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S.I. v. SLOVENIA - 45082/05 [2011] ECHR 1709 (13 October 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1709.html
Cite as:
[2011] ECHR 1709
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FIFTH
SECTION
CASE OF
S.I. v. SLOVENIA
(Application
no. 45082/05)
JUDGMENT
STRASBOURG
13 October
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 S.I. 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 6 September 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 45082/05) 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, S.I. (“the
applicant”). He lodged the application on his own behalf and on
that of his daughter and his son on 25 November 2005. The President
of the Chamber granted anonymity to the applicant of his own motion
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, Mrs T. Mihelič
Zitko, State Attorney.
The
applicant alleged that he and his children had been unable to enjoy
family life together due to the length of the custody and contact
arrangements proceedings and due to the judge’s refusal to
enforce provisional contact arrangements.
On
12 May 2010 the Court decided to give notice of the application 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 FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1951. His daughter and son were born in 1996
and 1999 respectively.
The
applicant and the mother of the above-mentioned girl and boy (“the
mother”), who were the only children she and the applicant had
together, separated in September 2003. At that time the mother moved
out of the house in which they had lived together. The children
stayed with the applicant.
On
27 October 2003 the applicant lodged a claim for custody and, as
alternative, a request for contact arrangements. He also requested
that an interim decision be issued pending final determination of the
case.
On
2 November 2003 the mother took the children to live with her.
Further to a request by the court, the Ljubljana
Welfare Office submitted a report on 7 November 2003. On the same
date the court held a hearing and issued an interim decision granting
provisional custody to the applicant. It would appear that this
decision was not enforced at that time and the children did therefore
not move to the applicant.
On 21 November 2003, at the second hearing in the
case, the mother objected to the interim decision and requested the
resumption of the previous state of affairs. Since it was established
that the mother had not received the court decision, the court
revoked it.
On 19 January 2004 the parties entered into an
agreement before the Ljubljana Welfare Office concerning the
applicant’s contact with the children. According to the
agreement, the children were to spend every Wednesday and Friday
afternoon and every other weekend with the applicant.
On
26 January 2004, the mother lodged a counterclaim for custody and a
request for an interim decision granting her provisional custody. On
the same date, as well as on 23 February 2003, the applicant also
requested the court to issue an interim decision.
Further
to the court’s request, the Ljubljana Welfare Office submitted
an additional report on 5 March 2004.
The mother prevented the applicant from having contact
with the children during the weekend of 19 to 21 March 2004, by
taking the children to her relatives. In this connection, the
applicant lodged a criminal complaint of abduction of the children,
which was dismissed as of minor importance on 9 December 2004.
A
hearing was held on 23 March 2004. Subsequently, on 30 March 2004,
the court requested a report from an expert psychologist.
On 13 April 2004 the applicant made written
submissions, in which he mentioned that since the last hearing the
mother had prevented him from having contact with the children on
Wednesday, 24 March 2004, and the weekend of 9 to 11 April 2004, but
nevertheless requested the court to suspend the proceedings, as he
and the mother might reach a settlement. On 14 May 2004,
however, he complained that the mother had not allowed him to see the
children during the Easter and May holidays and the proceedings
therefore continued.
On 31 August 2004 the expert submitted his report,
which was forwarded to the parties for comments. On 27 September 2004
the applicant informed the court that he had spent the holiday with
the children between 3 and 18 July 2004 and requested that that
an interim decision be issued.
On
8 October 2004 the court held a brief hearing, which was adjourned
for further evidence to be obtained by the court.
In
the meantime, on 8 September 2004, the court ordered the applicant to
pay the expert’s fees. He appealed against this decision and on
21 October 2004 requested the court to send the file to the
higher court for consideration of his appeal. At the same time he
again requested that an interim decision be issued.
On
10 January 2005 the case was taken up by a new judge specialising in
family matters. The applicant again urged the judge to issue an
interim decision.
The
court scheduled a hearing for 2 March 2005, which was adjourned at
the request of the applicant, stating that the parties would again
try to reach a settlement. However, on 10 March 2005 the applicant
again requested the court to issue an interim decision.
