British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[
Home]
[
Databases]
[
World Law]
[
Multidatabase Search]
[
Help]
[
Feedback]
European Court of Human Rights
You are here:
BAILII >>
Databases >>
European Court of Human Rights >>
Z. v. SLOVENIA - 43155/05 [2010] ECHR 1898 (30 November 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1898.html
Cite as:
[2010] ECHR 1898
[
New search]
[
Contents list]
[
Printable RTF version]
[
Help]
THIRD
SECTION
CASE OF Z. v. SLOVENIA
(Application
no. 43155/05)
JUDGMENT
STRASBOURG
30
November 2010
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 Z. v. Slovenia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Elisabet Fura,
Boštjan M.
Zupančič,
Alvina Gyulumyan,
Ineta
Ziemele,
Luis López Guerra,
Ann Power,
judges,
and Santiago Quesada,
Section Registrar,
Having
deliberated in private on 9 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 43155/05) 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, S.Z. (“the first
applicant”) and N.Z. (“the second applicant”), on
19 November 2005. The President of the Chamber granted the
applicants' request not to have the second applicant's name
disclosed. The President of the Chamber further decided of his own
motion to grant the first applicant anonymity pursuant to 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.
The
applicants 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 domestic court proceedings
relating to the child custody and contact arrangements had been
excessive. They further alleged, in substance under Article 8 of the
Convention that, as a result of the ineffectiveness of the
proceedings, the first applicant was prevented from having contact
with the second applicant and that the national authorities failed to
protect the interests of the second applicant.
On
2 September 2008 the President of the Third Section decided to
communicate the complaint concerning delays in the child custody and
contact arrangements proceedings to the Government. It was also
decided to examine the merits of the application at the same time as
its admissibility (Article 29 § 3).
THE FACTS
I. The circumstances of the case
A. Background of the case
The
first applicant, S.Z., is a Slovenian national who was born in 1955
and lives in Celje. The first applicant is the father of the second
applicant, N.Z.
The
first applicant lived in an unmarried partnership (zunajzakonska
skupnost) with O.Č. for several years. On 18 July 1997 their
daughter, the second applicant, was born.
Following
the separation of the first applicant and O.Č. in 2001, the
second applicant lived with O.Č., her mother.
In
2001 and 2002 O.Č. was suffering from a mental disorder and was
consequently treated in a psychiatric hospital in Vojnik. While she
was hospitalised the first applicant took care of the second
applicant.
B. Proceedings before the Civil Court concerning
custody and contact arrangements
On
22 June 2004 O.Č. brought an action in the Celje District Court
(OkroZno sodišče v Celju) seeking sole custody of
the second applicant.
On
18 August 2004 the court requested the Celje Social Work Centre
(Center za socialno delo Celje) to deliver an opinion
establishing with which parent the child's interests would be better
protected. The court received the report on 21 September 2004.
The Celje Social Work Centre informed the court that the first
applicant and O.Č. had not come to an agreement concerning the
custody issue before 22 June 2004, the date the action was brought to
the court by O.Č. It also observed that O.Č. had been
taking care of the second applicant properly and that the first
applicant had not expressed any objection to the second applicant's
staying with her mother, on condition that he was granted contact
rights. The Celje Social Work Centre also found that O. Č. was
not preventing contact between the applicants.
On
7 March 2005 the court received an additional report from the
Celje Social Work Centre. The latter informed the court that the
first applicant wished to have joint custody of the second applicant.
However, he would agree for O. Č. to be granted sole custody
only if O. Č. informed him daily about how the second applicant
was. On this occasion the Celje Social Work Centre also informed the
court that a report had been requested from the second applicant's
school as well as from O. Č.'s psychiatrist. In this
connection, on 14 March 2005, the court received a report from
O. Č.'s psychiatrist, stating that O. Č. was refusing
treatment. The psychiatrist further considered that the question of
capacity to take care of the second applicant was very complex and
that therefore only an expert in psychiatry could compile a credible
report.
Also
on 14 March 2005 the court held a hearing and decided to appoint an
expert in psychiatry.
On
17 March 2005 the first applicant requested to be exempted from
paying the court fees. On 28 March 2005 the court upheld the first
applicant's request.
On 4 April 2005 the court appointed an expert in
psychology, D.T., in order to determine which parent should be
granted custody.
Subsequently,
on 8 April 2005, O.Č. requested that the expert D.T. be relieved
of his duties since he had previously treated her medically.
On
11 April 2005 the court appointed a new expert in clinical
psychology, M.G.V.
On
9 May 2005 the court received a letter from O.Č.'s psychiatrist,
stating that O.Č., who had been suffering from a productive
psychosis, had been refusing treatment.
Relying
on that letter, the first applicant, on 8 June 2005,
requested that an interim contact order be issued pending the outcome
of the main civil proceedings.
On
20 June 2005 the expert M.G.V. submitted her report. Assisted by a
psychiatrist who was invited to participate in the examination
process, the expert observed that both parents suffered from a mental
disorder. She concluded that custody could nevertheless be granted to
O.Č. on condition that she received appropriate medical
treatment, while regular contact should be granted to the first
applicant.
Also on 20 June 2005 the court requested the Celje Social Work Centre
to inform it about the progress on the contact agreement between the
first applicant and O.Č.
On
30 June 2005 the Celje Social Work
Centre submitted a report in which it informed the court that the
first applicant had, on 6 April 2005, requested a formal contact
arrangement, claiming that O.Č. had, since 31 March 2005,
prevented him from having contact with the second applicant.
Subsequently, the Celje Social Work Centre had prepared a draft
agreement but O.Č. had refused to sign it, claiming that the
court would in any event arrange contact rights in contentious civil
proceedings. In addition, the Celje Social Work Centre informed the
court that O.Č. and the second applicant had recently moved out
of their flat and had been living in special sheltered accommodation
for homeless mothers (materinski dom).
On
5 July 2005, further to the above-mentioned report by the Celje
Social Work Centre and relying on the fact that the second applicant
had been living in sheltered accommodation, the first applicant again
requested that an interim measure be ordered granting him regular
contact with the second applicant.
Meanwhile,
on 1 July 2005, the court gave a decision concerning the expert's
fees.
