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THIRD
SECTION
CASE OF
TRDAN AND Ć. v. SLOVENIA
(Application
no. 28708/06)
JUDGMENT
STRASBOURG
7 December 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 Trdan and Ć. 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 16 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 28708/06) against the Republic
of Slovenia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Slovenian nationals, Mr Andrej Trdan and Ć.
(“the applicants”), on 15 June 2006. The
President of the Chamber decided of his own motion to grant the
second 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.
- On
24 June 2009 the Court
decided to communicate the application to the Government. Under the
provisions of Article 29 § 3 of the Convention, it decided to
examine the merits of the application at the same time as its
admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants are father and son. The first applicant was born in 1969
and lives in Ribnica. The second applicant was born in 2005 and lives
in Ljubljana.
- The
first applicant was in a relationship with S.Ć.
The relationship ended four months before the second applicant
was born. The first applicant acknowledged the child by signing a
statement on paternity with the Ljubljana Administrative Unit
(Upravna enota Ljubljana). The second applicant's mother S.Ć.
never gave her consent to the above-mentioned statement.
- On
10 February 2006 the first applicant brought an action with the
Ljubljana District Court (OkroZno sodišče v Ljubljani)
for custody and determination of paternity. He also lodged a request
for an interim measure ensuring him contact with his son pending the
outcome of the main proceedings. Moreover, he requested the
appointment of a special representative to represent the second
applicant and to be exempted from paying court fees.
- On
17 February 2006 the Ljubljana District Court issued a decision
rejecting the request for an interim measure. The court stated that
the question of paternity should be resolved before such measure
could be applied. The first applicant appealed.
- On
5 March 2006 and 5 April 2006 the first applicant lodged two requests
for a hearing to be set and for the matter to be resolved promptly.
- On
12 April 2006 the Ljubljana Higher Court (Višje sodišče
v Ljubljani) issued a decision upholding the appeal and remitting
the question of provisional contact arrangements for re-examination.
- On
9 May 2006 the first applicant lodged a supervisory appeal
(nadzorstvena pritoZba) with the Ministry of Justice
(Ministrstvo za pravosodje), complaining that the judge's work
in the case was slow and ineffective.
- On
10 May 2006 the first applicant lodged preliminary submissions and a
reply to the counterclaim lodged by S.Ć. on 21 March 2006.
- On
17 May 2006 Ljubljana District Court issued the first interim contact
order allowing the first applicant to have contact with the second
applicant once a week for two hours. The order was immediately
enforceable, as appeals do not stay the enforcement of such orders.
S.Ć.
lodged an objection.
- On
24 May 2006 the Ljubljana Moste Polje Welfare Authority (Center za
socialno delo Ljubljana Moste Polje) issued a decision appointing
a curator ad litem to represent the second applicant.
- On
25 May 2006 the Ljubljana District Court sent a report to the
Ministry regarding the progress in the case following the first
applicant's supervisory appeal.
- On
2 June 2006 the first applicant lodged an appeal against the order on
provisional contact arrangements issued on 17 May 2006. He claimed
that S.Ć. and her father had prevented him from visiting the
second applicant and had threatened him with physical violence. He
requested the first-instance court to modify the interim contact
order concerning the enforcement by setting a fine in the event of
non-compliance to ensure contact with the second applicant.
- On
8 June 2006 the first applicant lodged a request for priority
treatment, claiming that he had again been prevented from seeing the
second applicant. He also lodged a complaint (ustna ovadba)
with the police.
- On
14 June 2006 Ljubljana District Court set a hearing for 5 July 2006.
The first applicant requested that the hearing be set earlier.
- On
15 June 2006 Ljubljana District Court issued a decision exempting the
first applicant from paying court fees.
- On
16 June 2006 the first applicant requested the hearing to be
rescheduled, which was refused.
- On
5 July 2006 the Ljubljana District Court held a hearing regarding
provisional contact arrangements and the objection of S.Ć. to
the order of 17 May 2006. The court issued a new contact order
of its own motion pending the resolution of the case. The court
allowed contact between father and son twice a week under the
supervision of a social worker. It also set out a fine of 50,000
Slovenian tolars (SIT) (approx. 200 euros (EUR)) to be imposed in the
event of non-compliance. On the same day a partial judgment was
issued establishing that the first applicant was indeed the
biological father of the second applicant. The parents also resolved
the issue of alimony by signing a court settlement.