On 14 March 2005 the court held a hearing at which the
applicant complained about having only very poor contact with his
children, which was brought to the attention of the welfare office.
The applicant further explained that after the agreement had been
signed on 19 January 2004 he had had contact with the children during
the subsequent six months. After that, however, the contact was
obstructed, partly also because the agreement did not include
arrangements for contact during holidays. The applicant then
confirmed that the children had spent the weekend of 11 to 13 March
2005 with him, but that he had been prevented from spending all the
three holidays in that school year with them. The next hearing was
scheduled for 9 May 2005. However, after the applicant informed the
court that he was again unable to have contact with the children, the
court changed the date of the next hearing to 4 April 2005.
At the hearing of 4 April 2005 the applicant stated
that he had not had contact with his children on a regular basis
since 5 December 2004. The court, however, noted that the applicant
had had contact with the children on 1 April 2005, and of its own
motion issued an interim decision granting provisional custody to the
mother and setting out new provisional contact arrangements allowing
the applicant to have contact two hours per week. The applicant
objected.
On
19 April 2005 the judge held a meeting with the children.
At the hearing of 20 April 2005 the judge attempted to
reach a friendly settlement, but to no avail. On that day the court
upheld in part the applicant’s objection to the interim
decision of 4 April 2005 and issued a new interim decision setting
out provisional contact arrangements, so that the applicant was
allowed to spend with the children every Tuesday afternoon, every
second weekend, and part of the school holidays. The applicant was to
pick up the children from school and take them to the mother’s
home after the visit. The decision also included a provision that
failure to comply with the contact arrangements would result in a
fine of 100,000 Slovenian tolars (SIT).
The
parties appealed. Consequently, the court sent the file to the higher
court and requested priority treatment.
On 19 May 2005 the Ljubljana Higher Court dismissed
appeals against the interim decision of 20 April 2005 and an appeal
by the applicant against the decision of 8 September 2004 concerning
expert fees. The applicant lodged an appeal on points of law which
was declared inadmissible by the Ljubljana District Court. The
applicant appealed against this decision.
After 14 July 2005 the mother started to prevent the
applicant’s contact with the children. On 11 August 2005 she
also lodged a criminal complaint against the applicant for neglect
and maltreatment of a minor. The criminal complaints related to an
incident when the applicant allowed his daughter to read a book by
Melissa Panarello, 100
Strokes of the Brush Before Bed. The
public prosecutor requested the court to undertake certain
investigating measures, such as questioning the applicant. The
criminal complaint was subsequently dismissed as unfounded on 2 March
2006. The public prosecutor noted that the daughter, who read only a
few pages, was not pushed by the applicant to read the book, which
was intended for teenagers.
On
1 August 2005 the applicant attempted to pick up the children from
their mother’s home to take them for the scheduled holiday. As
the mother refused to comply with the interim decision of 20 April
2005, the court issued a decision on the same day, stating that the
applicant’s contact with the children during the holiday should
be secured by removing the children from whoever they were with on
1 August 2005. Further to the delivery of this decision the
enforcement was attempted. It failed, however, as the mother informed
the welfare officer that she had lodged a criminal complaint against
the applicant (see paragraphs 28 above).
Consequently, the welfare officer advised the enforcing officer to
discontinue the enforcement (see paragraph 54,
section 238f, above).
On 2 August 2005 the court made inquiries about the
allegations made against the applicant to the relevant prosecutor’s
office, the police and the welfare office.
Due
to the pending appeal (see paragraph 27 above)
the case was sent to the higher court on 12 August 2005.
On
22 August 2005 the mother objected to the enforcement decision of 1
August 2005. Her objection was dismissed on 12 September 2005.
On
24 August 2005 the mother requested that the provisional contact
arrangements be modified so that the applicant could only have very
limited contact with the children, under the supervision of the
welfare office.
On 31 August 2005 the Ljubljana Higher Court rejected
the applicant’s appeal against the first-instance decision
dismissing his appeal on points of law.
On 31 August and 8, 12 and 14 September 2005 the
applicant lodged requests for fines to be imposed for non-compliance
by the mother with the contact arrangements of 20 April 2005,
amounting to SIT 800,000 in total. He also urged the court to issue a
new interim decision.
