CASE OF EBERHARD AND M. v. SLOVENIA
Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life);Non-pecuniary damage - award
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall
4. The first applicant, Mr Eberhard, was born in 1968 and lives in Ponikva. The second applicant, M., is his daughter. 5. On 8 April 2001 the first applicant’s wife, M.E., together with the second applicant, then aged four, moved out of the flat in which they had been living with the first applicant. M.E. subsequently filed a petition for divorce. 6. On 4 May 2001 the first applicant and his wife, with whom the second applicant was living, signed an agreement on access arrangements. 7. On 12 June 2001 the first applicant filed a request with the Šentjur Social Welfare Centre (“the Šentjur Centre”) seeking formal determination of the access arrangements, claiming that since 12 May 2001 M.E. had denied him access to the second applicant. 8. During the following month M.E. gave a number of statements at the Šentjur Centre, opposing contact between the applicants, stating that the first applicant represented a danger to her and the second applicant. She also lodged a criminal complaint against the first applicant for endangering their safety. 9. On 11 July 2001 the expert committee of the Šentjur Centre submitted an opinion in the case. 10. On 31 July 2001 a hearing was held at the Šentjur Centre. While the first applicant attended the hearing, M.E. refused to attend, claiming that she did not feel safe in the presence of the first applicant. 11. On 1 August 2001 the Šentjur Centre issued an order granting the first applicant four hours a week with the second applicant, taking into account the expert committee’s opinion and the fact that, at the supervised meeting between the applicants, the second applicant had not appeared to be afraid of the first applicant but, on the contrary, pleased to see him. The Šentjur Centre did not follow the first applicant’s proposal that he should be allowed to pick the second applicant up at her nursery; instead it ordered M.E. to bring the second applicant to a meeting point at a local train station. 12. On 3 October 2002, further to an appeal by M.E., the Ministry of Labour, Family and Social Affairs (“the Ministry”) modified the order in part. However, in essence, the access arrangements remained unaffected. The access order therefore became final and enforceable on 16 October 2002. 13. M.E. failed to comply with the order. She did not bring the second applicant to the meeting-point specified therein. 14. On 22 November 2002 the first applicant requested enforcement of the order. After hearing evidence from both parties, on 31 January 2003 the Šentjur Administrative Unit (“the Unit”) allowed the enforcement and ordered M.E. to hand the second applicant over to the first applicant at the next meeting. In addition, the Unit decided that if M.E. failed to do so she would be ordered to pay a fine of 5,000 Slovenian tolars (SIT) (approximately 25 euros (EUR)). It also noted that the fine could be increased in the event of further failure to comply. 15. M.E. continued to refuse the first applicant all access to the second applicant. 16. Further to the first applicant’s thirteen notices of non-compliance by M.E., on 3, 18, 23 and 30 April, 13 May and 9 June 2003 the Unit issued orders imposing fines which increased from SIT 5,000 to SIT 35,000 (approximately EUR 145). The orders were forwarded to the tax authorities for execution. 17. M.E. appealed against the orders. 18. According to letters addressed to the court by the Šentjur Centre on 8 September 2003 and 3 May 2004, in the context of proceedings no. P 667/2003, the Šentjur Centre and the Unit attempted to organise supervised meetings between the applicants, but M.E. refused to cooperate. 19. On 15 June 2004 the Ministry quashed the impugned enforcement orders, finding that M.E. had not been informed of the first applicant’s notices concerning non-compliance and had had no opportunity of participating in the proceedings and presenting arguments in her favour. The Ministry also found that the Unit had not examined the situation by verifying whether the meetings had actually failed to take place, and, if so, whether there had been justifiable reasons for such failure. The Ministry, however, noted that the order determining access arrangements remained enforceable and could not be challenged in those proceedings. The Unit was ordered to reexamine the notices. Neither of the parties challenged the decision before the Administrative Court and it therefore became final on 29 June 2004. 20. Further to changes in legislation which stipulated that the first-instance authority should be in charge of enforcement, the Unit transferred the file to the Šentjur Centre on 7 April 2005. There are no indications in the case file that any steps were subsequently taken by the Šentjur Centre in the context of these proceedings. 