- On
13 July 2006 the first applicant lodged an appeal challenging both
interim contact orders (see paragraphs 12 and 20 above) by requesting
more frequent contact.
- On
6 September 2006 Ljubljana Higher Court quashed both appeals.
- On
27 November 2006 the first applicant lodged a request for a new
interim contact order, requesting more frequent contact.
- On
6 December 2006 Ljubljana District Court rejected the first
applicant's request and issued an order of its own motion, allowing
contact under new terms. The court allowed contact twice a week
without supervision and every other Saturday and fixed an arrangement
for Christmas holidays. The court set a fine of SIT 50,000 (approx.
EUR 200) in the event of non-compliance. S.Ć.
lodged an objection.
- On
4 and 5 January 2007 the first applicant lodged two requests with
Ljubljana District Court for imposition of a penalty or use of
physical force to enforce the order, since S.Ć
was not respecting the interim contact order and was obstructing the
applicant's visiting rights. The first applicant stated that the
visits had been obstructed on nine occasions between 16 December 2006
and 2 January 2007. It transpires from the case-file that the second
applicant was frequently ill between December 2006 and February 2007
and was hospitalized on 26 February 2007.
- On
7 February 2007 the first applicant lodged a supervisory appeal in
accordance with the provisions of the Act on the Protection of the
Right to a Trial without Undue Delay (“the 2006 Act”).
- On
14 February 2007 Ljubljana District Court held a hearing regarding
contact arrangements and rendered a decision, rejecting S.Ć.'s
objection to the decision issued on 6 December 2006; the decision
therefore remained in force (see paragraph 24 above). Both parties
appealed.
- On
27 February 2007 Ljubljana District Court issued a decision
appointing an expert in psychology in order to determine which party
to the proceedings should be granted custody. On the same day,
following an unsuccessful contact, the first applicant lodged a
complaint with the police against S.Ć. accusing her of abduction
of a minor. It transpires from the case-file that the first applicant
lodged at least ten such complaints during the proceedings.
- On
2 March 2007 Ljubljana District Court issued a decision, rejecting
the first applicant's requests from 4 and 5 January 2007 as
unsubstantiated. The court found that the contact visits had been
obstructed or prevented mainly because of the child's illness, and
that the first applicant had not made an attempt to reschedule as set
out in the interim order. The first applicant appealed.
- On
7 March 2007 the supervisory appeal was rejected as unfounded (see
paragraph 26).
- The
second applicant was again hospitalized between 7 May 2007 and 10 May
2007.
- On
9 May 2007 Ljubljana Higher Court issued a decision quashing the
decision of 6 December 2006 (see paragraphs 24 and 27 above) and
rejected the first applicant's request for a new interim contact
order. The court found that despite the progressing relationship
between father and son allowing contacts without supervision was
premature and such changes should be done more gradually. The order
of 5 July 2006 was now again in force.
- On
25 May 2007 Ljubljana District Court received the expert's opinion.
- On
31 May 2007 the first applicant lodged a new request for an interim
contact order.
- On
4 June 2007 Ljubljana District Court issued an interim contact order
of its own motion allowing more frequent contact visits following the
favourable expert opinion. A fine for non-compliance was set. S.Ć.
lodged an objection.
- On
21 June 2007 Ljubljana District Court issued a decision rejecting the
objection lodged by S.Ć. to the interim contact order.
- On
16 July 2007 S.Ć. lodged an appeal against the decision of
4 June 2007, claiming that the order was based on an expert
opinion on which she had not been given the opportunity to comment.
- On
16 July 2007 the court received a report by the Moste-Polje Medical
Centre, from which it was evident that both parents had been offered
assistance by the department of psychology. S.Ć. had attended
two meetings, the first applicant none.
- It
transpires from the case-file that the second applicant was
frequently ill between June 2007 and August 2007 and again
hospitalized on 24 July 2007.
- On
17 October 2007 Ljubljana Higher Court upheld the appeal and remitted
the case for re-examination (see paragraph 37 above).
- On
28 November 2007 Ljubljana District Court issued a decision
requesting the appointed expert to modify the report.
- On
30 November 2007 the first applicant lodged a request for a hearing
to be set and a new request for an interim contact order.
- On
15 February 2008 Ljubljana District Court received the modified
expert opinion.
- On
17 March 2008 the first applicant lodged a supervisory appeal under
the 2006 Act.