A hearing was held on 23 September 2005. According to
the transcript of the hearing, the applicant told the judge that he
had not had any contact with the children since 14 July 2005. The
mother said that the applicant had, during the holiday of 1 to 14
July 2005, allowed the daughter to read an inappropriate book, which
the applicant denied, saying that the daughter had taken the book as
it had an interesting cover page but had not read it (see paragraph
28 above). The applicant was then asked by the
judge if he would agree with the mother’s proposal to have
contact supervised by the Ljubljana Welfare Office. He agreed at
first. However, his representative then stated that the applicant
believed that it would be unpleasant for the children to have contact
with him under supervision. The judge then appointed an expert in
psychology to prepare a new report and stated that she would not
issue any decisions imposing fines, due to new circumstances which
required the preparation of a new expert report. She further stated
that the imposition of monetary fines would be a less severe sanction
than removal of the children by force, which had already failed, and
would not be reasonable in view of the fact that the applicant was
not paying the full amount of maintenance.
On
27 September 2005 a new expert psychologist was appointed.
On 2 November 2005 the applicant lodged a
constitutional appeal, complaining that the judge had arbitrarily
refused to decide on his enforcement requests, depriving him of the
opportunity to appeal. On 21 December 2005 the Constitutional
Court, relying on section 50 of the Constitutional Court Act,
dismissed the appeal, finding that it did not concern a specific
decision of a State body, and noted that “there was no right to
lodge a constitutional appeal directly against the act or omission of
the State authorities.”
On
2 November 2005 the applicant requested that the provisional contact
arrangements be modified and on 16 January 2006 he lodged a new
request for an interim decision.
On
23 November 2005 the judge held a meeting with the expert and then
decided also to appoint a psychiatrist to examine the parents.
On
9 December 2005 the applicant requested the judge to step down. The
request was rejected by the president of the court on 27 December
2005.
On 12 January 2006 the psychiatrist’s report was
sent to the parties for comments.
In the period between 26 September 2005 and 20 January
2006 the applicant lodged further four requests for fines, in a total
sum of SIT 2,700,000, to be imposed on the mother for her
non-compliance with the contact arrangements in the period between 20
September 2005 and 17 January 2006.
At the hearing of 27 January 2006 the court questioned
the experts. The court noted that according to the expert reports
both parents were suitable for parenting. It also issued a new
interim decision modifying the provisional contact arrangements so
that the applicant had a right to spend every other weekend with the
children (from Friday to Monday) and every Thursday afternoon and a
part of upcoming holiday. The court prohibited the mother from
picking up the children from school on the days that they were
supposed to be with the applicant. The representative of the
applicant confirmed at the subsequent hearings that these contact
arrangements were being complied with by the mother.
The
mother was ordered to pay the expert’s fees. She appealed,
unsuccessfully.
At the hearing of 24 April 2006 a conditional
settlement was prepared at the proposal of the applicant. At the next
hearing, on 29 May 2006, the applicant’s representative
confirmed that the applicant and the children had had regular
contact, in line with the latest contact arrangements. The parties
agreed that they would terminate the pending criminal proceedings
they had instituted against each other.
On 14 June 2006 the court held a hearing at which the
applicant again confirmed that contact arrangements were being
complied with.
On
23 October 2006 the expert report was supplemented at the request of
the court.
On 15 November 2006 the parties reached an agreement
on custody and contact rights. The agreement provided that the mother
had sole custody of the children and set out contact arrangements for
the applicant and the children who were to spend every Thursday
afternoon, every other weekend (from Friday to Monday) and half the
school holidays together.
In the course of the proceedings the applicant, in
addition to the criminal complaint mentioned above (see paragraph 14
above), lodged a number of further criminal complaints against the
mother concerning criminal offences of, inter alia, child
abduction and sexual violence against a minor. The mother also lodged
two criminal complaints against the applicant. One of them concerned
abduction, the other concerned alleged neglect and maltreatment of a
minor (see paragraph 28 above). All criminal
complaints were ultimately dismissed by the public prosecutor.
