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FIFTH
SECTION
CASE OF K. v. SLOVENIA
(Application
no. 41293/05)
JUDGMENT
STRASBOURG
7 July
2011
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 K. v. Slovenia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet Fura,
Boštjan M.
Zupančič,
Isabelle Berro-Lefèvre,
Ann
Power,
Ganna Yudkivska,
Angelika Nußberger,
judges,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 14 June 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 41293/05) 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 a Slovenian national, F.K., on his own behalf
and on behalf of his daughter, A., on 10 November 2005. The President
of the Chamber granted the applicant’s request not to have his
daughter’s name disclosed. The President of the Chamber further
decided of his own motion to grant the applicant anonymity under Rule
47 § 3 of the Rules of Court.
- The
applicant was represented by Mr B. Verstovšek, a lawyer
practising in Celje. The Slovenian Government (“the
Government”) were represented by their Agent, Ms Neva Aleš
Verdir, State Attorney.
- The
applicant alleged under Article 6 § 1 of the Convention and
under Article 7 of the European Convention on the Exercise of
Children’s Rights that the length of the impugned domestic
court proceedings concerning the contact arrangements with his
daughter had been excessive. He further alleged, in substance under
Article 8 of the Convention that, as a result of the ineffectiveness
of these proceedings, he had been deprived of regular contact.
- On
2 October 2008 the President of the Third Section decided to
communicate the complaints under Article 6 concerning delays in
domestic proceedings and under Article 8 concerning the adverse
effect these proceedings allegedly had on the applicant’s
family life to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article
29 § 1). The Court subsequently changed the composition of its
Sections (Rule 25 § 1 of the Rules of Court) and the above
application has been assigned to the newly composed Fifth Section
(Rule 52 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant, Mr F.K., is a Slovenian national who was born in 1971 and
lives in Šentjur.
- The
applicant was married to I.V. On 19 August 2001 their daughter, A.,
was born.
- On
28 November 2002 the Celje District Court granted the couple a
divorce and awarded I.V. custody of A. The applicant obtained contact
rights.
A. The initial contact arrangements determined in the
administrative proceedings and related enforcement proceedings
- On
3 March 2003 the applicant and I.V. concluded an enforceable
agreement on contact arrangements at the Laško Welfare Centre,
in which they agreed that the applicant and A. would have the right
to spend every second weekend together (but only half of the weekend
for the first three months).
- On
24 November 2004 the applicant and I.V. reached another agreement
whereby they slightly modified the scope of contact.
- Beginning
on 2 January 2005, I.V. was allegedly preventing contact between the
applicant and A. As a result, on 30 January 2005, the applicant
lodged a request for enforcement of the contact arrangements
agreement of 3 March 2003 and 24 November 2004 with the Laško
Administrative Unit. On 17 March 2005, the applicant’s lawyer
again requested enforcement of the contact arrangements agreement of
3 March 2003. The enforcement request was forwarded to the Laško
Welfare Centre.
- On
1 April 2005 the Laško Welfare Centre was informed that, on
11 January 2005 I.V. had lodged a criminal complaint against the
applicant for sexual abuse of A. (see paragraph 57 below). For this
reason, the Laško Welfare Centre on the same day stayed the
proceedings pending the outcome of the criminal proceedings.
- Further
to the applicant’s appeal, on 9 November 2005 the Ministry
of Labour, Family and Social Affairs quashed the decision of the
Laško Welfare Centre whereby the proceedings were stayed and
decided to terminate the proceedings. It found that the contact
agreement of 3 March 2003 was no longer enforceable, because the
contact arrangements had been amended on 20 April 2005 by the Celje
District Court in civil non-contentious proceedings (see paragraph 14
below).
B. Amendment of the contact arrangements in civil
non-contentious proceedings (Pn 188/2005)
- On
13 April 2005 I.V. lodged a request with the Celje District Court for
amendment of the contact arrangements determined by the Laško
Welfare Centre on 3 March 2003. Referring to the alleged sexual abuse
of A. by the applicant, she sought less frequent contact between the
two and requested that contact take place under supervision by a
social worker. She also requested that an interim measure be adopted
in this respect.