- On
2 April 2008 the supervisory appeal was rejected as unsubstantiated.
- On
4 April 2008 the first applicant lodged a new request for an interim
contact order and a request for a hearing to be set.
- On
10 April 2008 the first applicant's representative lodged a motion
for a deadline under the 2006 Act.
- On
17 April 2008 the motion for a deadline was rejected.
- On
21 April 2008 the first applicant personally lodged a motion for a
deadline.
- On
13 May 2008 the motion for a deadline was upheld and the case was
given priority treatment.
- On
18 May 2008 the first applicant lodged an urgent request for the
issuing of a new interim contact order.
- On
22 May 2008 the court issued a new interim contact order of its own
motion, allowing more frequent contact visits without supervision and
imposing a fine of EUR 300 for non-compliance. S.Ć. lodged an
objection.
- On
11 June 2008 the case was reassigned to a new judge due to the
previous judge's extended sick leave.
- On
3 July 2008 a hearing was held and a new interim contact order was
issued, setting a fine for non-compliance and further modifying
contact arrangements. Both parties waived the right to appeal.
- On
21 October 2008 S.Ć. lodged a
preliminary submission requesting an additional expert opinion,
whereby it could be established whether there had been physical
violence against the second applicant by the first applicant. She had
also informed the Welfare Authority about her concerns.
- On
23 October 2008 the first applicant requested amendments to the new
interim contact order.
- On
4 November 2008 the first-instance court rejected both requests and
found it unnecessary to change the contact arrangements. The court
acknowledged that the relations between the parties presented a
problem, since there had been frequent accusations of a criminal
nature on both sides. Following the report by the Welfare Centre, the
court assessed that the circumstances are not of such nature that the
contact arrangements should be altered.
- On
12 November 2008 a main hearing was held regarding custody. The
first-instance court tried unsuccessfully to reach a settlement
between the parties. The court also ordered the expert to supplement
the opinion and establish whether there is any reason the contacts
between father and son should not take place. A new interim contact
order was issued setting new contact arrangements and a fine for
non-compliance. S.Ć. appealed.
- On
4 March 2009 a hearing was held at which the first applicant
submitted a request for a new interim contact order. The court issued
a new order slightly modifying the provisional contact arrangements
until the next main hearing, fixed for 1 July 2009. Based on the
supplemented expert opinion the court slightly extended the contacts.
A fine in the event of non-compliance was set again.
- On
1 July 2009 a hearing was held. Ljubljana District Court issued a
judgment whereby the child was placed in the care of S.Ć. and
contact arrangements were set. The first applicant stated that the
contact visits had been carried out in line with the last interim
decision. Both parents stated that the contact visits had gone ahead
satisfactorily in the preceding months. Pending final resolution of
the case the court issued a new interim order establishing in detail
the contact arrangements for the summer and public holidays.
- On
14 August 2009 the first applicant lodged an appeal against the
first-instance judgment.
- On
14 December 2009 Ljubljana Higher Court rejected the appeal and
upheld the first-instance judgment.
II. RELEVANT DOMESTIC LAW
- For
the description of the relevant domestic law see Eberhard and M.
v. Slovenia (nos. 8673/05 and 9733/05, 24 June 2008, §§
57-66).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicants complained that their right to respect for their family
life had been breached because of the State's failure to enforce
contact arrangements and because of delays in the court proceedings
concerning child custody and provisional contact arrangements.
The
relevant part of Article 8 reads as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.”
A. Admissibility
1. Locus standi, Article 34 of the Convention
- The
Court notes that in the present case the same general principles
apply as set out in the Eberhard judgment (cited above, §§
85–88). It further notes that the application concerns
non-enforcement of contact arrangements and length of proceedings
regarding contact and custody rights. It does not, however, concern
the merits of the decisions on the right of custody. The Court
therefore concludes that the first applicant's position as a natural
parent cannot be regarded as a sufficient basis also to bring the
present application on behalf of the second applicant.
- Consequently,
the first applicant has no standing to act on the second applicant's
behalf. The Court will therefore limit its examination of the case to
the part that concerns the first applicant, hereinafter referred to
as “the applicant”. The second applicant will hereinafter
be referred to as Ć.
2. Exhaustion of domestic remedies
(a) The Government's arguments
- The
Government proposed that the Court declare the application
inadmissible for non-exhaustion of domestic remedies.