II. RELEVANT DOMESTIC LAW
As
regards the relevant provisions of domestic family law see Eberhard
and M. v. Slovenia, no. 8673/05 and 9733/05, §§ 63-73,
1 December 2009. In addition, the following legislation is
relevant to the present case.
Article
23 of the Slovenian Constitution (Ustava Republike Slovenije,
Official Gazette no. 33/91-I with amendments) provides, in so far as
relevant, as follows:
“Everyone has the right to have
any decision regarding his rights, duties and any charges brought
against him made without undue delay by an independent, impartial
court constituted by law.
...”
The Civil Procedure Act (Zakon o pravdnem postopku,
Official Gazette no. 26/1999 with amendments) provided, in so far as
relevant:
Section 363
“(1) An appeal is allowed against any
first-instance decision, unless a law provides otherwise.
...”
Section 408
“(1) 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 ...
(2) In disputes concerning the custody and
maintenance of children and in disputes concerning contacts 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 when no request has been made.
(3) For the protection of the interests of
the persons mentioned in the first paragraph, the panel may
investigate matters not presented by the parties, and collect
information necessary for a decision ...”
Section 411
“(1) 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 decisions concerning
child custody and maintenance as well as interim decisions
withdrawing or restricting contact rights and determining contact
arrangements.
...”
The Execution of Judgments and Insurance of Claims Act
(Zakon o izvršbi in zavarovanju, Official Gazette no.
51/1998 with amendments) provided, as far as relevant:
Section 9
(Legal remedies)
“(1) An appeal is allowed against any
first-instance decision, unless a law provides otherwise.
...”
Section 15
(Application of the provisions of the
Civil Procedure Act)
“In enforcement proceedings provisions of the
Civil Procedure Act should apply, unless a law provides otherwise.”
Section 226
(Acts which shall be performed by a
defaulter only)
“(1) If a person under obligation
(dolZnik) [“the defaulter”] is obliged to do
something specified under the enforcement provision of a decision,
and which cannot be done by anyone else, the court shall issue a
decision setting a deadline for the fulfilment of the obligation.
(2) In an enforcement decision, the court
shall set out a fine for the eventuality that the defaulter does not
fulfil the obligation within the time-limit set by the court. ....
(3) If the defaulter does not fulfil the
obligation, the court shall order ex officio execution based
on the decision imposing a fine. At the same time, the court shall
issue a new decision setting a new deadline for the fulfilment of the
obligation, and a new fine, higher than the one previously imposed,
in the event that the defaulter fails to comply again.
...
(5) When determining the fine the court
should take into account the importance of the act that should be
performed by the defaulter and other circumstance of the case.”
Section 238b
(Request for enforcement and
decision)
“...
(3) The court is not bound by the requested
means of enforcement.
(4) When it is necessary for protection of
the child’s interests the court can change the means of
enforcement provided for in the enforcement order.”
Section 238f
(Enforcement of the decision
concerning contact arrangements)
“(1) A court’s decision
concerning the right to have contact with a child shall be enforced
in accordance with first, second, third and fifth paragraph of
section 226 of this Act.
(2) In exceptional and particularly justified
cases, when this would be necessary for the protection of the child’s
interests and the enforcement mentioned in the preceding paragraph
was unsuccessful, the court may allow the enforcement as prescribed
in section 238e of this Act [direct removal].
(3) Provisions of sections 238a, 238b and
238c [which concern the enforcement of custody decisions] should be
used mutatis mutandis in these proceedings.
(4) If, during the enforcement under the
second paragraph, the enforcing officer observes that the child
opposes the contact ... and finds that the enforcement by means of
removing the child would not be in the child’s interest, he or
she can discontinue the procedure and inform the court about the
reasons.
(5) If the court establishes that the child
opposes the contact ..., and finds that the enforcement by means of
removal of the child would not be in the child’s interest ...
it can, at the request of the enforcing officer ... or the person
against whom the enforcement is carried out, suspend the enforcement
for three months at most.
(6) The court can suspend the enforcement at
the request of the welfare office or the person against whom the
enforcement is conducted also when the proceedings for a modification
of contact arrangements are pending or if the enforcement would be
against the child’s interests.”