On
12 July 2005 the first applicant brought a counterclaim, seeking sole
custody of the second applicant and child maintenance. He also
proposed that contact should be granted between O.Č. and the
second applicant.
On 23 August 2005 the first applicant cancelled the
power of attorney in respect of his lawyer.
On
27 September 2005 the first applicant, represented by a new lawyer,
lodged preliminary written submissions which modified and extended
his claim seeking sole custody of the second applicant and child
maintenance, granting, on the other hand, regular contact in respect
of O.Č. As an alternative, he sought regular contact with the
second applicant and also requested that other relatives have contact
with the second applicant. He moreover asked that an interim measure
be taken in respect of all his requests.
On 28 September 2005 the court held a hearing.
Subsequently, the court gave a decision, finding that the first
applicant's request concerning contact between the second applicant
and other relatives as well as his request for an interim measure to
that effect should have been considered in non-contentious
proceedings. That part of the claim was thus declared to be outside
the court's jurisdiction.
Meanwhile, on an undetermined date O.Č. lodged a
criminal complaint against the first applicant alleging sexual abuse
of the second applicant. It seems that, also on an undetermined date,
the first applicant lodged a criminal complaint against O.Č. for
neglecting the child.
On 4 October 2005 the court requested O.Č.'s
psychiatrist to inform it whether O.Č. was receiving treatment.
It further requested the Celje Social Work Centre to inform it as
regards O.Č.'s state of health and also the fact that she was
living in sheltered accommodation for homeless mothers. The court
also requested the District Public Prosecutor's Office to update it
on the progress of the criminal proceedings instituted against the
first applicant.
Subsequently, on 19 October 2005, the
District Public Prosecutor's Office informed the court that an expert
would be appointed in order to determine whether the second applicant
had been sexually abused.
On 24 October 2005 the court received a report from
O.Č.'s psychiatrist stating that O.Č. had been refusing
treatment. The psychiatrist also observed that she had been calmer
since she and the second applicant had been living in sheltered
accommodation.
On
25 October 2005 the first applicant lodged preliminary written
submissions urging the court to order the interim measure sought on
27 September 2005.
On
28 November 2005 the court rejected the first applicant's request for
an interim measure in respect of custody and child maintenance as
well as his alternative claim to have contact granted with the second
applicant (see paragraph 26 above). Nevertheless, the court, of its
own motion and in different terms, granted contact between the two
applicants (each Wednesday for one hour).
On
13 December 2005 the first applicant appealed against this decision.
On
14 December 2005 the court received a report from the Celje Social
Work Centre in which the latter observed, inter alia, that
contact between the applicants was in the child's best interest. It
further observed that contact was taking place in accordance with the
court decision of 28 November 2005.
On
5 January 2006 the Celje Higher Court (Višje
sodišče v Celju) quashed the first-instance court's
decision concerning the interim order and remitted the case for
re-examination.
On
19 and 26 January and 3 February 2006 the first applicant urged the
court to re-examine the case and order the requested interim measure.
Meanwhile,
on 24 January 2006, O.Č. lodged a preliminary written submission
in which she informed the court that her state of health had
improved. As a result, she requested the court to again appoint an
expert or to order an additional report to be drawn up. In addition,
she submitted that, since criminal proceedings had been initiated
against the first applicant, who was suspected of sexual abuse of a
minor, he should not be trusted with long-term custody of the second
applicant.
On
2 February 2006 the court scheduled a hearing. On the same day it
requested the Celje Social Work Centre to inform it, inter alia,
about the conditions in which the first applicant was living, O.Č.'s
state of health, the second applicant's performance at school, and
also to interview the second applicant. The court requested a swift
response. In addition, the court requested O. Č.'s psychiatrist
to provide information on her treatment and inquired at the District
Public Prosecutor's Office about the criminal proceedings instituted
against the first applicant. The District Public Prosecutor's Office
responded on 6 February 2006. In its report it submitted that
investigating measures against the first applicant for sexual assault
were still in progress. They also informed the court about criminal
proceedings instituted against O.Č. for fraud and forgery of
documents. The Celje Social Work Centre responded on 7 February 2006,
observing that the second applicant had expressed the wish to live
with her mother. O.Č.'s psychiatrist responded on 10 February
2006 stating that O.Č. was continuing with her treatment and
that her health had not worsened. The psychiatrist also expressed the
view that O.Č. was a good mother and was emotionally attached to
the second applicant.
In
the meantime, on 9 February 2006 the court held a hearing and
requested the Psychiatric clinic (Psihiatrična klinika) to
appoint an expert in psychiatry. Furthermore, the court issued a
decision whereby it rejected the first applicant's request for an
interim measure concerning custody and child maintenance but upheld
his subsidiary request to have contact with the second applicant.
The
decision was in the relevant part worded as follows.
“The child may see her father every Monday,
Wednesday and Friday after school. Her father is to collect her from
her mother's place at 4 p.m. and be with her until 6 p.m.
The child may also see her father every other Saturday;
her father is to collect her from her mother's place at 9 a.m. and be
with her until 6 p.m.
The child shall spend the winter holidays with her
mother, the spring holidays (prvomajske
počitnice) with her father, the
autumn holidays (krompirjeve
počitnice) with her mother, the
Christmas holidays, from 24 December to 29 December, with her father
and from 29 December to 2 January with her mother.
During the school summer holidays the child shall spend
four weeks with her father (two weeks in July and two weeks in
August)”
On
22 February 2006 O.Č. lodged a preliminary written submission in
which she submitted to the court a lease contract for the new
apartment in which she was now living with the second applicant.
On
25 April 2006, further to the court's request, the Celje Police
Station informed the court that they had dealt with several matters
concerning the second applicant. For example, O.Č. had alleged
that the second applicant had been kidnapped when she was taken out
of kindergarten by the first applicant. On another occasion she
expressed the fear that the first applicant, who wanted to take the
second applicant for a walk, would take her to an unknown
destination. As to the first applicant, he has twice alleged that
O.Č. took the first applicant away without telling him where.
On
11 and 24 May 2006 the first applicant lodged preliminary written
submissions, in which he requested to be informed of the name of the
expert appointed by the Psychiatric clinic (see paragraph 40 above).
On
15 May 2006 the court received a report from the Celje Social Work
Centre in which the latter observed that O.Č.'s apartment was
adequately furnished and clean.
