ensure compliance with
its positive obligations under Article 8 of the Convention (see
Ignaccolo-Zenide, cited above, § 108). Nor does the
Court deem it necessary to deal with the applicant's arguments
concerning the general situation in Slovenia. The Court's sole task
is to consider whether in the instant case the measures taken by the
Slovenian authorities were adequate and effective.
- It
observes in this respect that the fines, even if they were capable of
compelling M.E. to comply with the access arrangements, were never
actually executed. Further, the attempts by the Šentjur Centre
to organise supervised meetings failed as M.E. refused to cooperate,
but there is no indication in the case file that any measures were
taken in response to her lack of cooperation or that this would have
any consequences for her.
- For
the rest, the Court observes that no other measures were taken by the
authorities to create the necessary conditions for executing the
order in question, be they coercive measures against M.E. or
preparatory steps for contact between the applicant and M.
- Having
regard to the facts of the case, including the passage of time, the
best interests of M., the criteria laid down in its own case-law and
the parties' submissions, the Court, notwithstanding the State's
margin of appreciation, concludes that the Slovenian authorities have
failed to make adequate and effective efforts to execute the access
order of 1 August 2001 taken together with the Ministry's
decision of 3 October 2002.
(b) The court proceedings concerning access
arrangements and custody
- The
court proceedings in which the applicant sought custody of M. were
instituted on 6 June 2003. On 24 May 2005, that is further
to the change in legislation which entrusted the courts with
jurisdiction in matters concerning access rights and after his
requests in the above administrative proceedings and the other set of
court proceedings (see paragraphs 52-62 above) had failed, the
applicant lodged an alternative request for an access order. No
decision was subsequently taken and on 7 December 2005 the
applicant also filed an alternative request for an interim access
order. An interim access order was issued on 26 May 2006 and as far
as the final determination of custody and access arrangements is
concerned the proceedings terminated on 10 January 2008 with a
settlement between the parties. It has been submitted by the
Government and not refuted by the applicant that he had quite regular
contact with M. after June 2006.
-
The Court notes that the court proceedings at issue lasted for more
than four years and six months. During the first three years the
applicant had contact with M. on only three occasions (see paragraph
38 above). New access arrangements were provisionally specified in
May 2006, which was three years after the proceedings had begun and
one year after an alternative request for an access order had been
made. The Court notes in this connection that the domestic
legislation empowered the courts to take steps and adopt interim
orders of their own motion for the protection of the child's
interests (see paragraph 72 above) and considers that the arrangement
of access should have been treated with the utmost urgency, given the
ongoing lack of contact between the applicant and M. due to lack of
enforcement of the access order issued in the administrative
proceedings.
- The
Court does not consider that complexity could explain the length of
these proceedings, in which only five hearings were held. It also
notes that except for a request to cancel one hearing and a request
to stay the proceedings between May 2004 and August 2004 (see
paragraphs 28 and 73 above), the applicant took no steps that could
have significantly contributed to the delay in the proceedings. On
the contrary, he made several complaints and lodged supervisory
appeals urging the court to speed up the proceedings, which seem to
have been of no real avail. Nor does the Court consider that the
facts independent of the applicant's and judge's conduct to which the
Government referred (see paragraph 116 above) justified the length of
the proceedings in issue.
- The
Court lastly notes that the court was in part impeded in progressing
with the proceedings because M.E. avoided examination by the
appointed expert. For that reason and despite the applicant's
complaints, the expert psychologist prepared an opinion in the case
two years after he had been requested to do so. In this connection,
the Court observes that her refusal to cooperate in the proceedings
appears to have had no consequences for M.E. (see, mutatis
mutandis, Ignaccolo-Zenide, cited above, §
109).
-
In view of the duration of the impugned court proceedings and the
conduct of the Slovenian authorities, and having regard to the
consequences thereof for the applicant's family life, the Court
considers that the proceedings were not conducted effectively, in
particular promptly, as required by Article 8 of the Convention.