Section 272
(Conditions for interim decision)
“(1) The court shall issue an interim
decision in order to protect a non-pecuniary claim, if the claimant
shows that he the claim is likely to be established ...”
Section 278
(Revocation of an interim decision)
“...
(2) At the request of the debtor, the court
should discontinue [enforcement] proceedings and invalidate the
actions already taken if the circumstances on the basis of which the
interim decision had been adopted have changed so that the interim
decision is no longer needed.”
Finally, section 50 of the Constitutional Court Act
(Zakon o ustavnem sodišču,
Official Gazette no. 15/1994 with amendments), provides, as far as
relevant:
“(1) Due to a violation
of human rights or fundamental freedoms, a constitutional complaint
may, under the conditions determined by this Act, be lodged against
individual acts by which state authorities, local authorities, or
holders of public powers decided on the rights, obligations, or legal
entitlements of individuals or legal entities.
...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicant complained on his own and his children’s behalf that
they had been unable to enjoy family life together due to the length
of the custody and contact arrangements proceedings and due to the
judge’s refusal to enforce provisional contact arrangements. He
invoked Article 6 § 1 of the Convention. Being
the master
of the characterisation
to be given
in law to the facts of any case before it, the Court considers that
these issues fall to be examined solely under Article 8 of the
Convention (see V.A.M. v. Serbia, no.
39177/05, § 115, 13 March 2007, and KaradZić v. Croatia,
no. 35030/04, §§ 33-63 and 67 , 15 December 2005).
Article
8 reads as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
A. Admissibility
The Government argued that the applicant had no
standing to pursue this complaint on the behalf of the children, as
the mother was their statutory representative. The applicant
contested this argument.
The Court notes that the decision of 7 November 2003
by which the applicant was granted the custody of the children was
revoked (see paragraphs 9 and 10
above) and that the mother has had sole custody of them on the basis
of the interim decision of 4 April 2005 (see paragraph 23
above) and, finally, the agreement (see paragraph 49
above).
Having regard to the fact that the mother had sole
custody rights in respect of the children when the application was
lodged with the Court and that situation has not changed since then,
the Court concludes that the applicant has no standing to act on the
children’s behalf (see Eberhard and M., cited
above, §§ 89 and 90; Sahin v. Germany (dec.),
no. 30943/96, 12 December 2000, and Petersen v.
Germany (dec.), no. 31178/96, 6 December 2001).
The
Court notes that this part of the application, in so far as it
concerns the applicant, is not manifestly ill-founded within the
meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) Delays in the proceedings
The applicant argued that he had often been unable to
see his children due to the delays in the proceedings. He submitted
that the case was of no particular complexity and that he had not
contributed to the length of the proceedings in any significant way.
He lodged a request for withdrawal of the judge as this was the only
possibility he had after the problematic hearing of 23 September
2005. As regards the issue of the mother’s address, he argued
that this was the court’s responsibility, not his. In addition,
the attempts to settle the case as well as the lodging of the appeal
on point of law did not cause any significant delays.
The Government argued that the proceedings concerned
were of a complex nature, which was due in particular to the ongoing
mutual conflict between the parents, the criminal complaint lodged
against the applicant and the need to appoint three experts. In
addition, the court made two interim decisions and adopted several
procedural decisions, many of which were challenged by the parties.
The Government also maintained that the applicant had
contributed to the length of the proceedings by not providing a
correct address for the children’s mother at the beginning of
the proceedings, by twice requesting adjournment of proceedings in an
attempt to reach a settlement with the mother, and by lodging an
appeal on points of law which was not an available remedy.
(b) Non-enforcement of the interim
decision
The applicant argued that the court had acted
unlawfully and arbitrarily by not enforcing the interim decision of
April 2005. As a consequence the applicant had been unable to have
any contact in line with the interim decision of 20 April 2005
in the period between 20 May 2005 and 15 November 2006. In his
view, an interim decision which could not be enforced was futile. In
the present case the court was not passive, but deliberately refused
to enforce the interim decision in question. Had the court believed
that there were justified reasons for prohibiting contact it should
have issued a new interim decision including the reasoning. By simply
not enforcing the decision, the court also deprived the applicant of
any opportunity to appeal. The applicant lodged a constitutional
appeal against the conduct of the judge, but to no avail.