On
7 June 2006 the first applicant requested the court to fine O.Č.,
since she had not complied with the court's decision of 9 February
2006 in that she had prevented contact between 27 April and 5 June
2006. On 20 June 2006 O.Č. lodged a preliminary written
submission concerning the first applicant's allegations in this
regard. She claimed that the first applicant himself did not want to
have contact with the second applicant.
Further
to the first applicant's request to fine O.Č., the court
requested the Celje Social Work Centre to draw up a report concerning
the execution of the first applicant's contact rights. The report was
submitted on 29 June 2006. The Celje Social Work Centre informed the
court that it did not keep any official records in this regard.
However, the first applicant had appeared on their premises, claiming
that on 28 April 2006 the contact had not taken place. Furthermore,
the Celje Social Work Centre informed the court that O.Č. had
been counselled by a social worker and that she had been trying hard
to ensure the healthy development of the second applicant. It appears
from the report that during counselling O.Č. had told the social
worker that the second applicant had not spent the whole period of
the spring holidays (prvomajske
počitnice) with the first
applicant. On another occasion, on 12 May 2006, O.Č. alleged
abusive behaviour by the first applicant towards the second
applicant. It seems that the first applicant took the second
applicant to the hairdresser, where they cut her hair. On 22 May
2006 O.Č. informed the Celje Social Work Centre that the contact
had taken place as agreed, but that the second applicant did not wish
to spend a night at the first applicant's place. The Celje Social
Work Centre also pointed out that fining O.Č. would be an
unnecessary burden on O.Č.'s financial situation.
On
21 August 2006 the first applicant lodged preliminary written
submissions in which he stated that O.Č. was suffering from a
mental illness and therefore had a distorted sense of reality. He
again sought sole custody of the second applicant and requested the
court to urge the appointed expert to submit a report.
On
25 September 2006 the first applicant for the second time requested
the court to fine O.Č. as she had again prevented contact, on
twenty-three occasions between 9 June and 22 September 2006.
On
5 October 2006 the appointed expert in clinical psychology, (B.Z.),
submitted his report. He found that the second applicant wished to
have unrestricted contact with the first applicant and that any
change in existing circumstances would complicate the situation.
On
25 October 2006 the court again requested the Celje Social Work
Centre and the District Public Prosecutor's Office to provide similar
information to that which had been requested on 4 October 2005 and
2 February 2006 (see paragraphs 29 and 39 above). In addition,
the court asked the Celje Social Work Centre to interview the second
applicant with a view to ascertaining where would she want to live
and whether she would want to have contact with the first applicant.
On
8 November 2006 the District Public Prosecutor's Office informed the
court that the request for a criminal investigation in connection
with the alleged sexual abuse of the second applicant had been
dismissed, but the District Public Prosecutor's Office had lodged an
appeal. All the charges against O.Č. concerning neglect of the
child were dropped.
On
4 December 2006 the Celje Social Work Centre submitted its report
concerning two interviews with the second applicant. During the first
interview, the second applicant expressed the wish to live with her
mother and to have regular contact with the first applicant, as she
loved both her parents. The second interview was not successful,
since the second applicant left the room in tears. The Celje Social
Work Centre concluded that the second applicant was vulnerable and
anxious; a psychological assessment would therefore be helpful to
her. Further, the Celje Social Work Centre informed the court that
the second applicant had been absent from school on several
occasions. As regards O.Č.'s state of health, it observed that
according to the O.Č.'s psychiatrist, her state of health had
not worsened in the last year since she had been following the
treatment.
On
5 December 2006 the first applicant lodged preliminary written
submissions. He requested the court to explain why an expert in
psychology had been appointed although the court had decided to
appoint a psychiatrist.
On
6 December 2006 the court held a hearing. It decided to transfer the
file again to the Psychiatric clinic, which submitted a report of an
expert in psychology, in contradiction to the court's decision. On
12 December 2006 the court gave a decision ordering the
Psychiatric clinic to appoint a psychiatrist. However, on 31 January
2007, the Psychiatric clinic informed the court that an expert in
clinical psychology would be appointed. Further to the court's
additional request, the Psychiatric clinic, on 22 February 2007,
finally appointed a psychiatrist, M.Z.T.
On
28 February 2007 the court again requested the Celje Social Work
Centre to enquire about the second applicant, in particular whether
she was absent from school. In its response of 13 March 2007 the
Celje Social Work Centre observed that the second applicant was no
longer absent from school and that O.Č. was taking good care of
her. In addition, it submitted that O.Č. had bought a new
apartment and that, according to O.Č., the first applicant had
not paid child maintenance for several years.
In
the meantime, on 2 March 2007 the first 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
6 March 2007 the expert M.Z.T. submitted her report. She made a
synthesis of O.Č.'s state of health: the latter had been
suffering from a paranoid psychosis and who for that reason had been
hospitalised five times between 1998 and 2007. The expert also
observed that O.Č. had been refusing treatment for a long time
and was not aware of her medical condition. In O.Č.'s interview
the latter stated that she had not allowed the second applicant to
have contact with the first applicant from 31 January 2007 on, as the
second applicant was afraid of her father. The expert further
examined the second applicant, who told her that she liked spending
time with the first applicant. The first applicant did not attend the
interview with the psychiatrist. After the examination, the expert
concluded that O.Č. had been taking good care of the second
applicant, who could be in danger only if she was exposed to the
active phase of O.Č.'s illness. However, if O.Č. followed
her treatment the prognosis would be good for her. As far as the
contact between the applicants is concerned she established that they
should continue to have contact as they have up to now, or even spend
more time together if the second applicant so wished. However, in the
expert's view, the first applicant should be more creative and should
share more activities with the second applicant.
On
26 March 2007 the court again requested the Celje Social Work Centre
and O.Č.'s psychiatrist to provide similar information to that
which had been requested on 2 February 2006 (see paragraph 39 above).
In addition, the court asked the Celje Social Work Centre to make a
recommendation as to which of the parents should be awarded custody
and to establish whether the contact the non-custodial parent,
whichever that may be, would have with the second applicant would be
in the child's best interests. The Celje Social Work Centre's report
of 23 May 2007 did not contain an answer as to which of the
parents should be awarded custody. It stated that the opinion in this
connection should have relied on the report concerning O.Č.'s
state of health.