(c) Conclusion
- The
Court concludes that as regards the enforcement of the access order
issued in the administrative proceedings and the conduct of the court
proceedings concerning access and custody rights, the Slovenian
authorities failed to meet their positive obligations arising from
Article 8 of the Convention, as a result of which the applicant had
almost no contact with M. for more than four years. There has
accordingly been a breach of the applicant's right to respect for
their family life, in violation of Article 8 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF
THE CONVENTION
- The
applicant also complained that the length of the court proceedings
concerning custody rights and access arrangements had exceeded a
reasonable time in breach of Article 6 § 1 of the
Convention, the relevant part of which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a... hearing within a
reasonable time by a ... tribunal...”
- The
Government and the applicant relied on the arguments outlined in
paragraphs 94-97 and paragraphs 99-102, respectively.
- The
Court notes that the applicant was entitled under the 2006 Act to
lodge a claim for just satisfaction within nine months of the
discontinuation of the proceedings (see paragraphs 76 and 79 above),
but he failed to do so. However, he disputes the effectiveness of
such a claim and more generally of the 2006 Act.
- The
Court reiterates that in the area of the exhaustion of domestic
remedies there is a distribution of the burden of proof. It is
incumbent on the Government claiming non-exhaustion to satisfy the
Court that the remedy was an effective one available in theory and in
practice at the relevant time, that is to say, that it was
accessible, was one which was capable of providing redress in respect
of the applicant's complaints and offered reasonable prospects of
success. However, once this burden of proof has been satisfied it
falls to the applicant to establish that the remedy advanced by the
Government was in fact exhausted or was for some reason inadequate
and ineffective in the particular circumstances of the case or that
there existed special circumstances absolving him or her from the
requirement (see, Akdivar, cited above, § 68).
- The
Court notes that the applicant indeed had access to the claim for
just satisfaction, which became available to him one year after the
implementation of the 2006 Act. It recalls its findings from previous
cases where it said that, if reasonably promptly available, the claim
for just satisfaction under the 2006 Act was in principle capable of
providing adequate redress for the violation of the right to a trial
within a reasonable time (Zunič, cited above, § 53).
Having regard to the parties' arguments on the subject matter and
noting that the applicant did not produce any evidence relevant to
the implementation of the 2006 Act which undermined the above
finding, the Court considers that there is no reason to conclude that
the just satisfaction claim would not have had a reasonable prospect
of success if pursued by the applicant in respect of the alleged
unreasonable length of the court proceedings. This part of the
applications must thus be rejected for non-exhaustion of domestic
remedies in accordance with Article 35 §§ 1 and 4
of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed EUR 280,000 in respect of non-pecuniary damage.
- The
Government disputed the claim.
- The
Court awards the applicant EUR 7,500 in respect of non-pecuniary
damage suffered as a result of the violation of Article 8 of the
Convention.
B. Costs and expenses
- The applicant also claimed SIT 1,140,624, which is
approximately EUR 4,800, for the preparation of the application
forms. In addition he claimed EUR 6,000 for costs and expenses
incurred before the domestic courts and EUR 2,640 for those incurred
in the proceedings before the Court subsequent to the lodging of the
applications. This claim was supported by itemised list of expenses
similar to the lists normally submitted to the courts in domestic
proceedings.
- The
Government disputed the claim as being exaggerated.
155. According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
rejects the claim for costs and expenses in the domestic proceedings
and considers it reasonable to award the applicant, who was
represented by the lawyer, EUR 3,000 for the proceedings before the
Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Decides that the applicant has no standing to
act on behalf of M.;
- Declares the complaint lodged by the applicant
on his own behalf under Article 8 of the Convention admissible and
the remainder of the application inadmissible;
- Holds that there has been a violation of Article
8 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention the following
amounts:
(i) EUR
7,500 (seven thousand five hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
3,000 (three thousand euros), plus any tax that may be chargeable to
him, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 1 December 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