The Government submitted that the court issued an
interim decision in the present case because the agreement before the
welfare office was not enforceable. They were of the opinion that the
non-enforcement of the interim decision caused an interference with
the applicant’s family life. The interference was however
lawful and proportionate.
The Government further submitted that judges deciding
in family-related disputes had extensive discretionary powers in
order to protect children’s best interest. In this connection,
they referred to section 411 of the Civil Procedure Act and sections
15, 272 and 278 (2) of the Execution of Judgments and Insurance of
Claims Act. Having doubts as to whether the applicant’s contact
with his children was in their interest, the court had to postpone
any decision as to the enforcement or modification of the interim
decision until new expert reports had been prepared. At that time the
applicant refused to accept an option to have contact with his
children under the supervision of the welfare office. The Government
moreover maintained that the court modified the interim decision
immediately after the report was submitted. The judge’s refusal
to enforce the decision was therefore of a temporary nature and
necessary for the protection of the children’s interest and was
proportionate.
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). 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, and Fuşcă
v. Romania, no. 34630/07, § 34, 13 July 2010).
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
v. Finland, 23 September 1994, § 58, Series A no. 299 A,
and Ignaccolo-Zenide, cited above, § 96). 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 non-resident
parent (see Ignaccolo Zenide, cited above, § 102,
and Fuşcă, cited above, § 37). 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, and Eberhard and M, cited above, § 143).
3. The Court’s assessment
(a) Delays in the proceedings
The
Court notes that the applicant, on 27 October 2003, instituted
proceedings seeking custody and, alternatively, contact arrangements
concerning his children, then aged seven and four. In November 2003
the children began living with their mother. The applicant’s
contact with the children was to be regulated by the court, to which
the applicant repeatedly submitted requests for determination of
contact arrangements. The court’s decision, even though it was
of an interim nature, was essential in that it would, unlike the
agreement of 19 January 2004 (see paragraph 11
above), allow for enforcement of contact.
The
Court cannot but observe that the conduct of the proceedings was
clearly influenced by the animosity between the parties, who also
instituted several sets of criminal proceedings against each other
(see paragraphs 14, 28, 30
and 50 above). It agrees with the Government
that the case was of a certain complexity, which is also demonstrated
by the fact that three expert reports and a welfare office report
were prepared at the request of the court. However, while in the
period after 14 March 2005 the domestic court was active throughout
the proceedings, scheduling hearings on a regular basis, the same was
not true for the earlier period. In particular, the Court notes that
between the second hearing, which was held on 21 November 2003,
and the fifth hearing, on 14 March 2005, no significant steps, apart
from the appointment of an expert in psychology, were taken. As a
result, the first interim decision setting out provisional contact
arrangements was issued a year and a half after the request to that
effect was made by the applicant (see, by contrast, Z. v.
Slovenia, no. 43155/05, § 152,
30 November 2010, and Trdan and Ć. v. Slovenia,
no. 28708/06, § 94, 7 December 2010).
Considering that the requests concerning contact with young children
should be given utmost priority, the Court finds that the facts to
which the Government referred (see paragraphs 63
and 64 above) are not sufficient to justify the
aforementioned delay.
The
Court notes that the applicant had been able to have access to his
children in certain periods before the interim decision was issued.
It would, however, emphasise that between 21 November 2003 (see
paragraph 10 above) and 20 April 2005 (see
paragraph 25 above) his contact with the
children depended on whether the mother would allow it to take place
as no binding decision had been issued by the court to facilitate the
contact despite the numerous requests lodged by the applicant to that
effect.