-
The Celje District Court found that on 23 February 2005 the Laško
Welfare Centre had scheduled a meeting at which the applicant and
I.V. had agreed that in March 2005 contact would take place under
supervision. Another such meeting had been scheduled for 23 March
2005, but the applicant had failed to attend and no further agreement
had been reached. Given that the applicant was suspected of sexual
abuse, the court found it reasonable to uphold I.V.’s request
in part. As a result, on 20 April 2005, it ordered the interim
measure sought, pending the outcome of the proceedings. According to
the court’s decision, contact was to be authorised once a week
for an hour and a half, under supervision.
- On
26 April 2005 the applicant objected to the above decision, claiming
that the court, by ordering the interim measure in question, had
breached the principle of presumption of innocence and had not
respected the adversarial nature of the proceedings. In his
objection, he also requested that these proceedings be joined to the
contentious proceedings (P 327/2005 – see below).
- On
17 May 2005 the court held a hearing. Subsequently, it dismissed the
applicant’s objection as unfounded.
- The
applicant appealed.
- On 10 August 2005 the Celje Higher Court dismissed his
appeal and upheld the first-instance court’s decision on the
interim measure.
C. The applicant’s claim for custody and his
alternative request for new contact arrangements in civil contentious
proceedings (P 327/2005)
- On
24 March 2005, since I.V. was allegedly preventing the applicant from
having contact with A., the applicant, on his own behalf and on
behalf of A., lodged a claim with the Celje District Court whereby he
sought sole custody of A. and child maintenance. He also proposed
that contact rights should be granted to I.V. In the alternative, the
applicant requested that regular contact be granted between himself
and A. and also between A. and other relatives. He further requested,
also on A.’s behalf, that an interim measure be taken in
respect of all his requests. Lastly, the applicant requested
exemption from paying the court fees.
-
On 29 March and 7 April 2005 the court asked the applicant to
complete his request for an exemption from obligation to pay the
court fees. After the request was completed, on 8 April 2005, the
court upheld it on 19 April 2005.
- Meanwhile,
on 14 April 2005 the applicant lodged preliminary written
submissions, urging the court to order the interim measure sought on
24 March 2005.
- On
7 June 2005 I.V. informed the court that the applicant was suspected
of committing a criminal offence of sexual assault on a minor under
the age of fifteen (see paragraph 58 below).
- The
court scheduled a hearing for 9 June 2005. The hearing was not held,
on account of a request from the Administrative Court to examine the
file (see paragraphs 52-56 below).
- On
15 and 18 July 2005 the court requested the Šentjur Welfare
Centre to deliver an opinion in the case. The request was transferred
to the Laško Welfare Centre, which delivered the opinion on
7 September 2005.
- On
18 July 2005 the applicant lodged preliminary written submissions in
which he partly amended his alternative request for an interim
measure, seeking, in the event that the court did not grant him
custody, that A. be placed in foster care, since there was a risk of
her being sexually abused by I.V.’s new partner. He requested,
in the event of refusal of the above request, that I.V.’s
partner be forbidden to have contact with A.
- On
24 November 2005 the court issued a decision in which it joined the
non-contentious proceedings (Pn 188/2005, see above) to these
proceedings. It also dismissed the applicant’s request for an
interim measure on all points.
- Following
an appeal by the applicant, the Celje Higher Court, on 21 December
2005, quashed the first-instance decision and remitted it for
re-examination, finding that the decision had not been sufficiently
reasoned as far as the applicant was concerned. It also found that A.
had not been adequately represented in the proceedings, as there was
a risk of conflict of interest. Subsequently, on 11 January 2006, a
lawyer was appointed as A.’s special representative.
- On
21 March 2006 the first-instance court held a hearing in which the
applicant and I.V. were heard and an expert in clinical psychology
was appointed. However, the appointed expert fell ill and thus could
not proceed with the examination.
- On
9 May 2006 the Administrative Court again requested to examine the
case file. The court sent photocopies of the file on 15 May 2006.
- On 5 June 2006 the court appointed another expert in
psychology in order to determine, among other things, whether it was
likely that A. had been sexually abused and whether the applicant had
paedophile tendencies. She was also asked to determine whether both
parents possessed the personal qualities essential for raising a
child.
- On
14 June 2006 the applicant requested that the appointed expert be
relieved of her duties.
- On
4 July 2006 the court appointed a new expert, but the latter refused
to take the case, stating that she would be absent for a long period
of time. She was relieved of her duties by a court decision of 4
September 2006. On the same day, the court appointed the Commission
for Expert Opinions at Ljubljana University (“the Expert
Commission”) to draw up relevant expert opinions.