21. On 14 June 2001, further to the divorce petition filed by M.E., the Celje District Court issued an interim decision granting M.E. provisional custody (varstvo in vzgoja) of the second applicant pending the outcome of the proceedings. This decision was upheld by the Celje Higher Court on 15 November 2001. 22. On 11 February 2002 the Celje District Court issued a judgment granting the first applicant and M.E. a divorce, granting M.E. custody of the second applicant and fixing the amount the first applicant had to pay in child support. 23. On 4 December 2002 the Celje Higher Court upheld M.E.’s appeal in part and increased the child support. This was a final decision in these proceedings. 24. On 6 June 2003 the first applicant lodged an application for custody of the second applicant, relying on the fact that M.E. was denying them contact. He also requested an interim order under which the second applicant would be placed in his custody pending the outcome of the proceedings, and the appointment of a curator ad litem to represent the second applicant’s interests in the proceedings. He further requested that the case be granted priority. On 7 July 2003 the applicant submitted documents in support of his request for exemption from obligation to pay the court fees. 25. The hearing scheduled for 30 September 2003 was cancelled at the first applicant’s request. 26. At a hearing held on 20 November 2003 the first applicant requested to have the case dealt with through mediation. The request was allowed by the court. However, it would appear that M.E. showed no interest in resolving the issues in that manner. 27. On 3 March 2004 the first applicant requested the President of the court to establish why no hearing had been scheduled. The next day a hearing was scheduled for 1 April 2004. That hearing was then adjourned as M.E. did not attend. The Šentjur Centre was requested to conduct an interview with M.E. and to inform the court about the implementation of contact between the applicants. 28. At the hearing of 13 May 2004, the first applicant requested that the proceedings be stayed, after having had an opportunity to see the second applicant at the school’s parent-teacher meetings. 29. However, as M.E. continued to refuse any contact between the applicants, on 16 August 2004 the first applicant requested that the proceedings be resumed and a hearing was scheduled for 7 October 2004. It was adjourned as the court decided, further to the first applicant’s request, to appoint an expert psychologist. On 19 October 2004 the court appointed expert D.T. to produce an opinion in the case. 30. On 24 May 2005 the first applicant lodged written submissions and requested the court to urge the expert to prepare the opinion. In addition, he made an alternative request seeking, inter alia, a change in the access arrangements and to have proceedings Pn 22/2005 (see paragraphs 52-62 below) joined to the current set of proceedings. In these and subsequent submissions the second applicant was also mentioned as a plaintiff. 31. On 16 June 2005 and 7 December 2005 the first applicant lodged further written submissions. In the first set, he submitted that he had had no access to the second applicant. He also asked the court to appoint another expert, as D.T. had failed to produce an opinion. In the second set of submissions the first applicant urged the court to issue the interim custody order (see paragraph 24 above) and added an alternative request for an interim access order. In the latter, he emphasised the need to organise the visits in a manner that would prevent M.E. from obstructing them. Accordingly, he proposed to pick the second applicant up from school, after her lessons. The first applicant also informed the court that, to his knowledge, M.E. was refusing to be examined by D.T., and complained about the passivity of the court. In addition, the first applicant alerted the court to the fact that he had had no access to the second applicant in the past four and a half years, except on one occasion at her school. 32. In the meantime, the appointed expert informed the court on 22 September 2005 that he was unable to prepare the opinion as M.E. had refused to cooperate. On 8 December 2005, the court informed the first applicant that it would decide on the interim orders only when the expert opinion was available. 33. On 22 February 2006 the first applicant lodged supervisory appeals with the President of the court and the Ministry of Justice complaining about the passivity of the judge. 34. On 23 February 2006 the first applicant again urged the court to decide on the case, stressing that M.E. was deliberately avoiding examination by the expert. 35. On 27 February 2006 the judge prepared a report in reply to supervisory appeal. The next day the President of the court replied to the first applicant. He noted that no interference with the judge’s decision concerning the appointment of the expert was permitted and that there were no reasons for any measures to be taken in response to the first applicant’s supervisory appeal. He also informed him that the main reason for the delay in the proceedings was M.E.’s failure to cooperate and reassured him that if the expert could still not examine M.E. the court would decide on the interim access order in the absence of an expert opinion. 