(b) Non-enforcement of the interim
decision
The
Court notes that the domestic court on 20 April 2005 issued an
interim decision setting out provisional contact arrangements as well
as determining the means of enforcing them, which was by imposition
of a fine if the mother failed to comply with the arrangements (see
paragraph 25 above). On 15 July 2005, despite
the interim decision, the mother started to prevent any contact
whatsoever. Consequently, the applicant lodged four requests for
enforcement by 14 September 2005 (see paragraph 35
above). At the hearing of 23 September 2005 the judge refused to
enforce the decision, as she considered that recent circumstances
required the preparation of a new expert report and that the
enforcement by imposition of a fine would in any event not be
reasonable (see paragraph 36 above).
The
Court understands the need for certain discretionary powers of judges
in family-related disputes, with the aim of protecting children’s
best interests. It also appreciates that for the aforementioned
reason the domestic law provided that decisions could be issued by
the judges on their own initiative, without any formal request being
lodged by the parties. That said, the Court notes that the applicant
alleged that the judge, instead of using the means provided by law,
overstepped the powers entrusted to her.
The
Court observes that had the judge considered that the interim
decision of 20 April 2005, which was in any event temporal in nature,
was no longer a valid one, she could have changed it or, if
appropriate, have issued another kind of decision as stipulated by
the domestic law (see paragraphs 53 -54
above). The Government adduced no reasons as to why the judge should
or could not have proceeded in that way in the present case. The
judge, by merely saying that the enforcement would not be ordered,
which was not an option provided in the domestic legislation, in
effect declined to take a formal and reasoned decision on the issue
(see, mutatis mutandis, Marini v. Albania, no. 3738/02,
§§ 118-22, ECHR 2007 XIV (extracts)). As a result, the
applicant was also deprived of any opportunity to bring the issue to
a higher court. Such an opportunity would normally have been open to
him had there been a formal decision by the first-instance court (see
paragraphs 53 -54 above).
It
is true that the applicant when asked at the hearing of 23 September
2005 if he would agree with the mother’s proposal to have
contact supervised declined this option. This, however, did not
absolve the authorities to conduct the proceedings so as to afford
due respect to the interests safeguarded for the individual by
Article 8 (see, mutatis mutandis, McMichael v. the United
Kingdom, 24 February 1995, §§ 86-7, Series A no. 307
B, §§ 86-7, and Buckley v. the United Kingdom, 25
September 1996, § 76, Reports of Judgments and Decisions
1996 IV).
The
Court moreover observes that further enforcement requests made after
the hearing of 23 September 2005 and before the new interim decision
was issued (see paragraph 43 above) remained
unanswered. As a result, the applicant did not have any contact with
the children until 27 January 2006, when the court issued a new
interim contact decision. The Court notes that the applicant,
although alleging otherwise in his submissions to the Court (see
paragraph 65 above), was able to have regular
contact with his children following the interim decision of 27
January 2006 (see paragraphs 46 and 47
above).
Lastly,
the Court notes that having had no other means to challenge the
judge’s conduct, the applicant applied to the Constitutional
Court. The latter declared his appeal inadmissible on the grounds
that it did not concern a specific decision of a State body (see
paragraph 38 above). It is not the Court’s
function to express an opinion on the interpretation of domestic law,
which is primarily for the national courts to interpret (see
Lambert v. France, 24 August 1998, § 37, Reports of
Judgments and Decisions 1998 V). However, it notes that the
interpretation of section 50 of the Constitutional Court Act (see
paragraph 55 above), to allow constitutional
appeals only against formal decisions of State bodies, excludes cases
which may give rise to a violation of rights enshrined in the
Convention as well as the Slovenian Constitution by means of act or
omission, including a refusal to take a decision, as demonstrated by
the present case.
(c) Conclusion
The
Court concludes that the Slovenian authorities, for the reasons
stated above, failed to meet their obligations arising from Article 8
of the Convention in the proceedings concerning child custody and
contact rights in the period prior to 27 January 2006. There has
consequently been a violation of Article 8 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION
In
his submissions of 26 November 2008, the applicant complained also
about the breach of Article 9 of the Convention alleging that due to
lack of contact he was unable to provide religious education for his
children. It is noted that the impugned proceedings ended on 15
November 2006 (see paragraph 49 above) and that
this complaint was therefore introduced outside the six-month
time-limit provided in Article 35 § 1 and should thus be
rejected under Article 35 § 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 180,000 euros (EUR) in respect of non-pecuniary
damage.