- The
two experts appointed by the Expert Commission examined the
applicant, A. and I.V. They observed that A. did not show any signs
of sexual abuse or trauma. They also noted that both parents had the
appropriate qualities for raising a child. In addition, the expert in
psychology observed no signs of sexual deviance or peculiarity in the
applicant’s behaviour. The court received the report on 9
January 2007 after sending a reminder to the experts on 18 December
2006.
- On
11 January 2007 the court urged the criminal court to speed up the
proceedings.
- Relying
on the experts’ opinions, on 12 February 2007, the applicant
lodged preliminary submissions, seeking unsupervised and more
frequent contact. A.’s special representative objected to the
proposal for the court to issue the requested interim decision since,
in her opinion, the expert could not indubitably rule out the alleged
sexual abuse. I.V. also objected to the interim measure.
- On
2 March 2007 the applicant lodged a supervisory appeal under the Act
on the Protection of the Right to a Trial without Undue Delay (“the
2006 Act”) in order to accelerate the proceedings.
- On
30 March 2007, after hearing the applicant and I.V. and relying on
experts’ opinions, the court issued a decision rejecting the
applicant’s request for an interim measure. It stated that
contact was regulated by the interim measure of 20 April 2005 issued
in the non-contentious proceedings (see paragraph 14 above) and that
it was in the best interests of the child to maintain supervised
visits, as the applicant was still suspected of child abuse. It also
said that, albeit carried out under supervision, these visits allowed
the emotional tie between the applicant and his daughter to be
maintained. In addition, it terminated the proceedings in respect of
A.’s request for an interim measure, since her special
representative had withdrawn it. Finally, the court said that, in the
particular circumstances of the case, notwithstanding the presumption
of innocence, the necessary conditions for issuing the requested
interim order had not been met.
- On
5 April 2007 the applicant appealed against this decision. His appeal
was dismissed by the Celje Higher Court on 6 June 2007. The Celje
Higher Court considered that the material legal content of civil
proceedings differed from the one in the criminal proceedings. As a
result, the rejecting of the applicant’s request for an interim
measure cannot constitute a breach of the principle of presumption of
innocence. However, the fact that criminal proceedings were
instituted against the applicant for sexually abusing his own
daughter could not have been overlooked by the first-instance court
when deciding on the scope of the contact. It added that the
first-instance court had been correct in deciding that, on the basis
of experts’ opinions, it could not be established with
certainty whether a decision to immediately grant unsupervised
contact would be in the child’s best interest.
- Meanwhile,
on 13 April 2007 the president of the first-instance court,
apparently in response to the supervisory appeal of 2 March 2007,
informed the applicant that the court had given a decision within
four months of receipt of the supervisory appeal, namely on 30 March
2007 (see paragraph 37 above).
- Subsequently,
on 10 July 2007, the applicant lodged a motion for a deadline under
the 2006 Act, which was rejected as unfounded on 19 July 2007.
- On
23 August 2007 the Administrative Court again requested to examine
the case file.
- On
28 September 2007 the applicant lodged preliminary written
submissions stating that contact had been prevented on twenty
occasions between 2 January and 1 September 2007.
- On
18 October 2007 the court held a hearing at which the applicant and
I.V. were heard. At 11.35 am the judge adjourned the hearing, since a
hearing in the criminal proceedings was scheduled at 12 noon the same
day.
- On
19 October 2007 the court requested the transcript of the hearing
held on 18 October 2007 in the criminal proceedings.
- On
16 November 2007, since the applicant had been acquitted in the
criminal proceedings (see paragraph 74 below), he lodged preliminary
written submissions requesting the court to immediately adopt an
interim measure in order to ensure unsupervised contact between him
and his daughter.
- Also
on 16 November 2007 the court issued a decision concerning the
expert’s fees.
- The
hearing scheduled for 14 December 2007 was called off on account of
other commitments of the expert in psychology. It was rescheduled for
29 January 2008. However, that hearing was not held, since the
applicant’s representative was absent on that day.
- Meanwhile,
on 15 January 2008 the applicant lodged two sets of preliminary
written submissions.
- On 28 January 2008 the court requested the Celje
Higher Court to examine as a priority the appeal lodged by the
District Prosecutor in the criminal proceedings (see paragraph 75
below) as the fact that those proceedings were pending constituted an
obstacle to the civil proceedings.