On
30 March 2007 the court was informed that criminal proceedings had
been brought against the first applicant for endangering public
safety and against O.Č. for fraud.
On
13 April 2007 the president of the court, relying on section 5,
subsection 1, and section 6, subsection 4, of the 2006 Act, responded
to the supervisory appeal (see paragraph 56 above), stating that a
hearing would be held within four months of receipt of the
supervisory appeal, namely on 7 May 2007. In the meantime,
on 13 April 2007, the court called off that hearing since O.Č.'s
attorney was not able to keep his appointment.
Also
on 13 April 2007 the first applicant lodged preliminary written
submissions. He requested an interim measure granting him custody to
be issued immediately, while the contact between O.Č. and the
second applicant be ceased or carried out under supervision.
On
16 April 2007 the court received a report from O.Č.'s
psychiatrist, which revealed that O.Č. had been seeing her
regularly and that the medical treatment she had been following had
no impact on her cognitive or mental capacities and had therefore not
impeded her relations with the second applicant.
On
18 April 2007 the court was informed that the first applicant had
been told by the Celje Social Work Centre that it could not ensure
that contact would take place in the way the court had determined it
should. Subsequently, O.Č. lodged a written preliminary
submission, emphasising, inter alia, that she had not been
preventing contact; but that it was rather the second applicant who
had refused to have contact with the first applicant.
On
26 April 2007 the O.Č.'s psychiatrist informed the court that
O.Č.'s mental illness seemed to be developing further and that
she had been again refusing treatment.
In
the meantime, the court scheduled an informal interview with the
second applicant for 7 May 2007. However, the interview was adjourned
sine die at the first applicant's request as the second
applicant was in a state of shock owing to her mother's placement in
a mental institution two days before the interview was due to take
place. Subsequently, the court requested the mental institution where
O.Č. had been placed to inform it as to how long the treatment
would take and about her state of health when she was admitted to the
hospital. The hospital was also requested to give an opinion as to
whether O.Č. was capable of caring for the second applicant,
given her state of health before she was admitted to hospital.
The
hearing scheduled for 25 May 2007 was adjourned because the first
applicant fell ill.
However,
later on the same day and outside the hearing, the court interviewed
the second applicant. The latter told the court that she did not like
to spend time with the first applicant because there were no toys at
his place, and that she did not want to stay with him while O.Č.
was hospitalised. She preferred staying with her grandmother or her
older brother. She also said that after the first applicant took her
to the hairdresser to have her hair cut, she had refused to see him
on two occasions. She was however willing to see him in future in
order to ensure contact. Further to the interview, the court
requested the Celje Social Work Centre to find a third person willing
to step in as a foster parent as well as to prepare the second
applicant psychologically for this possibility.
In
the meantime, on 21 May 2007, O.Č. was released from the
hospital.
On
12 June 2007 the court requested the expert, M.Z.T., to draw up an
additional report. The expert was asked to interview the first
applicant and to determine whether it would be in the child's best
interest to award him custody. The court also requested the expert to
invite in the examination process an expert in psychology who should
examine and interview the second applicant. In its request the court
emphasised that the matter was very urgent.
On
16 August 2007 the expert M.Z.T. submitted an additional report by
which she informed the court that the first applicant had refused to
appear at the interview. She also observed that the second applicant
was emotionally attached to O.Č. Taking into consideration
O.Č.'s state of health and the second applicant's attachment to
her mother, the expert did not advocate placing the second applicant
in foster care. She recommended that the second applicant stay with
O.Č. and be cared for by the first applicant during acute
episodes of O.Č.'s illness.
The hearing scheduled for 29 August 2007 was called off due to the
fact that the expert in psychology had not yet been able to examine
the second applicant.
On
28 August 2007 the Celje Social Work Centre submitted a supplementary
report to the one submitted on 23 May 2007 (see paragraph 58 above)
and informed the court that O.Č. had in the meantime been
examined by her psychiatrist, who had observed a deterioration in
O.Č.'s state of mental health but however had the impression
that O.Č. was willing to follow the treatment. The Celje Social
Work Centre also informed the court that the first applicant had
failed to appear at the interview scheduled to determine whether he
could take care of the second applicant or whether the second
applicant should rather be put in foster care, to which O.Č. was
not opposed. Having regard to the fact that the first applicant
refused to appear at the interview, that he had been preventing the
second applicant from being included in the psychological assessment,
and that O.Č.'s health was not stable, the Celje Social Work
Centre concluded that the second applicant should preferably be put
in foster care.
In
September 2007, an expert in psychology, T.P., who had been invited
to join the examination process (see paragraph 69 above), experienced
difficulties in interviewing the second applicant, as O.Č. had
twice failed to keep appointments.
On
19 September 2007 the first applicant lodged preliminary written
submissions contesting the expert reports from 6 March 2007 and
16 August 2007 (see paragraphs 57 and 70 above) and requested
that an interim measure be ordered granting him custody of the second
applicant.
The
hearing scheduled for 21 September 2007 was called off
because the first applicant fell ill. The court scheduled a new
hearing for 22 November 2007.
On
11 October 2007 O.Č. appeared at the court, stating that she had
wanted to take the second applicant to the assessment but the first
applicant had prevented her from doing so and had taken the second
applicant to school.
On
7 November 2007 the Celje Social Work Centre informed the court that
the person who had been summoned to the hearing scheduled for
22 November 2007 could not attend it due to an accident. The
court immediately requested the Celje Social Work Centre to inform it
who was replacing her in the case.
On
12 November 2007 the court again requested O.Č.'s psychiatrist
to inform it whether she had been following the treatment and about
her current state of health. The court also requested information
concerning the criminal complaint lodged against the first applicant
by O.Č. for having the second applicant's hair cut. On 16
November 2007 the District Public Prosecutor's Office informed the
court that the charges against the applicant had been dropped, as the
request for prosecution made by O.Č. had been lodged out of
time. O.Č.'s psychiatrist responded on 20 November 2007. In her
letter she observed that O.Č.'s state of health had worsened
since she had moved to a new apartment, where she constantly felt
threatened.