36. On 14 March 2006 the first applicant requested the expert, the judge and the President of the court to step down from the case, arguing that they were inactive. His requests were dismissed on the ground that the statutory conditions for withdrawal were not fulfilled. 37. On 20 March 2006 M.E. was examined by the expert. 38. On 19 May 2006 the court held a hearing concerning the interim orders. Beforehand, it acquired information concerning the first applicant’s criminal record and relevant information from the Šentjur Centre and M.E.’s bank. All parties were present at the hearing. Subsequently, on 26 May 2006, the court issued a decision rejecting the first applicant’s application for provisional custody and upholding his alternative request for an interim access order. It noted that “during the court proceedings the applicants had contact once in 2004 at the school in Celje and, subsequently, twice at the school in Ljubljana”. The applicants were granted the right to spend, inter alia, one afternoon a week together, whereby the first applicant would pick the second applicant up after school and return her to M.E. at 5 p.m., plus every second weekend and part of the holidays. These arrangements were to be implemented after three weekly preparatory meetings. The court also decided that M.E. could be subjected to a fine of SIT 500,000 (approximately EUR 2,080) if she was found to be preventing or obstructing contact between the applicants. The second applicant was by then nine years old. 39. As M.E. and the second applicant moved to Ljubljana, the Ljubljana Vič-Rudnik Social Welfare Centre (“the Ljubljana Centre”) obtained jurisdiction in the case. On 13, 20 and 27 June 2006 the applicants had contact in the context of the preparatory meetings held at the Ljubljana Centre. The Centre assessed the visits very positively. In answer to the court’s request, the Ljubljana Centre informed it that subsequent contact between the applicants did not appear to have been hindered. 40. On 21 August 2006 the first applicant lodged written submissions complaining that on certain occasions he had been denied access to the second applicant. He also requested that M.E. be penalised as stipulated in the decision of 26 May 2006. 41. On 24 October 2006 the expert D.T. issued a report which assessed the relationship between the applicants in positive terms, finding that the second applicant showed affection for the first applicant and that there were no reasons to doubt the latter’s capacity to be a parent. D.T. further found that M.E. had in the past year changed her attitude regarding the relationship between the applicants and gained some trust in the first applicant. D.T. also noted that the second applicant was growing up with her mother and had expressed a wish to continue living with her. 42. On 2 November 2006 the court ordered the first applicant to pay the expert’s fees. The first applicant appealed on 10 November 2006. On 29 March 2007 the Celje Higher Court upheld the order of the first-instance court, finding that the first applicant had undertaken to pay the fees for the expert whose appointment he had proposed. 43. In the meantime, on 24 January 2007, the first applicant received the expert opinion. 44. On 27 February 2007 the court scheduled a hearing for 5 March 2007, which was adjourned sine die at M.E.’s request. M.E. stated that she would not be available during that period as she had given birth in December 2006 and was breastfeeding. 45. On 2 March 2007 the first applicant lodged a supervisory appeal, relying on section 6 of the Act on Protection of the Right to a Hearing without Undue Delay (“the 2006 Act”). 46. On 23 March 2007 the President of the court, relying on section 6, paragraph 4 of the 2006 Act, replied to the supervisory appeal stating that the hearing had been held on 5 March 2007, that is, within four months of receipt of the supervisory appeal. 47. On 7 September 2007 the court held a hearing. It joined proceedings Pn 22/2005 to the existing proceedings. Since the first applicant insisted that the second applicant act as a second plaintiff and be represented in the proceedings by a curator ad litem (see paragraph 24 above), the court adjourned the hearing and appointed a lawyer to represent the second applicant. 48. On the same day the first applicant lodged preliminary written submissions in which he expressed his dissatisfaction with certain parts of the expert opinion and requested that a new expert be appointed. 49. On 3 October 2007 the first applicant lodged a motion for a deadline, relying on section 8 of the 2006 Act. On 15 October 2007 the President of the Celje Higher Court rejected (zavreči) the motion. He found that the first applicant had not sufficiently explained his allegations of undue delay and therefore failed to satisfy the requirements of section 5, paragraph 2, point 5 of the 2006 Act. 50. A hearing was scheduled for 9 November 2007 but was cancelled at the request of the second applicant’s representative. 