- On
17 April 2008 the court held a hearing. The parties concluded an
enforceable court settlement concerning the contact rights. This was
after the judgment acquitting the applicant had become final (see
paragraph 78 below). Subsequently, on 23 April 2008 the court
dismissed the applicant’s request for an interim measure of 16
November 2007 (see paragraph 45 above).
- On
18 December 2008 the applicant lodged a just satisfaction claim under
the 2006 Act, which was dismissed on 4 February 2009 as the State
Attorney’s Office considered that the conditions set for
reaching a friendly settlement had not been met in the applicant’s
case.
D. Administrative proceedings concerning the right to
trial without undue delay in contentious civil proceedings (U
93/2005)
- On
18 May 2005, the applicant, on his own behalf and on behalf of A.,
brought an action before the Administrative Court, Celje Unit against
the Celje District Court for breach of the principle of procedural
economy and expedition of proceedings and the constitutional right to
trial without undue delay, in connection with the contentious civil
proceedings instituted on 24 March 2005 (see paragraph 19 above). He
claimed just satisfaction for the damages sustained in this respect.
- On
14 June 2005 the Administrative Court dismissed the action as
unfounded.
- The
applicant appealed on 18 July 2005.
- On
8 December 2005 the Supreme Court quashed the first-instance
decision. The case was remitted for re-examination in the part
concerning the applicant. The Supreme Court further rejected the part
of the decision concerning A.
- On
7 September 2007 the Administrative Court rejected the applicant’s
action, as the Celje District Court had already decided in the case
(see paragraphs 37 and 38 above).
E. Criminal proceedings (Kpr 54/2005, K 78/2006)
- On
11 January 2005 I.V. lodged a criminal complaint against the
applicant alleging sexual abuse of A.
- On
16 March 2005 the Celje District Public Prosecutor lodged a request
for a criminal investigation on the basis of the reasonable suspicion
that the applicant had committed a criminal offence of sexual assault
on a minor under the age of fifteen.
- On
17 March 2005 the applicant lodged a criminal complaint against I.V.
for providing false information with the effect of preventing him
from having contact with A. The Celje District Public Prosecutor
dismissed this complaint as premature on 23 May 2005, and no charges
were brought against I.V.
- Meanwhile,
on 26 April and 18 July 2005 the applicant urged the Celje District
Court to open a criminal investigation without delay in order to
determine his innocence and, as a result, ensure regular contact
between him and his daughter, which had been restricted by the court
decision of 20 April 2005 (see paragraph 14 above) on account of
the criminal complaint lodged against the applicant.
- On
9 September 2005, after questioning the applicant, the investigating
judge decided to open a criminal investigation.
- On
8 November 2005 the investigating judge heard I.V. and her new
partner. The same day the judge appointed two experts in order to
determine the overall state of mind of both, the applicant and his
daughter. The first expert submitted his report on 7 December 2005
and the second one on 16 December 2005.
- On
10 November 2005 the judge in the civil proceedings requested the
court to send the criminal file for examination. The file was
returned on 22 November 2005.
- On
8 December 2005 and 10 January 2006 the applicant submitted his
defence in writing.
- On
27 March 2006 the applicant was indicted for the criminal offence of
sexual abuse of a minor under fifteen.
- On
29 May 2006 the applicant submitted his additional defence in writing
and urged the court to hold a hearing.
- On
5 June 2006 the judge in the civil proceedings again requested to
examine the criminal file. The file was sent back to the criminal
court on 4 September 2006.
- On
21 February 2007 the applicant again submitted his defence in
writing.
- On
2 March 2007 the applicant lodged a supervisory appeal under the 2006
Act in order to accelerate the proceedings. The supervisory appeal
was dismissed on 23 March 2007 since the applicant had not been a
party to the proceedings. However, it seems that the court wrongly
examined the supervisory appeal under proceedings number P 78/2006
instead of K 78/2006. On 10 July 2007 the applicant lodged a
motion for a deadline. On 13 July 2007 the Higher Court decided that
the applicant’s motion for a deadline should be considered by
the district court as a supervisory appeal. However, this remedy
remained unanswered until 22 January 2009, when the president of the
district court dismissed it.
- Meanwhile,
on 20 March 2007 the judge in the civil proceedings again requested
to examine the file, which was sent back to the criminal court on 16
August 2007.
- The
hearing scheduled for 19 September 2007 was called off on account of
flooding in the presiding judge’s home town.