The
second applicant was again invited to attend an interview with the
expert T.P., scheduled for 12 November 2007. However, the second
applicant again failed to appear. Subsequently, the expert suggested
interviewing the first applicant to establish whether he understood
the role of a parent and the needs of a growing child, as well as to
make a personal assessment. The expert also informed the court that
he would not be able to attend the hearing scheduled for 22 November
2007.
On
22 November 2007 the court held a hearing at which the parties
concluded a temporary settlement of the case. The first applicant was
granted provisional custody of the second applicant pending the
outcome of the proceedings, while O.Č. was granted regular
weekly contact.
On
14 December 2007 the expert M.Z.T., who had interviewed the first
applicant in the meantime, submitted an additional psychiatric
report, observing that it would be in the second applicant's best
interest to have contact with both parents, as O.Č. did not seem
to be reliable enough due to her illness, while the first applicant's
personal characteristics made him unsuitable to raise a ten-year-old
traumatised child.
Further
to the interview with the second applicant on 21 December 2007,
the expert T.P. submitted a report. He observed that the second
applicant's best interests would be ensured by placing her in foster
care, while retaining for both parents the opportunity to have
contact with her.
On
6 February 2008 the court appointed a special representative to the
second applicant (for the appointment of a special representative,
see “Relevant domestic law” below, Civil Procedure Act,
section 409) – hereinafter “the special representative”.
On
21 February 2008 the court requested information on the second
applicant's school performance and on O.Č.'s health. The second
applicant's school submitted its reply on 14 March 2008. It informed
the court that the second applicant's school performance had improved
and that the first applicant had been helping the second applicant a
lot. O.Č.'s psychiatrist responded on 21 March 2008, informing
the court that O.Č. had been seeing her regularly but refusing
treatment.
On
8 April 2008, further to the request of the special representative,
the court ordered the re-examination of the second applicant by the
expert in psychology. However, on 30 April 2008, the expert informed
the court that both applicants had failed to appear. He explained
that, having regard to the considerable documentation in the case, he
could reach conclusions even without interviewing the second
applicant. Nevertheless, he expressed willingness to interview the
second applicant if the court deemed it necessary. Further to this
information, the court did not insist on interviewing the second
applicant.
On
13 May 2008 the expert T.P. submitted an additional report. He
concluded that the first applicant seemed to be a more suitable
guardian of the second applicant than O.Č. or a foster family as
the second applicant seemed to be happy, tidy and had good grades
since she had been living with the first applicant. However, he
refused to speculate as to what extent the first applicant would be
able to offer the second applicant a warm and loving environment. On
the contrary, on 28 May 2008, the Celje Social Work Centre
submitted its report in which it came to the conclusion that neither
of the parents was suitable to be granted custody and as a result the
second applicant should be placed temporarily in foster care. In this
connection, they also indicated a suitable person.
On
29 May 2008 the court held a hearing. The first applicant and O.Č.
came to an agreement to change part of the temporary court settlement
concluded at the hearing of 22 November 2007 (see paragraph 80
above), as far as the contact between the second applicant and O.Č.
was concerned.
On
30 May 2008 the court again ordered an additional expert opinion to
be drawn up by the expert T.P. He was requested to assess the
emotional state of the second applicant as well as the relationship
between the applicants and between the second applicant and O.Č.
On
2 September 2008 O.Č.'s psychiatrist informed the court that she
had had no contact with O.Č. for several months.
On
3 September 2008 the second applicant's school informed the court
that the second applicant's school performance had improved and that
she had told her teacher that she wanted to live with the first
applicant.
Also
on 3 September 2008 the court was informed about O.Č.'s
hospitalisation in the psychiatric stabilisation unit. It appeared
that she had been taken to the hospital on 18 August 2008.
On
4 September 2008 the court held a hearing. The first applicant and
O.Č. concluded an enforceable court settlement by which the
first applicant was awarded full custody of the second applicant and
O.Č. was ordered to pay child maintenance. She was also granted
contact every weekend, on Saturdays from 9 a.m. to 4 p.m. and on
Sundays from 10 a.m. to 2 p.m.
On
23 December 2008 the applicants lodged a claim for just satisfaction
in respect of unreasonable length of proceedings with the State
Attorney's Office. Their claim contained explicit reference to
section 26 of the Constitution (see “Relevant domestic law”
below).
On
6 February 2009 the State Attorney's Office responded to the
applicants, observing that an identical claim for just satisfaction
had already been lodged with the Court. They further informed the
applicants that new domestic legislation had been enacted (“the
2006 Act”) in order to remedy any alleged unreasonable length
of proceedings. As a result, the applicants were requested to confirm
whether they wish the State Attorney's Office to examine the claim
under the 2006 Act. On 18 February 2009 the applicants responded
that the just satisfaction claim lodged with the State Attorney's
Office was only a subsidiary one and that they wished to maintain
their just satisfaction claim made before the Court. Consequently,
the State Attorney's Office dismissed their claim. The part of the
claim concerning the second applicant was dismissed because the
second applicant was not party to the proceedings in question and
could therefore not be considered a victim of the violation in
respect of the undue length of the proceedings. The State Attorney's
Office further dismissed the claim as a whole due to the fact that
the claim was made under section 26 of the Constitution, which was
from 1 January 2007, when the 2006 Act was enacted, no longer a legal
basis for a claim for just satisfaction.
II. RELEVANT DOMESTIC LAW
A. The 1991 Constitution
The relevant provisions of the
Constitution of the Republic of Slovenia (Ustava
Republike Slovenije) read as
follows:
Article
26
“Everyone shall have the right to compensation for
damage caused by the unlawful acts of a person or body when
performing a function or engaged in an activity on behalf of a state
or local authority or as a holder of public officeLP.
...”
B. Family legislation in force at the material time
On
23 April 2003 the Constitutional Court delivered a landmark
decision by which it found several provisions of the Marriage and
Familiy Relationship Act (“the MFR Act”, Zakon o
zakonski zvezi in druZinskih razmerjih,
Official Gazette SRS, no. 15/1976) concerning custody
and contact arrangements to be unconstitutional. Subsequently, an
amendment was enacted by Parliament in January 2004 (Official Gazette
of the Republic of Slovenia, no. 16/2004). It entered into force on 1
May 2004.