51. The next hearing was held on 10 January 2008. At the hearing the parties agreed on new access arrangements. Under the terms of that agreement, the first applicant also withdrew his application for custody rights. In addition, the parties withdrew two other claims – one criminal complaint for defamation lodged by M.E. against the first applicant and a civil complaint pursued by the first applicant against M.E. On that day the proceedings were “finally resolved” (see paragraph 79 below). 52. On 24 May 2004 the first applicant lodged a request for access arrangements in separate proceedings. In his request the first applicant noted that the access order issued in administrative proceedings had been ineffective and requested that the court grant an interim access order which would ensure contact between the applicants. In this connection, he requested to be granted the right to pick up the second applicant at her school, which would prevent M.E. from hindering the access. In July and September 2004 the court tried to serve the request on M.E., but to no avail. The court then ordered that the request be served through M.E.’s employer. 53. In his written submissions of 25 October 2004 the first applicant included the second applicant as a claimant. 54. On 26 October 2004 the Šentjur pri Celju Local Court held a hearing. It found that it lacked jurisdiction to decide in the case and referred it to the Celje District Court. 55. On 23 December 2004 the applicants requested the Šentjur pri Celju Local Court to transfer the case file to the Celje District Court. 56. On 29 December 2004 the Šentjur pri Celju Local Court informed the first applicant that the case could not be transferred as the decision concerning the court’s lack of jurisdiction had not yet become final owing to the lack of success in serving it on M.E. 57. On 14 January 2005 the case was transferred to the Celje District Court and was registered under number Pn 22/2005. 58. On 11 February 2005 the first applicant requested priority. 59. The court held a hearing on 24 March 2005 in the absence of M.E. The first applicant testified that he had had access to the second applicant only on three occasions, namely on 12 May 2001, on 5 May 2004 and on 23 December 2004. The judge informed the first applicant that an interim access order could not be issued as the final access order issued in administrative proceedings was still in force. 60. On 24 and 25 March 2005 the first applicant filed written submissions. 61. On 4 April 2005 the Celje District Court asked the first applicant to enclose a confirmation from the social welfare centre that an attempt had been made to reach an agreement concerning access rights as stipulated in the Marriage and Family Relations Act. It also noted that the advance for the payment of expert fees had not been paid. It appears from this decision that the second applicant, represented by her father, was also considered a claimant in the proceedings. 62. On 17 May 2005 the court dismissed the request for new access arrangements as the first applicant had failed to submit the required documents. It seems, however, that this decision did not become final as on 25 May 2005 the first applicant successfully requested that the proceedings be joined to proceedings P 667/2003 (see paragraph 30 above). 63. Until 1 May 2004 the Social Welfare Centres were in principle responsible for taking decisions concerning access arrangements. The enforcement of such decisions could then be requested only in administrative proceedings. As regards the sanctions, the Administrative Procedure Act (Zakon o splošnem upravnem postopku, Official Gazette no. 80/1999) provided in its section 299: “If the enforcement of a non-pecuniary obligation cannot be achieved or achieved in time by the means specified in sections 297 and 298 of this law [such as the imposition of administrative fines], it may, depending on the nature of the obligation concerned, be secured by direct coercion unless otherwise stipulated in the applicable legislation.” 64. The Marriage and Family Relations Act (“the MFR Act”, Zakon o zakonski zvezi in družinskih razmerjih, (old) Official Gazette of the Socialist Republic of Slovenia no. 15/1976) stated in its section 114 that: “... In the event of a divorce or annulment of marriage, parental rights (roditeljska pravica) shall be exercised by the parent who has custody of the child. Decisions that are decisive for the development of a child, shall be taken by both parents together .... If the parents cannot reach an agreement, the Social Welfare Centre shall decide.” 65. On 23 April 2003 the Constitutional Court delivered an important decision in which it found several provisions of the MFR Act concerning custody and access arrangements to be unconstitutional. Subsequently, an amendment was enacted by the Parliament (Official Gazette no. 16/2004). It entered into force on 1 May 2004. 