- On
11 October 2007 the court held a hearing at which evidence was heard
from several witnesses and experts. The applicant was also heard.
- On
15 October 2007 the judge in the civil proceedings again requested to
examine the case file.
- After
the hearing held on 18 October 2007, the court delivered a judgment
acquitting the applicant.
- On
22 November 2007 the District Public Prosecutor lodged an appeal.
- On
12 December 2007 the court gave two decisions concerning the experts’
fees.
- On
15 January 2008 the applicant sought reimbursement of the costs and
expenses he had incurred in the proceedings.
- On
4 March 2008 the Celje Higher Court dismissed the appeal and upheld
the first-instance judgment. The judgment was served on the applicant
on 20 March 2008.
- On
8 April 2008 the presiding judge decided on costs and expenses. The
applicant appealed against that decision. The
interlocutory-proceedings panel quashed that decision and remitted it
for re-examination. On 22 December 2008 additional costs were
awarded to the applicant.
F. Administrative proceedings concerning the right to
trial without undue delay in criminal proceedings (U 91/2005)
- In
parallel, on 17 May 2005, the applicant, on his own behalf and on
behalf of A., brought an action before the Administrative Court,
Celje Unit against the Celje District Court for breach of the
principle of procedural economy and expedition of proceedings and the
constitutional right to trial without undue delay, in connection with
the above criminal proceedings. He claimed just satisfaction for the
damages sustained in this respect.
- On
14 June 2005 the Administrative Court dismissed the action as
unfounded, since the charges against the applicant had been brought
only two months before the action was lodged; hence the relevant
period was not in breach of the reasonable-time requirement.
- The
applicant appealed.
- On
8 December 2005 the Supreme Court quashed the first-instance
decision. The case was remitted for re-examination in the part
concerning the applicant. The Supreme Court further rejected the part
of the decision concerning A.
- On
4 April 2006 the Administrative court dismissed the remaining part of
the action concerning the applicant.
II. RELEVANT DOMESTIC LAW
- A summary of the relevant domestic law may be
found in Z. v. Slovenia (no. 43155/05, §§
96-103, 30 November 2010) and Nezirović v. Slovenia ((dec.),
no.16400/06, §§ 14-20, 25 November 2008).
THE LAW
I. LOCUS STANDI OF THE APPLICANT’S CHILD
- The
Government objected to the applicant’s capacity to act on
behalf of his daughter A. in the proceedings before the Court. They
submitted that at the time the applicant lodged the application I.V.
had custody of A., while the applicant retained contact rights.
Referring to the Hokkanen v. Finland case (23 September 1994,
§ 50, Series A no. 299 A), the Government argued that only
I.V., who had been A.’s statutory representative, was entitled
to lodge an application on her behalf.
- The
applicant did not comment on the issue.
- The
Court notes that on 28 November 2002 I.V. was granted sole custody of
A. Having regard to the fact that the present case concerns the
proceedings in which contact arrangements were determined and to the
case-law on the subject matter, the Court concludes that the
applicant has no standing to act on A.’s behalf (see Eberhard
and M. v. Slovenia, no. 8673/05
and 9733/05, §§ 89-90, 1 December 2009; Sahin
v. Germany (dec.), no. 30943/96,
12 December 2000; and
Petersen v. Germany (dec.),
no. 31178/96, 6 December 2001).
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AS
REGARDS THE LENGTH OF PROCEEDINGS
- The
applicant complained that the length of the civil and criminal
proceedings was unreasonable, 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
Court reiterates at the outset that, according to Article 35 § 1
of the Convention, it may only deal with an individual application
lodged with it after all domestic remedies have been exhausted,
according to generally recognised rules of international law, and
within six months of the date on which the final decision was taken.
- As
regards the civil proceedings, the Court notes that the applicant
availed himself of a supervisory appeal under the 2006 Act and
subsequently, on 18 December 2008, lodged a just satisfaction claim
with the State Attorney’s Office. That claim was dismissed on 4
February 2009, as the State Attorney’s Office considered that
the conditions for reaching a settlement had not been met. The Court
further notes that, given the fact that no settlement was reached,
the applicant was consequently able to bring an action in respect of
non-pecuniary damage suffered due to the length of the proceedings
before the domestic court, in accordance with section 20 of the 2006
Act.