Further
to the above-mentioned legislative changes, the courts acquired
jurisdiction to adjudicate on these issues. Since then, parents may
reach agreements (outside divorce proceedings) in non-contentious
civil proceedings. If an agreement cannot be reached, the issue of
custody is determined in contentious civil proceedings. The issue of
contact arrangements can be determined 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 Work
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 Work 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. Contact 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
contact with the other parent...
...
The court can withdraw or limit the right to contact
only if this is necessary for the protection of the child's
interests...”
Section
106 of the amended MFR Act also states that, if the custodial parent
denies the non-custodial parent contact with the child and contact
cannot be secured with the assistance of the Social Work Centre, the
court shall, at the request of the non-custodial parent, transfer
custody to him or her if this is in the interests of the child.
Section
107 of the amended MFR Act provides, as far as relevant:
Section 107
“Minors shall be represented by their parents.
(...)
Section
113 provides that both parents shall mutually and in accordance with
the child's best interests exercise parental rights. If they cannot
reach an agreement, the Social Work Centre shall assist. It further
states that when the parents do not live together and do not have
joint custody, they shall decide mutually on all issues which are
decisive for the child's development in accordance with the child's
best interest. If they cannot reach an agreement, the Social Work
Centre shall assist. However, all questions concerning the child's
everyday life shall be decided by the custodial parent. Finally, if
the parents, even when assisted by the Social Work Centre, cannot
reach an agreement, the court decides on these issues in
non-contentious proceedings.
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.”
Lastly,
section 10a of the amended MFR Act provides that cases covered by the
MRF Act should be processed as a matter of priority.
C. 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, as amended on 15 January 2004) read as
follows:
Section 408
“In marital disputes and disputes concerning
relationships 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 custody and maintenance of
children and in disputes concerning contact between children and
parents or other persons, 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 persons mentioned
in the first paragraph, the panel may investigate matters which have
not been raised by the parties, and collect 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 this necessary for the protection of the child's interests.”
Section 410
“When deciding in disputes concerning custody and
maintenance of children and in disputes concerning contact between
children and parents or other persons, the court shall inform the
child, if he or she is able to understand and assess the meaning of
the proceedings and the consequences of the court's decision, that
proceedings have been instituted and about his or her right to
express an opinion. Taking into account the age of the child
concerned and other circumstances of the case, the sitting judge may
invite the child to be interviewed in the court's chambers or, if
necessary, outside the court, with the assistance of the of Social
Work Centre or school counsellor...”
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, make interim orders (začasne odredbe) concerning
child custody and maintenance as well as interim orders withdrawing
or restricting contact arrangements.
...”
D. The Act on the Protection of the Right to a Trial
without Undue Delay
The
Act on the Protection of the Right to a Trial without Undue Delay
(Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja,
Official Journal, No. 49/2006 – “the 2006 Act”)
has been implemented since 1 January 2007.
The
2006 Act provides for remedies to expedite pending proceedings –
a supervisory appeal (nadzorstvena pritoZba) and a motion for
a deadline (rokovni predlog). In addition to these
acceleratory remedies, the 2006 Act also provides for the possibility
of obtaining redress through a compensatory remedy, by instituting
the proceedings for just satisfaction (zahteva za pravično
zadoščenje) within nine months of the “final
resolution” of the case.
For
a detailed presentation of the 2006 Act, see Nezirović v.
Slovenia (dec.) no. 16400/06, 25 November 2008.
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 on account of delays in the court
proceedings concerning child custody and contact arrangements. They
also complain that as a result of the ineffectiveness of the
proceedings, the first applicant could not have contact with the
second applicant and that the national authorities had failed to
protect the interests of the second applicant.
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 objected to the first applicant's capacity to act on
behalf of the second applicant in the proceedings before the Court.
They submitted that at the time the first applicant lodged the
application O.Č. had custody of the second applicant, while the
first 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 O.Č., who had been
the second applicant's statutory representative, was entitled to
lodge an application on behalf of the second applicant.
The
Government further claimed that the applicants had not had victim
status as regards their complaint under Article 8 since
November 2007, when the first applicant was granted custody of
the second applicant.
The
applicants did not comment on the issue but maintained that the first
applicant was also the second applicant's statutory representative.
(b) Relevant principles
The
Court reiterates 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 the 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, his or her
standing as the natural parent suffices to afford him or her the
necessary power to apply to the Court on the child's behalf too, in
order to protect his or her interests (see, for comparison, Scozzari
and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 138,
ECHR 2000-VIII, and Siebert, cited above).
On
the contrary, 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 contact with
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 on behalf of a child (see Eberhard and M. v. Slovenia,
nos. 8673/05 and 9733/05, 1 December 2009; 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 the present case should be distinguished from the
above-mentioned cases concerning disputes between a child's custodial
and non-custodial parent. In the present case, although the second
applicant was living with O.Č. at the time the application was
lodged with the Court, no official decision granting her custody had
been adopted by the domestic courts before the date of the lodging of
the application. Moreover, on 22 November 2007, the first
applicant obtained custody of the second applicant and continues to
be her custodial parent.
In
view of the above, the Court considers that effective protection of
the second applicant's rights under the Convention requires that the
first applicant has standing to apply to the Court on her behalf too.
As far as the second limb of the Government's
objection is concerned (see paragraph 110 above) the Court firstly
notes that the applicants complained mainly about the lack of contact
between them. The Court further observes that from 22 November 2007
the first applicant was the second applicant's sole custodian and
accordingly had from that date unfettered contact with the second
applicant. In these circumstances, the Court accepts the preliminary
objection and concludes that the applicants may no longer claim to be
victims of the alleged violation of Article 8 in respect of the
period of time after 22 November 2007. This part of the application
is, in consequence, incompatible ratione personae. The
Court will therefore limit its examination of the merits to the
period before that date.
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
argued that as proceedings had been finally resolved on 4 September
2008, the first applicant, who successfully made use of the
supervisory appeal, could have initiated proceedings for just
satisfaction within nine months of the stated date, in accordance
with the provisions of the 2006 Act. However, the applicant insisted
on his request that the just satisfaction was to be awarded by the
Court. He therefore failed to make use of the available domestic
remedy, which should be considered 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 contact 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 acceleratory remedies.