- They
relied on The Act on the Protection of the Right to a Hearing without
Undue Delay (“the 2006 Act”) and argued that the
applicant had failed to properly exhaust the domestic remedies. The
Government argued that the applicant did exhaust both acceleratory
remedies, but failed to properly institute the proceedings for just
satisfaction. The applicant's request for just satisfaction was
premature, since he had lodged it before the domestic proceedings
became final and terminated.
- The
Government maintained that since the applicant alleged that because
of the unreasonable duration of the proceedings there was also a
violation of the right to family life under Article 8 of the
Convention, the alleged violation of Article 8 is also inadmissible
for non-exhaustion of domestic remedies.
- Finally,
in their additional observations the Government informed the Court
that they had offered the applicant a settlement proposal for the
undue delay and that the applicant had not yet sent a response.
(b) The applicant's arguments
- The
applicant stated that since the major part of the proceedings had
been conducted before 1 January 2007 the acceleratory remedies in
such cases do not serve their purpose, namely that of accelerating
the proceedings. According to him such remedies are just an
unreasonable formality. In support of his allegations, the applicant
submitted copies of more than a hundred decisions by which
supervisory appeals and motions for a deadline lodged by the
applicants' lawyer in other, unrelated cases were rejected. The
applicant submitted that the problem of lack of effective remedies
stemmed from the fact that the courts refused to directly apply the
Convention in this area.
- The
applicant also argued that his request for compensation should not
have been rejected as premature, since there is no such provision in
the 2006 Act.
- The
applicant went on to argue in general that the proceedings for
compensation for undue delays were lengthy, ineffective and
burdensome. He stated that the 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,
particularly in family-related cases; that the courts would assess a
particular judge's responsibility for delays instead of accepting
that the delays were a systemic problem; and that the courts had
applied domestic law wrongly and were biased. In this connection, the
applicant submitted a large number of domestic decisions concerning
compensation for alleged unreasonable length of proceedings sought in
claims that had been lodged with the domestic courts.
- Finally,
the applicant stated that the amounts of compensation awarded by the
State Attorney's Office were too low and not in accordance with the
Court's case-law.
(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., cited above, § 105). The
Court therefore rejects this objection of the Government as far as
Article 8 issues are concerned.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties' arguments
- The
Court notes that some of the parties' arguments which referred
to Article 6 § 1 also concerned in substance the issues
raised under Article 8 of the Convention. The Court deems it
appropriate to examine these arguments in the context of the latter
provision (see Eberhard and M., cited above, § 105,
and V.A.M. v. Serbia, no. 39177/05, 13 March 2007, §
115).
(a) The applicant's arguments
- The
applicant stated that in the present case the domestic courts were
completely incompetent and had done nothing to expedite the
proceedings and safeguard the best interests of the child. There were
long periods without any contact visits between father and son
despite a multitude of interim orders, and the courts had done
nothing to remedy the situation. The applicant alleged that the
domestic courts were continuing to tolerate the unacceptable
behaviour of S.Ć., who tried to do
everything possible to prevent contact and obstruct the development
of a loving relationship between father and son.
- The
applicant submitted that the incompetence of the domestic court could
be seen by the large number of interim orders issued, all of which
were allegedly rejected on procedural grounds by appellate courts.
According to him the interim orders were useless; there were too many
of them, they were issued for limited periods and were not
enforceable. The applicant further stated that he had lodged several
requests for imposition of a penalty and enforcement and had done
everything in his power to expedite the proceedings, but to no avail.
As a result, his contact visits with Ć. were seriously
obstructed by the appalling behaviour of S.Ć.
and the incompetence of the domestic courts to prevent such
behaviour.
- The
applicant also expressed disagreement with the contact arrangements,
whereby he could see his son under the supervision of Ljubljana Moste
Polje Social Work Centre. He stated that such an arrangement was
completely unacceptable and that the employees of the said Centre
were dealing with his case in a discriminatory manner. According to
him the domestic courts should have not relied on the professional
opinions of such an incompetent and questionable establishment.
- Finally,
the applicant more generally submitted that as a matter of practice
the Slovenian courts did not pursue the enforcement of interim orders
in cases such as the present one.
(b) The Government's arguments
- The
Government argued that the domestic proceedings were instituted in
the first place due to the inability of the parents to reach a
friendly solution regarding their child. According to the Government
the obviously unresolved emotional issues between the parents
strongly affected the duration of the proceedings. During the
proceedings the parents lodged several criminal complaints against
each other, making allegations of serious criminal offences, which in
the Government's view was a clear demonstration of the severity and
complexity of the situation.