- As
to the criminal proceedings, the Court observes that the applicant
first lodged a supervisory appeal, which was wrongly dismissed. The
applicant then lodged a motion for a deadline, which was eventually
considered as a supervisory appeal but which has remained unanswered
until 22 January 2009. The Court notes that, according to the
relevant provisions of the 2006 Act, the applicant was entitled to
lodge a motion for a deadline provided that the supervisory appeal
remained unanswered for two months, at least to secure his access to
a compensation claim (see, mutatis mutandis, Nezirović
v. Slovenia, cited above, § 41). However, he failed to
do so.
- It
follows that this part of the application must be rejected under
Article 35 §§ 1 and 4 of the Convention for
non-exhaustion of domestic remedies.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant also complained that his right to have his family life
respected had been breached on account of delays in the proceedings
concerning child custody and contact arrangements as well as in the
criminal proceedings. He also complained that as a result of the
ineffectiveness of the proceedings he could not have had regular
contact with A., which had impeded A.’s psychological
development and their relationship as father and daughter. In this
connection, he further complained that the national authorities had
failed to make sufficient efforts to expedite the criminal
proceedings in order to determine the applicant’s innocence
and, as a result, to ensure unsupervised contact. According to the
applicant, the national authorities had also failed to order the
interim measures sought in civil proceedings. To this end, the
applicant invoked Article 6 of the Convention and Article 7 of the
European Convention on the Exercise of Children’s Rights.
- The
Court first recalls that it has no power to supervise the compliance
with the European Convention on the Exercise of Children’s
Rights. In accordance with Article 19 of the Convention the Court’s
role is to ensure the observance of the engagements undertaken by the
High Contracting Parties in the Convention and the Protocols thereto.
In this connection, the Court notes that the applicant’s
complaints made under the European Convention on the Exercise of
Children’s Rights and under Article 6 of the Convention
concerned in substance Article 8 of the Convention. Being the master
of the characterisation to be given in law to the facts of any case
before it, the Court therefore deems it appropriate to examine these
complaints in the context of the latter provision (see V.A.M. v.
Serbia, no. 39177/05, § 115, 13 March 2007; Eberhard and
M. v. Slovenia, cited above, § 111, and Z. v.
Slovenia, cited above, § 130).
- 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
- The
Government invited the Court to declare the application inadmissible
as the applicant did not avail himself of all available domestic
remedies under the 2006 Act.
- The
applicant contested that argument, claiming that the remedies
available were not effective.
-
The Court notes that the present application is in this part similar
to the cases of Eberhard and M. v. Slovenia and Z. v.
Slovenia judgments (cited above), in which the Court
dismissed the Government’s objection of non-exhaustion of
domestic remedies. The Court found that 2006 Act 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, while in the cases such as the present one, 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
Eberhard and M. v. Slovenia, cited above, § 105, and
Z. v. Slovenia, cited above, §129).
- The Court finds that the Government have not
submitted any convincing arguments which would require the Court to
depart from its established case-law, and therefore rejects this
objection on the part of the Government as far as Article 8 issues
are concerned.
- The
Court further notes that the complaint about the lack of respect for
family life is not manifestly ill-founded within the meaning of
Article 35 § 3 (a) of the Convention. Nor is it inadmissible on
any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ arguments
(a) The Government’s arguments
- The
Government argued that in the present case the State had complied
with its positive obligations under Article 8. There was a proper
legislative framework in place, and the authorities, who were guided
by the best interests of the child, were sufficiently active.
- The
Government further argued that both proceedings, civil and criminal,
were factually very complex, bearing in mind in particular the number
of experts and witnesses heard. To this must be added the
intertwining of several sets of proceedings, including the
administrative proceedings, which made the task of the relevant
courts more difficult.
- As
to the civil proceedings, the Government argued that the conduct of
the applicant had contributed to the delay. In particular, the
applicant had not displayed enough diligence in submitting his
request for tax exemption and had requested an adjournment of the
hearing scheduled for 29 January 2008, which had caused a delay
of four months and nine days. According to the Government, no periods
of inactivity on the part of the authorities could be observed.
- As
to the criminal proceedings, the Government acknowledged that there
had been three minor periods of inactivity, which were due to the
requests of the civil judge to examine the case file. The Government
argued that these delays should be considered as objective
circumstances of the case and should thus not be attributed to the
State. In addition, the Government argued that the duration of the
criminal proceedings had not affected the required positive
obligations for respect of family life under Article 8.
