(Applications nos. 8673/05 and 9733/05)
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:
Boštjan M. Zupančič,
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:
I. THE CIRCUMSTANCES OF THE CASE
A. The initial access arrangements determined in the administrative proceedings and related enforcement proceedings
B. The divorce and related determination of child custody (P 380/2001)
C. The first applicant's application for child custody and his alternative request for new access arrangements (court proceedings P 667/2003)
D. The first applicant's request for new access arrangements (court proceedings N 4/2004 and Pn 22/2005)
II. RELEVANT DOMESTIC LAW
A. Family legislation in force at the material time
“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.”
“... 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.”
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 ...
“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 ...”
“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 ...”
“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.
“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.”
B. Relevant civil procedure rules
“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 ...”
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.”
“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.
“... 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
D. The Act on the Protection of the Right to a Hearing without Undue Delay
“(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.”
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 ...”
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
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.”
1. Locus standi, Article 34 of the Convention
(a) The parties' arguments
(b) Relevant principles
(c) The Court's assessment in the present case
2. Exhaustion of domestic remedies
(a) The Government's arguments
(b) The applicant's arguments
(c) The Court's assessment
3. The Government's remaining objection
1. The parties' arguments
(a) The Government's arguments
(b) The applicant's arguments
2. Relevant principles
3. The Court's assessment
(a) Non-enforcement of access orders issued in administrative proceedings
(b) The court proceedings concerning access arrangements and custody
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
“In the determination of his civil rights and obligations ..., everyone is entitled to a... hearing within a reasonable time by a ... tribunal...”
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
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
FOR THESE REASONS, THE COURT UNANIMOUSLY
(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;
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