- The
Government further argued that, putting the complexity of the case
aside, the delays in the proceedings were predominantly attributable
to the applicant, who was constantly lodging new requests for interim
contact orders. They stated that following the first order, issued on
17 May 2006, contact visits between the applicant and Ć. did not
always take place, which was mostly due to unresolved issues between
the parents and to Ć.'s illnesses, but which gradually improved
later in the course of the proceedings. The applicant lodged eight
requests for interim orders and the first-instance court issued
eleven such orders extending contact visits accordingly, taking into
account the improving relations between the parents and the reports
of the social workers. According to the Government, the domestic
courts, having regard to the complexity of the matter, considered the
case swiftly, with extreme care and constantly sought solutions in
the best interest of the child.
- The
Government also contested the applicant's statements regarding the
delay in the issuing of the first interim order and the issue of
enforcement of the order, which they maintained to be simplified and
false. They argued that it took the first-instance court three months
to issue the first interim order, which cannot be considered
excessive. As to the enforcement of the interim orders the Government
maintained that with the exception of the first interim order the
following orders did impose a criminal fine in the event of
non-compliance.
- The
Government further argued that the applicant did request that a
criminal fine be imposed on the defendant for non-compliance with the
interim order, but those requests were rejected mostly because the
applicant was unable to prove that there had been other reasons for
the failure of contact visits than the illness of Ć. In
addition, the Government stated that imposing a criminal fine would
also be contrary to the child's best interests, since in the period
concerned S.Ć. was unemployed. As for the applicant's request
for an enforcement measure of immediate physical constraint, the
court rejected it as disproportionate, keeping the best interests of
the child in mind.
- Finally,
the Government argued that in the present case the State had complied
with its positive obligations under Article 8 and that this complaint
should be rejected as unfounded. According to them the alleged
violation was neither a consequence of the alleged violation of the
right to a trial within a reasonable time nor could it be
attributable to the State.
2. The Court's assessment
- 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, 5 April 2005, § 70).
- 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
addition, the Court's role is not to substitute itself for the
competent national authorities in regulating custody and access
issues in Slovenia, but rather to review under the Convention the
decisions that those authorities have taken in the exercise of their
power of appreciation (see, mutatis mutandis, the
Handyside v. the United Kingdom
judgment of 7 December 1976, Series A no. 24, p. 23, § 50).
In so doing, it must determine whether the reasons purporting to
justify the actual measures adopted with regard to the applicant's
enjoyment of his right to respect for family life are relevant and
sufficient under Article 8.
- In
cases concerning the enforcement of decisions in the realm of family
law, the Court has repeatedly found that what is decisive is whether
the national authorities have taken all necessary steps to facilitate
execution as can reasonably be demanded in the special circumstances
of each case (see Hokkanen v. Finland, 23 September
1994, § 58, Series A no. 299 A p. 22, and
Ignaccolo-Zenide v. Romania, no. 31679/96, § 96, ECHR
2000-I).
- 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).
- The
Court's first task in the present case is therefore to consider
whether, in the light of the relevant principles of its case-law, the
measures taken by the Slovenian authorities were adequate and
effective.
- The
Court notes that the relationship between the applicant and S.Ć.
ended four months before Ć. was born. The applicant acknowledged
his son and further to S.Ć.'s unwillingness to let him
participate in the upbringing of Ć. he instituted court
proceedings. The domestic proceedings were instituted on 10 February
2006 and aside from custody the applicant also requested an interim
contact order to be issued ensuring him contact with Ć. pending
the outcome of the proceedings. On 17 May 2006 the first interim
order was issued. In the course of the proceedings, the applicant
lodged eight requests for an interim contact order and the court
issued eleven such orders in total. All interim contact orders were
immediately enforceable (see paragraph 12).
- Notwithstanding
the rather large number of interim contact orders issued, the Court
cannot accept the applicant's argument that they were not effective,
that there was too many of them and were not enforceable.