The
Government contested the claim.
Ruling
on an equitable basis, the Court awards the applicant EUR 4,000
in respect of non-pecuniary damage.
B. Costs and expenses
The
applicant also claimed EUR 8,000 for the costs and expenses incurred
before the domestic courts and EUR 2,500 for those incurred before
the Court.
The
Government disputed both claims. As regards the costs and expenses
incurred before the Court, the Government argued that the claim was
not justified by the statutory domestic rates concerning attorney’s
fees.
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. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
rejects the claim for costs and expenses in the domestic proceedings.
As regards the proceedings before the Court, it reiterates that it
does not consider itself bound by domestic scales and practices,
although it may derive some assistance from them (see, among many
other authorities, Tolstoy Miloslavsky v. the United Kingdom,
13 July 1995, § 77, Series A no. 316-B, and Başkaya and
Okçuoğlu v. Turkey [GC], nos. 23536/94 and
24408/94, § 98, ECHR 1999-IV). In the present case, however, the
applicant neither explained his claim by the reference to the
statutory domestic scale (see Gaspari v. Slovenia,
no. 21055/03, §§ 81-3, 21 July 2009) nor did he submit
any supporting documents or detailed information which would show
that the costs claimed have been actually and necessarily incurred.
The Court therefore also rejects this claim.
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
Declares unanimously the complaints concerning
delays in proceedings regarding child custody and contact
arrangements and non-enforcement of provisional contact arrangements,
examined under Article 8 of the Convention, which the applicant
lodged on his own behalf, admissible and the remainder of the
application inadmissible;
Holds by five votes to two that there has been a
violation of Article 8 of the Convention;
Holds by five votes to two
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 4,000 (four thousand
euros) plus any tax that may be chargeable in respect of
non-pecuniary damage;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses unanimously the remainder of the
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 13 October 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean Spielmann Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the dissenting opinion of Judge Fura
joined by Judge Power is annexed to this judgment.
D.S.
C.W.
DISSENTING OPINION OF JUDGE FURA JOINED BY JUDGE POWER
I
voted against finding a violation of article 8. These are my reasons.
My
starting point is that the national judge is better placed than the
international judge to decide in cases about family life in general
and parental rights in particular. It is a delicate exercise to
balance all rights involved including the best interests of the
children. In this area the States enjoy a wide margin of
appreciation.
The
majority observes concerning the delays that the court proceedings on
the domestic level were influenced by the animosity between the
parties but that the court was active, at least periodically (see
paragraph 71). In particular the delay in issuing the first interim
decision setting out provisional contact arrangements was not
justified in the eyes of the majority. I am not convinced.
It
is clear from the facts that the parents were not in disagreement all
the time. On several occasions they managed to enter into agreements
about the applicant’s contact with the children or at least
negotiate with the aim of reaching a settlement (see paragraphs 11,
16 and 21). Under those circumstances the court proceedings were
suspended and scheduled hearings were adjourned on the request of the
applicant. A more proactive attitude from the domestic court would
not have been helpful.
When
the majority goes on to criticize the domestic judge for overstepping
her powers (see paragraphs 73-74) I respectfully disagree. The judge
acted exactly as a conscientious and professional judge should. She
used her discretion to order another expert opinion to be absolutely
sure that whatever was decided would be in the best interest of the
children. This decision does not come across as arbitrary or
disproportionate.
Now,
several years later and with the benefit of hindsight, to pronounce
what the judge ought to have done instead (see paragraph 75) goes too
far. This amounts to an attempt
to micromanage from Strasbourg what is best done
on the domestic level, as required by the principle of subsidiarity.
Finally
the argument put forward by the majority in paragraph 78 that the
interpretation of article 50 of the Constitutional Court Act
effectively barred the applicant from access to court and thus being
in violation of his Convention rights and constitutional rights is
not only speculative but also beside the point. The complaint is
examined under article 8, not article 6.
In
conclusion there has been no violation of article 8 since the
domestic authorities did what was expected of them to meet the
standards of the Convention, no more, no less.