- The
Government further pointed out that the State had struck a fair
balance between the interests of all parties involved, in particular
those of A., when deciding that contact be restricted to one and a
half hours a week and carried out under the supervision of a social
worker. Moreover, it was very important that the contact did not
cease completely during the criminal proceedings, but continued,
albeit under supervision, until the parents had reached a settlement,
on 17 April 2008, when contact became more frequent and
unsupervised. According to the Government, the contact between the
applicant and A. was only occasionally not carried out as agreed,
which was due to A.’s other commitments or to illness.
(b) The applicant’s arguments
- The
applicant submitted that the case ought to have been given priority,
as required also by the domestic legislation. Nonetheless, the
proceedings were lengthy, and as a result of the ineffectiveness of
the proceedings he had been unable to see his daughter A. for three
and a half years. Moreover, the applicant stressed that he had been
regarded as a paedophile, which had damaged his reputation and caused
him psychological anguish.
- The
applicant also criticised the way the civil proceedings had been
conducted. In his submissions, the civil courts should have heard
experts and decide on contact arrangements without waiting for the
decision in criminal proceedings. Thus, the decision restricting the
contact to one hour and a half a week, to be supervised, was based
solely on the assumption that the applicant had committed an offence.
- Finally,
the applicant more generally 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.
2. Relevant principles
- Summaries of the relevant principles may be found in
paragraphs 140-45 of the Court’s judgment in Z. v. Slovenia
(cited above).
3. The Court’s assessment
- The
Court first notes that the civil contentious proceedings in which the
applicant sought custody and, in the alternative, for contact to be
granted, were instituted on 24 March 2005. The Court further observes
that in parallel, I.V. instituted civil non-contentious proceedings
requesting that, owing to possible sexual abuse, contact should be
less frequent and visits should take place under supervision. As a
result, on 20 April 2005 the court restricted the scope of the
contact arrangements to one hour and a half a week, and secondly,
ordered that contact was to take place under supervision. This
decision was upheld by the Celje Higher Court on 10 August 2005.
In the course of proceedings, on 24 November 2005, the court
joined both those sets of proceedings. The final determination of
contact arrangements was made on 17 April 2008 with a settlement
between the parties.
- The
Court observes that the criminal proceedings began on 16 March
2005, when the request for an investigation was lodged against the
applicant by the public prosecutor. On 18 October 2007 the
applicant was acquitted. The proceedings terminated on 4 March 2008,
the date the decision acquitting the applicant was upheld by the
Celje Higher Court.
- In
the present case, the Court’s task consists in determining
whether the alleged delays in the custody and contact arrangements
proceedings and in the criminal proceedings have had an impact on the
applicant’s family life which would amount to a breach of the
applicant’s rights under Article 8.
- As
to the civil proceedings, the Court first notes that they lasted
three years and one month and involved two levels of jurisdiction. In
this period the domestic courts considered the main issue as well as
several requests for an interim contact order.
- The
Court further observes that these proceedings were in general
conducted swiftly. The court appointed four experts. Three of them
could not ultimately compile a report, for different reasons (see
paragraphs 28, 31 and 32 above); however, none of these reasons were
imputable to the State. Moreover, the courts scheduled seven
hearings. Four hearings were held, while three were called off (see
paragraphs 23 and 47 above).
- The
criminal proceedings, which lasted nearly three years at two levels
of jurisdiction, on the other hand, could not be considered to have
been conducted within a reasonable time. They were pending for two
years and seven months at the first level of jurisdiction alone. The
Court attaches importance to two periods of inactivity for which the
State could be held responsible; the delay of nearly six months
between the request for an investigation and the investigating
judge’s decision (see paragraphs 58 and 61 above) and, in
particular, the delay of one year and five months between the bill of
indictment and the date the court scheduled the first hearing (see
paragraphs 65 and 71 above).