- The
Court observes that as regards the contact visits between the
applicant and Ć., there have indeed been periods of poor or
obstructed contacts. Although S.Ć.'s reluctance to accept the
idea of the applicant being involved in their son's life may have
played a role in this, contact visits often could not take place due
to Ć.'s illnesses. The longer periods of obstructed contact
visits coincide, as noted by the domestic court, with Ć. being
ill and on several occasions hospitalised (see paragraphs 25, 31 and
39), which cannot be attributable to the State. The Court also notes
that the relationship between father and son was gradually improving
throughout the proceedings; that being particularly evident in the
second half of the proceedings where both parties referred to the
contacts as satisfactory (see paragraph 60 above). The Court is aware
that in such difficult situations as the present one, involving
unresolved issues between the parents, a certain amount of time has
to pass in order for the parents to overcome the emotional hurdles
and establish a mature relationship focusing on the best interests of
the child.
- More
importantly, the Court observes that apart from the first interim
contact order all subsequent orders included a fine, to be imposed in
the event of non-compliance. However, the applicant lodged only two
requests for the fine to be imposed in periods where contact visits
were prevented on only a few occasions, due to Ć.'s illness (see
paragraph 25). Both requests were rejected as unsubstantiated.
Instead he kept resorting to lodging criminal complaints (see
paragraphs 16 and 28) and new requests for interim orders. The Court
cannot therefore accept that the applicant did everything in his
power to obtain the enforcement of the interim contact orders to
ensure contacts with his son had he considered that S.Ć. was not
complying with them.
- Having
regard to the facts of the case, the Court's case-law and the
parties' submissions, the Court concludes that the State cannot be
considered to have failed in making adequate and effective efforts to
execute the contact orders.
- As
regards the alleged delays in the proceedings, the Court reiterates
its case-law where it has previously considered that where conduct of
custody proceedings is ineffective, and in particular where the
proceedings are delayed, this may give rise to a breach of Article 8
of the Convention (see V.A.M. v. Serbia, cited above, §
49 and Eberhard and M., cited above, §§ 142–143).
- In
the present case, the Court notes that the proceedings lasted three
years and ten months at two levels of jurisdiction. The first interim
contact order was issued on 17 May 2006, that is three months after
the proceedings were instituted. The first hearing was held on 5 July
2006. The court issued eleven interim contact orders, held six
hearings and appointed one expert. The Court is satisfied that aside
from a few delays, which were however not excessive (see, for
example, paragraphs 54–57 and 58–59 above), the
proceedings were sufficiently prompt and effective, considering that
the court had had to deal with a large number of requests for new
interim contact orders and objections to and appeals against such
orders. Moreover, the contact visits between the applicant and Ć.
had generally been allowed to happen. In this connection the Court
also notes that with every newly issued order the access arrangements
were modified so to allow more frequent contact taking into account
the best interest of the child.
-
In view of the duration of the impugned court proceedings and the
conduct of the domestic courts, and having regard to the fact that
the contact visits between the applicant and Ć. were not
significantly obstructed, (see by contrast Eberhard and M.,
cited above, §139), the Court finds that the proceedings
were conducted effectively and promptly enough, as required by
Article 8 of the Convention.
- The
Court therefore concludes that as regards the enforcement of the
contact orders and the conduct of the court proceedings concerning
contact and custody rights, the Slovenian authorities did not fail to
meet their positive obligations arising from Article 8 of the
Convention. There has accordingly been no violation of Article 8 of
the Convention in the present case.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF
THE CONVENTION
- The
applicants also complained that the length of the court proceedings
concerning custody rights and provisional 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 applicant relied on the arguments outlined in
paragraphs 67-70 and paragraphs 71-74 respectively.
- The
Court notes that the applicant was offered
compensation in respect of non-pecuniary damage (see paragraph 70)
and had at his disposal remedies available under special
legislation concerning length of proceedings. If
the applicant was not satisfied with this offer, he could have lodged
a “claim for just satisfaction” in accordance with
the relevant provisions of the 2006 Act. In this connection, the
Court notes that the above-mentioned claim has been considered by the
Court to constitute an appropriate means of redressing a breach of
the reasonable time requirement of Article 6 that has already
occurred (see Pohlen v. Slovenia (dec.), no. 28457/03, §§
40-43, 3 June 2008).
- In
view of the above, the Court finds that this part of the application
must 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
1. Decides that the applicant has no standing to act on
behalf of Ć.;
2. Declares the complaint under Article 8 of the
Convention admissible and the complaint under Article 6 § 1
of the Convention inadmissible;
- Holds that there has been no violation of
Article 8 of the Convention.
Done in English, and notified in writing on 7 December 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