In
their further observations, the Government contested the applicants'
arguments submitted in reply to the above objection (see paragraphs
124-128 below). In particular, 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 foundation. As
regards 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 extent of the damage suffered. The domestic case-law
submitted by the applicants 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 applicants under the 2006 Act, the
Government disputed all the applicants' 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. The Government also submitted a
copy of a domestic court judgement issued under the 2006 Act in one
of the cases the Court had previously declared inadmissible for being
premature (see 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 applicants' arguments
The
applicants argued that a constitutional appeal was an ineffective
remedy and submitted one case in which a decision concerning an
interim custody and contact order was challenged. The constitutional
appeal was in this case rejected as manifestly ill-founded (decision
number Up-498/08, 15 April 2008). In another case referred to by the
applicants the constitutional court dismissed on procedural grounds a
constitutional appeal concerning alleged inactivity of the court in
proceedings concerning enforcement of an interim contact order. The
Constitutional Court found that no constitutional appeal lay against
a conduct or omissions, such as a court's inactivity, but only
against legal acts issued by public authorities (decision number
Up-1044/05, 21 December 2005).
The
applicants 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. Therefore, as regards the
period before 1 January 2007, the applicants submitted that they
did not dispose of any effective remedy, which was established also
in the Court's Lukenda judgment (Lukenda v. Slovenia,
no. 23032/02, ECHR 2005 X). As far as the 2006 Act is concerned,
the applicants submitted that, according to the domestic case-law,
the 2006 Act was applicable only to proceedings instituted after 1
January 2007.
Further,
the applicants were of the opinion that the 2006 Act was an
ineffective remedy in theory and practice. They had lodged
acceleratory remedies, as provided for in the 2006 Act, but to no
avail. They 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 their contention, the applicants submitted
copies of more than a hundred decisions by which supervisory appeals
and motions for deadline lodged by the applicants' lawyer in other
unrelated cases had been rejected.
The
applicants went on to argue that a just satisfaction claim was an
equally ineffective remedy. The compensation offered by the State
Attorney's Office or awarded by the domestic courts was 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 applicants also alleged that the provisions of
the 2006 Act concerning deadlines, the requirement to refer to the
case number when instituting remedies and the provisions concerning
the courts' territorial jurisdiction made the remedies even more
difficult to use.
The
applicants further complained that in proceedings for compensation
for undue delay 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 were assessing 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 applicants
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
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
Eberhard and M. v. Slovenia, cited above, § 105). The
Court therefore rejects this objection of the Government as far as
Article 8 issues are concerned.
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 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 the case was a very complex and
sensitive one. Having regard to the serious illness of O.Č. and
the first applicant's personal characteristics, the courts needed to
collect a lot of information and opinions from different authorities.
Furthermore, the courts also had to take into consideration the
criminal proceedings instituted against the first applicant for
having committed an alleged criminal offence against the second
applicant.
The
Government also pointed out that the conduct of the first applicant
had significantly contributed to the delay. In particular, the first
applicant had not displayed enough diligence in keeping his
appointments on several occasions; he had failed to appear, either
alone or with the second applicant, at four medical examinations and
refused to respond to invitations from the Celje Social Work Centre
and the second applicant's special representative. Moreover, the
court had to adjourn several hearings because of the first applicant.
In the Government's view, the first applicant thus obstructed the
proceedings.
The
Government further pointed out that in the course of the proceedings
an interim order granting contact between the applicants had been
issued and a temporary settlement of the case granting custody to the
first applicant had been reached between the parties. According to
the Government the contact between the applicants was only
occasionally not carried out as agreed, which was due to both parties
to the proceedings. In this connection, the Government argued that in
considering measures to be taken against O.Č. for non-compliance
with the interim contact order the authorities had been guided by the
best interests of the child. For that reason the authorities
considered that imposing a fine on O.Č. would endanger her
already weak financial situation and that therefore it was not an
appropriate measure to take.
Lastly,
the Government argued that only one set of proceedings had been
conducted in this case, in which both the interim order and the main
issue were dealt with.
(b) The applicants' arguments
The
applicants submitted that the case ought to have been given priority,
as required also by the domestic legislation. Nonetheless, the
proceedings concerning the interim order as well as the first
applicant's claim to be granted custody and contact were not
conducted within a reasonable time. In addition, the applicants
claimed that despite the fact that O.Č. had been preventing
contact between the applicants, the court had failed to enforce the
interim order.
The
applicants further submitted that as a result of the ineffectiveness
of the above proceedings the first applicant had been unable to have
contact with the second applicant, which had caused irremediable
harm. Moreover, due to the court's inactivity, the second applicant
was a victim of trauma and atrocity as she had been left with her
mentally ill mother for several years.
The
applicants further submitted that all State authorities were required
to act promptly and of their own motion to protect the interest of
the second applicant. In this connection, the applicants argued that
the court should have appointed suitably qualified experts without
delay, instead of gathering irrelevant information from different
authorities, completely disregarding the seriousness of O.Č.'s
mental state.
More
generally, the applicants 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 making criminal complaints
of 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
Court notes that following the separation of the first applicant and
O.Č., the second applicant continued to live with O.Č., who
had not officially obtained custody of her child. At that point, the
first applicant did not disapprove of the second applicant staying
with her mother.
The
Court further notes that the proceedings in which O.Č. sought
custody of the second applicant were instituted on 22 June 2004.
Further to the first applicant's request of 8 June 2005, the court
granted contact by means of an interim order on 28 November 2005.
This order was subsequently quashed by the Higher Court and remitted
for re-examination. The contact was eventually determined on 9
February 2006. On 22 November 2007 the first applicant and
O.Č. reached a temporary settlement of the case, by which the
first applicant gained provisional custody of the second applicant.
As far as the final determination of custody and contact arrangements
is concerned the proceedings terminated on 4 September 2008 with
a settlement between the parties.
The
Court reiterates that, according to its previous findings (see
paragraph 118 above), it will limit its examination under Article 8
to the question as to whether the national authorities took the
necessary adequate steps to facilitate the contact only in respect of
the period between 22 June 2004 and 22 November 2007.
The
Court's first task consists in determining whether the alleged delays
in the custody and contact proceedings amounted to a breach of the
applicants' rights under Article 8. In this connection, the Court
first notes that the impugned proceedings lasted three years and five
months and two levels of jurisdiction were involved. In this period
the domestic courts considered the main issue and the first
applicant's request for an interim contact order.