66. Further to the above-mentioned legislative changes, the courts acquired jurisdiction to adjudicate custody and access arrangements. Since then, parents have been able to reach an agreement (outside divorce proceedings) in non-contentious civil proceedings. If no agreement can be reached with the assistance of the Social Welfare Centre, the issue of custody is decided in contentious civil proceedings. The issue of access arrangements can be decided in non-contentious civil proceedings if it is not raised together with the issue of custody (sections 78, 105 and 106 as amended in 2004). In particular, sections 105 and 106 provide, as far as relevant: “... If the parents, with the assistance of the Social Welfare Centre, cannot reach an agreement on the custody of children (varstvo in vzgoja otrok), the court shall decide at the request of one or both parents that all the children are in the custody of one of them or that some children are in the custody of one and the others in the custody of the other parent. The court may, of its own motion, decide to place all or some of the children in the custody of a third person. Before the decision is taken by the court, the opinion of the Social Welfare Centre shall be obtained. The court shall take the child’s view into account if the child expresses his or her view ... “A child has the right to have contact with both parents. Both parents have the right to have contact with their children. Contacts should be in the child’s interest first and foremost. The parent with whom the child lives ... shall avoid anything that hinders or prevents such contact. He or she must strive to maintain an appropriate attitude in the child in respect of contacts with the other parent ... ... The court can withdraw or limit the right to contacts only if this is necessary for the protection of the child’s interests ...” 67. Section 106 of the amended MFR Act states also that, if the custodial parent denies the non-custodial parent access to the child and contact cannot be secured with the assistance of the Social Welfare Centre, the court shall, at the request of the non-custodial parent, transfer custody to him or her if this is in the interest of the child. 68. In addition, the amended MFR Act annulled the previous section 114 (see paragraph 64 above), providing instead, in sections 107 and 113: “Minors shall be represented by their parents. Letters or information to be served on the minor may be served effectively on any of the parents; if the parents do not live together, they shall be served on the one with whom the child lives ...” “Parental rights shall be exercised mutually by both parents in accordance with the child’s best interests. If they cannot reach an agreement, the Social Welfare Centre shall assist. When the parents do not live together and do not have joint custody, they shall decide mutually on all issues decisive for the child’s development in accordance with the child’s best interest. If they cannot reach an agreement, the Social Welfare Centre shall assist. Questions concerning the child’s everyday life shall be decided by the custodial parent. If the parents, even with the assistance of the social welfare centre, do not reach an agreement ...., the court decides on these issues. ...” 69. Section 116 states the circumstances in which parental rights can be withdrawn: “The parent who abuses his or her parental rights or abandons a child or demonstrates unwillingness to take care of the child or in any other way neglects his or her responsibilities shall be deprived of his or her parental rights by a court judgment.” 70. Section 10a of the amended MFR Act provides that cases covered by the Act should be processed with priority. 71. Lastly, pursuant to the transitional provisions of the amended MFR Act, proceedings instituted before the entry into force of the amendments (that is, before 1 May 2004) were to be continued and completed before the Social Welfare Centre. In such cases any appeal against the first-instance decision was still to be examined by the Ministry. However, where the first-instance decision was quashed by the Ministry, the proceedings were to be continued before the district court with territorial jurisdiction in accordance with the amended MFR Act. 72. The relevant provisions of the Civil Procedure Act (Zakon o pravdnem postopku, Official Gazette no. 26/1999, in force since 14 July 1999), read as follows: “In marital disputes and disputes concerning relations between parents and children the courts shall of their own motion take all steps necessary to safeguard the rights and interests of the children ... In disputes concerning the custody and maintenance of children [and in disputes concerning contacts between children and parents or other persons – added with the amendment of 5 January 2004, in force since 1 May 2004], the panel is not bound by the parties’ requests. Where so provided by the law, the panel may take decisions even without any request being made. For the protection of the interests of the persons mentioned in the first paragraph, the panel may investigate facts which were not provided by the parties, and collect the information necessary for its decision ...” “... If there is a conflict of interests between the child and his or her statutory representative (zakoniti zastopnik’s interests.” “During proceedings concerning marital disputes and disputes relating to relationships between parents and children, the court may, at the request of one of the parties or of its own motion, issue interim orders (začasne odredbe) concerning child custody and maintenance as well as interim orders withdrawing or restricting access arrangements. ...” 