CASE OF TRDAN AND Ć. v. SLOVENIA
Remainder inadmissible;No violation of Art. 8
Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
4. 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. 5. 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. 6. On 10 February 2006 the first applicant brought an action with the Ljubljana District Court (Okrožno 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. 7. 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. 8. 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. 9. 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. 10. On 9 May 2006 the first applicant lodged a supervisory appeal (nadzorstvena pritožba) with the Ministry of Justice (Ministrstvo za pravosodje), complaining that the judge's work in the case was slow and ineffective. 11. On 10 May 2006 the first applicant lodged preliminary submissions and a reply to the counterclaim lodged by S.Ć. on 21 March 2006. 12. 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. 13. 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. 14. 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. 15. 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. 16. 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. 17. On 14 June 2006 Ljubljana District Court set a hearing for 5 July 2006. The first applicant requested that the hearing be set earlier. 18. On 15 June 2006 Ljubljana District Court issued a decision exempting the first applicant from paying court fees. 19. On 16 June 2006 the first applicant requested the hearing to be rescheduled, which was refused. 20. 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. 21. 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. 22. On 6 September 2006 Ljubljana Higher Court quashed both appeals. 23. On 27 November 2006 the first applicant lodged a request for a new interim contact order, requesting more frequent contact. 24. 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. 25. 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. 26. 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”). 27. 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. 28. 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. 29. 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. 30. On 7 March 2007 the supervisory appeal was rejected as unfounded (see paragraph 26). 31. The second applicant was again hospitalized between 7 May 2007 and 10 May 2007. 32. 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. 33. On 25 May 2007 Ljubljana District Court received the expert's opinion. 34. On 31 May 2007 the first applicant lodged a new request for an interim contact order. 35. 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. 36. On 21 June 2007 Ljubljana District Court issued a decision rejecting the objection lodged by S.Ć. to the interim contact order. 37. 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. 38. 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. 39. 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. 40. On 17 October 2007 Ljubljana Higher Court upheld the appeal and remitted the case for re-examination (see paragraph 37 above). 41. On 28 November 2007 Ljubljana District Court issued a decision requesting the appointed expert to modify the report. 42. 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. 43. On 15 February 2008 Ljubljana District Court received the modified expert opinion. 44. On 17 March 2008 the first applicant lodged a supervisory appeal under the 2006 Act. 45. On 2 April 2008 the supervisory appeal was rejected as unsubstantiated. 46. 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. 47. On 10 April 2008 the first applicant's representative lodged a motion for a deadline under the 2006 Act. 48. On 17 April 2008 the motion for a deadline was rejected. 49. On 21 April 2008 the first applicant personally lodged a motion for a deadline. 50. On 13 May 2008 the motion for a deadline was upheld and the case was given priority treatment. 51. On 18 May 2008 the first applicant lodged an urgent request for the issuing of a new interim contact order. 52. 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. 53. On 11 June 2008 the case was reassigned to a new judge due to the previous judge's extended sick leave. 54. 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. 55. 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. 56. On 23 October 2008 the first applicant requested amendments to the new interim contact order. 57. 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. 58. 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. 59. 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. 60. 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. 61. On 14 August 2009 the first applicant lodged an appeal against the first-instance judgment. 62. On 14 December 2009 Ljubljana Higher Court rejected the appeal and upheld the first-instance judgment. 63. 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).