- Turning
to the question whether the conduct of the proceedings have had
impact on the applicant’s family life, the Court first notes
that in so far as the applicant could be understood as complaining
about not having had any contact with A. for a certain period of time
(see paragraph 42 above) the applicant failed to submit at least a
detailed account of this matter by showing in which periods exactly
the contact had not happened and what measures he had taken in this
respect. Thus, the Court cannot make any inference on this particular
question. The Court further notes that the applicant’s
complaint relates chiefly to the fact that, by virtue of the interim
decision of 20 April 2005, he could only have had a very
limited contact with A., which was moreover conducted under
supervision by social workers. The applicant alleged that this
situation lasted for an excessive period of time. In this connection,
the Court notes that owing to the fact that he was suspected of child
abuse, the interim decision of 20 April 2005 was maintained
until the final decision in the criminal proceedings. The Court would
emphasise that the fact that the civil court was awaiting the
criminal court’s judgment before allowing regular contact did
not release the domestic authorities, including the criminal court,
from their obligation to examine the case promptly (see Šilih
v. Slovenia [GC], no. 71463/01, § 205, 9 April 2009).
The criminal court nevertheless took almost three years to decide on
the charges against the applicant; a period in which the applicant’s
opportunities to enjoy family life with A. were severely curtailed.
- Finally,
the Court notes that some delays may have occurred due to frequent
circulation of the case files relating to civil and criminal
proceedings between the courts (see paragraphs 23, 41, 63, 67, 70 and
73 above). However, in urgent cases such as this one a delay caused
on that account may be justified only if limited to a few days as
there is no reason why copying the file would not be an appropriate
solution if certain documents are needed for examination in another
set of proceedings. In this connection, the Court would reiterate
that it is for the State to organise its judicial system in such a
way as to enable its courts to comply with the requirements of the
Convention, including those enshrined in Article 8 of the Convention
(see, mutatis mutandis, R.M.D. v. Switzerland,
26 September 1997, § 54, Reports 1997-VI).
- In
the light of the foregoing, the Court concludes that the Slovenian
authorities failed to meet their positive obligations arising from
Article 8 of the Convention, as a result of which the applicant’s
contact with his daughter A. was severely restricted for three years
(see, mutatis mutandis, Schaal v. Luxembourg, no.
51773/99, § 48, 18 February 2003).
- There
has accordingly been a breach of the applicant’s right to
respect for his family life, in violation of Article 8 of the
Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The applicant further complained under Article 6 §
2 of an infringement of the principle of the presumption of
innocence, stating that contact should not have taken place under
supervision as he had not been found guilty of any charges. In
addition, without citing any Article of the Convention, the applicant
argued that the national authorities, by not taking the appropriate
measures, had failed to protect A.’s interests, given that she
was exposed to a risk of sexual abuse by her mother’s new
partner. Invoking Article 14, the applicant complained that, while a
criminal investigation had been opened against him for alleged abuse
of A., the State had failed to open a criminal investigation against
A.’s mother’s new partner on the basis of the same type
of allegations, made by the applicant himself. Finally, the applicant
complained that he had been discriminated against in the proceedings
because the courts had decided on his ex-wife’s case within a
few weeks, while his case was at the time still pending.
- Having
regard to all the material in its possession and in so far as the
matters fall within its competence, the Court considers that, even
assuming that the applicant has complied with the requirement of
exhaustion of domestic remedies in this respect, this part of the
application does not disclose any appearance of a violation of the
Convention.
- It
follows that it is inadmissible under Article 35 § 3 (a) as
manifestly ill-founded and must be rejected pursuant to Article 35 §
4 of the Convention.
V. 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 330,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government disputed the claim.
- The
Court awards the applicant EUR 6,000 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 3,900,000 Slovenian tolars (SIT), which is
approximately EUR 16,300, for the preparation of the application
form. In addition, he claimed EUR 20,000 for costs and expenses
incurred before the domestic courts and EUR 8,880 for those incurred
in the proceedings before the Court subsequent to the lodging of the
application. This claim was supported by an itemised list of expenses
with reference to domestic statutory rates, similar to the lists
normally submitted to the courts in domestic proceedings.
- The
Government disputed the claim as being exaggerated.
- 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 are
reasonable as to quantum. The Court also notes that the applicant’s
lawyers lodged other applications, which are for the most part the
same as this one. Accordingly, regard being had to the information in
its possession and the above criteria, the Court rejects the claim
for costs and expenses incurred in the domestic proceedings and
considers it reasonable to award the applicant the sum of EUR 1,500
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
- Declares the complaint concerning the lack of
respect for family life 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, within three months of the date on
which the judgment becomes final in accordance with Article 44 § 2
of the Convention:
(i) EUR
6,000 (six thousand euros) to the applicant, plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
1,500 (one thousand five hundred euros) to the applicant, 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 7 July 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean Spielmann
Registrar President