73. As regards the stay of proceedings, section 210 of the Civil Procedure Act provides: “... the proceedings are stayed (mirovanje postopka) until a party proposes that they be continued. The proceedings may not be resumed until three months after they were stayed.” 75. The Act on the Protection of the Right to a Hearing without Undue Delay (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Gazette no. 49/2006 – “the 2006 Act”) was passed by the Parliament on 26 April 2006 and entered into force on 1 January 2007. 76. The 2006 Act provides for remedies to expedite pending proceedings (a supervisory appeal and a motion for a deadline). In addition to these acceleratory remedies, the 2006 Act also provides for the possibility of obtaining redress through a compensatory remedy, by instituting proceedings for just satisfaction within nine months of the “final resolution” of the case (see paragraph 79 below). 77. As regards the acceleratory remedies, a claimant may, during the first- and second-instance proceedings, that is the proceedings before the regular courts, use a supervisory appeal if he or she considers that the court is unduly protracting the decision-making. If the president of the court dismisses the supervisory appeal or, inter alia, fails to respond to the claimant within two months, the claimant can lodge a motion for a deadline with the court hearing the case. The motion for a deadline is dealt with by the president of the higher court. He or she shall decide on the motion for a deadline within fifteen days of receiving it. 78. As regards the obligatory elements which must be included in a supervisory appeal and a motion for a deadline, section 5 provides in the relevant part: “(2) For the purposes of decision-making concerning the protection of the right to a trial without undue delay, the supervisory appeal [the same applies to a motion for a deadline] shall contain the following elements: – personal or corporate name or any other name of the party, with address of permanent or temporary residence or registered office; – personal or corporate name or any other name of the representative or lawyer, with address of permanent or temporary residence or registered office; – indication of the court hearing the case; – reference number of the case or date on which the case was filed in the court; – indication of circumstances or other particulars concerning the case which demonstrate that the court is unduly protracting the decision-making; – handwritten signature of the party, representative or lawyer.” 79. As to the claim for just satisfaction, sections 15, 19 and 20 of the 2006 Act provide that for the claimant to be able to lodge a claim for just satisfaction two cumulative conditions must be satisfied. Firstly, during the first- and/or second-instance proceedings the claimant must have successfully availed himself of a supervisory appeal or have lodged a motion for a deadline, regardless of its outcome. Secondly, the proceedings must have been “finally resolved” (pravnomočno končan postopek). The final resolution of the case refers in principle to the final decision against which no ordinary appeal lies. This would normally be the first-, or if an appeal has been lodged, the second-instance court’s decision. The maximum amount of just satisfaction for non-pecuniary damage fixed by the 2006 Act is EUR 5,000. 80. As regards proceedings terminated before 1 January 2007, section 25 lays down the following transitional rules in relation to applications already pending before the Court: “(1) In cases where a violation of the right to a trial without undue delay has already ceased and the party has made a claim for just satisfaction with the international court before the date of implementation of this Act, the State Attorney’s Office shall offer the party a settlement on the amount of just satisfaction within four months of the date of receipt of the case referred by the international court for the settlement procedure. ... (2) If the proposal for settlement referred to in paragraph 1 of this section is not acceded to or the State Attorney’s Office and the party fail to negotiate an agreement within four months of the date on which the party made its proposal, the party may lodge a claim [for just satisfaction] with the competent court under this Act ...” 81. For a more detailed presentation of the 2006 Act, see Žunič v. Slovenia, (dec.) no. 24342/04, 18 October 2007.