The
Court would at the outset observe that there were two delays for
which the State could be held responsible. Thus, nine months elapsed
before the court held the first hearing (see paragraphs 9 and 12
above). The second delay of one year occurred in connection with the
court's difficulties in appointing an expert in psychiatry (see
paragraphs 40, 53 and 54 above). However, the facts demonstrate
considerable procedural activity of the national authorities
throughout these periods (see paragraphs 10, 11, 42, 44, 46, 50, 51
and 52 above).
The
Court further observes that, apart from the aforementioned delays,
the proceedings were in general conducted swiftly and effectively.
The courts continuously gathered relevant information (see paragraphs
10, 11, 20, 29, 39, 50, 55, 58, 65 and 78 above), appointed three
experts and scheduled eight hearings. Five hearings were held, while
two hearings were adjourned due to the first applicant's illness.
More
importantly, the first interim contact order was issued only five
months after the initial request. In the subsequent three months, the
domestic courts decided on the first applicant's appeal, quashed the
first-instance court decision and re-examined his request. The final
decision on a contact agreement was thus adopted in only eight
months.
The
Court further notes that the domestic courts were faced with a
difficult task when deciding to which parent they should entrust the
second applicant. While it eventually became clear that O.Č. was
suffering from a serious mental illness, there were also indications
that the first applicant, too, had been suffering from a mental
disorder (see paragraph 19 above). In addition, the courts were
confronted with a criminal complaint lodged against the first
applicant for sexual abuse of the second applicant as well as with
several criminal complaints concerning either the first applicant or
O.Č. Having regard also to hesitations on the part of the
experts as regards the question which of the second applicant's
parents would be more appropriate to take care of her, the Court
agrees with the Government that the case has to be regarded as
complex and sensitive, which definitely contributed to the duration
of the proceedings.
Turning
to the question whether the length of the proceedings have had impact
on the applicants' family life, the Court observes that the
applicants failed to show in which periods exactly the contact was
obstructed on account of length of the proceedings. As the case file
shows, only two short periods of poor or obstructed contact could be
discerned; from 27 April to 5 June 2006 and from 9 June to
22 September 2006 (see paragraphs 45 and 48 above). The Court
notes that the applicants also claimed that contact was obstructed in
March 2005, but there is nothing in the file corroborating these
allegations (see paragraph 21 above).
The
Court has not overlooked the first applicant's situation. Admittedly,
the absence of contact with one's child may cause considerable
suffering to the parent. However, the Court, having regard in
particular to the outcome of the proceedings, believes that the
period of at most five months of obstructed contact could not have
had irreparable consequences for the applicants' relationship (see,
by contrast, Eberhard and M. v. Slovenia,
cited above, § 139).
In
the light of the foregoing, the Court finds that in the particular
circumstances of the case and, regard being had in particular to its
complexity, the proceedings were conducted effectively and
sufficiently promptly, as required by Article 8 of the Convention.
The
Court must further determine whether, in the light of the relevant
principles of its case-law, the national authorities took adequate
and effective steps to facilitate the execution of the first
applicant's contact rights specified in the order of 9 February
2006.
The
Court firstly notes that the contact order contained a fine to be
imposed in the event of O.Č.'s non-compliance. The
Court further notes that the first applicant lodged two requests for
enforcement within the periods of allegedly obstructed contact (see
paragraphs 45 and 48 above) and that the domestic authorities
responded immediately. Thus, the Celje Social Work Centre was
requested to submit a report concerning the implementation of the
first applicant's contact rights, whereby it recommended the court
not to fine O.Č., since her financial situation was already
delicate. Leaving aside the divergence of positions between the first
applicant and O. Č. as to whether the contact took place, the
Court cannot fail to observe that the Celje Social Work Centre and
the court tried to find an adequate solution for all parties
involved.
In
the above-mentioned circumstances and having regard to the margin of
appreciation afforded to the State, the Court concludes that the
national authorities did not fail to take the necessary steps to
enforce the contact rights which could reasonably be required in the
difficult situation they had to deal with.
In
so far as the first applicant stated that living with O. Č. was
a traumatic experience for the second applicant, the Court sees no
indication that the authorities acted in disregard of the
vulnerability of the child or failed to protect her. The Court
reiterates that the domestic courts, when faced with O.Č.'s
mental illness, the second applicant's alleged sexual abuse and the
generally tense relations between the first applicant and O.Č.,
had a difficult task. Having already found that the decision-making
process, seen as a whole, provided the applicants with the requisite
protection of their interest (see paragraphs 149-156) and regard
being had to the fact that the decisions were based on relevant
reasons and supported by experts' opinions, the Court cannot find
that the Slovenian courts did not sufficiently take the best interest
of the child into account.
There
has accordingly been no violation of Article 8 of the Convention in
the present case.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
The
applicants also complained that the length of the court proceedings
concerning custody and contact 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 applicants relied on the arguments outlined in
paragraphs 119-123 and paragraphs 124-128 respectively.
The
Court notes that for the reasons set out above in paragraphs 116 and
117, the first applicant is entitled to pursue proceedings on behalf
of the second applicant also in respect of the complaint under
Article 6.
The
Court further observes that the 2006 Act
provides the opportunity to bring a claim for just satisfaction
within nine months of the final resolution of the case, provided that
the applicants have successfully used the acceleratory
remedies.
In
this connection, the Court observes that the proceedings in the
present case were finally resolved on 4 September 2008. It further
observes that the applicants lodged a just satisfaction claim, which
was dismissed for not being lodged in accordance with the 2006 Act.
The Court also notes that the applicants were requested by the State
Attorney's Office to pursue that claim, but expressly refused to do
so (see paragraphs 93 and 94 above). Therefore, the Court concludes
that the applicants failed to exhaust properly domestic remedies. In
addition, 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 applicants in the prescribed
manner.
This
part of the application must thus be rejected for non-exhaustion of
domestic remedies in accordance with Article 35 §§ 1
and 4 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Dismisses the first limb of the Government's
preliminary objection concerning a lack of the first applicant's
standing to act on behalf of the second applicant;
Declares the complaint under Article 8 of the
Convention as regards the period prior to 22 November 2007
admissible and the remainder of the application inadmissible;
Holds that there has been no violation of
Article 8 of the Convention.
Done in English, and notified in writing on 30 November 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
