EBERHARD AND M. v. SLOVENIA

THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Applications nos. 8673/05 and 9733/05

by Johann Ivan EBERHARD and M.

against Slovenia

The European Court of Human Rights (Third Section), sitting on 24 June 2008 as a Chamber composed of:

Josep Casadevall, President,

Elisabet Fura-Sandström,

Boštjan M. Zupančič,

Alvina Gyulumyan,

Ineta Ziemele,

Luis López Guerra,

Ann Power, judges,

and Stanley Naismith, Deputy Section Registrar,

Having regard to the above application lodged on 18 February 2005,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court and to authorise anonymity to the second applicant under Rule 47 § 3,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

Having deliberated, decides as follows:

THE FACTS

1The first applicant, Mr Johann Ivan Eberhard, is a Slovenian national who was born in 1968 and lives in Ponikva. The first applicant is the father of the second applicant, M. They are represented before the Court by Mr B. Verstovšek, a lawyer practising in Celje.

A. The circumstances of the case

2The facts of the case, as submitted by the applicants, may be summarised as follows.

3On 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 used to live with the first applicant. M.E. subsequently filed a petition for divorce.

4The applicants lodged two applications with the Court. The first application (no. 8673/05) concerns the court proceedings in which child custody and access arrangements were determined (the second, third and fourth sets of proceedings, see below). The second application (no. 9733/05) concerns administrative proceedings relating to access arrangements and their enforcement (the first set of proceedings, see below).

1The initial access arrangements determined in the administrative proceedings and related enforcement proceedings

5On 4 May 2001 the first applicant and his wife, with whom the second applicant was living, signed an agreement on access arrangements.

6On 12 June 2001 the first applicant filed a request with the Šentjur Centre for Social Work seeking formal determination of the access arrangements, claiming that M.E. had since 12 May 2001 denied him access to the second applicant.

7On 11 July 2001 M.E. gave a statement opposing contact between the applicants, as the first applicant allegedly presented a danger to her and the second applicant. She also submitted the Celje District Court’s decision finding that she should have provisional custody of the second applicant pending the outcome of the contentious civil proceedings (see the second set of proceedings below).

8On 11 July 2001 the expert committee of the Šentjur Centre for Social Work prepared an opinion in the case.

9On 31 July 2001 a hearing was held at the Šentjur Centre for Social Work. 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.

10On 1 August 2001 the Šentjur Centre for Social Work issued a decision granting the first applicant four hours a week with the second applicant, taking into account the expert committee’s opinion and the fact that it had not appeared, at the supervised meeting between the applicants, that the second applicant was afraid of the first applicant, but that in fact she had been happy to see him.

11On 3 October 2002, further to an appeal by M.E., the Ministry of Labour, Family and Social Affairs (“the Ministry”) modified the first decision in part. However, in essence, the access arrangements remained unaffected.

12M.E. failed to comply with the above decisions. She did not bring the second applicant to the meeting-point specified in the decisions.

13On 22 November 2002 the first applicant requested enforcement of the above decisions. After hearing evidence from both parties, the Šentjur Administrative Unit (“the ŠAU”) on 31 January 2003 declared the Ministry’s decision of 3 October 2002 enforceable and ordered M.E. to hand the second applicant over to the first applicant at the next meeting. In addition, the ŠAU 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.

14M.E. continued to refuse the first applicant all access to the second applicant.

15On 3, 18, 23 and 30 April, 13 May and 9 June 2003 the ŠAU issued orders requiring M.E. to pay fines which increased from SIT 5,000 to SIT 35,000 (approximately EUR 145).

16M.E. appealed against the orders of 3 and 30 April 2003, 13 May and 9 June 2003.

17On 15 June 2004 the Ministry quashed the impugned orders, finding that M.E. had not been informed of the first applicant’s requests for enforcement and had had no opportunity of participating in the proceedings and presenting arguments in her favour. The Ministry also found that the ŠAU 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 decisions concerning access arrangements remained enforceable and could not be challenged in those proceedings. The ŠAU was ordered to re‑examine the enforcement requests.

18There are no indications in the case file that any steps were subsequently taken by the ŠAU.

2The divorce and subsequent determination of child custody (P 380/2001)

19It would appear that further to the divorce petition filed by M.E. the Celje District Court issued an interim decision granting her provisional custody of the second applicant pending the outcome of the proceedings. This decision was subsequently upheld by the Celje Higher Court on 15 November 2001.

20On 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.

21On 4 December 2002 the Celje Higher Court upheld M.E.’s appeal in part and increased the child support.

3The first applicant’s application for child custody and his alternative request for new access arrangements in the court proceedings (P 667/2003)

22On 6 June 2003 the first applicant lodged an application for custody of the second applicant, relying on the fact that M.E. was denying him contact with the second applicant. He also requested an interim order under which the second applicant would be placed in his custody pending the outcome of the proceedings and appointment of a representative to represent the second applicant’s interests in the proceedings. He further requested that the case be granted priority.

23The hearing scheduled for 30 September 2003 was cancelled for unspecified reasons.

24At a hearing held on 20 November 2003 the court allowed the first applicant’s request to have the case dealt with through mediation. Since M.E. showed no interest in resolving the issues that way, the court scheduled a hearing for 3 May 2004. At the hearing, the first applicant requested that the proceedings be stayed, since he was able to see the second applicant at the school’s parent-teacher meetings.

25However, soon after, he requested that the proceedings be resumed and a hearing was scheduled for 7 October 2004. It was adjourned as the court decided to appoint an expert psychologist. On 19 October 2004 the court appointed expert D.T. to produce an opinion in the case.

26On 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 (requesting more contact with the second applicant) and to have the proceedings P 22/2005 (see below) joined to the current set of proceedings.

27On 16 June 2005 and 7 December 2005 the first applicant lodged further written submissions. In the first set, he submitted the confirmation issued by the Centre for Social Work on 29 March 2005 to the effect that the first applicant 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 requested an interim access order and informed the court that, to his knowledge, M.E. was refusing to be examined by D.T. He also 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 the child’s school.

28On 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 in the case.

29On 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.

30On 28 February 2006 the President of the court, while stating that there were no reasons for any measures to be taken in response to the first applicant’s supervisory appeal, informed him that the main reason for the delay in the proceedings was M.E.’s failure to cooperate. He also noted that the judge and the expert had agreed on 28 February 2006 that if the expert could not examine M.E. he would return the case file to the court so that it could decide on the interim order.

31On 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.

32On 20 March 2006 M.E. was examined by the expert.

33On 19 May 2006 the court held a hearing concerning the interim order. All parties were present. Subsequently, on 26 May 2006, the court issued a decision rejecting the first applicant’s application for provisional custody and upholding his request for interim access order. The applicants were granted the right to spend together, inter alia, one afternoon a week (after school), every second weekend and part of the holidays. 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 then nine years old.

34On 21 August 2006 the first applicant lodged written submissions complaining that on most occasions he was denied access to the second applicant. He also requested that M.E. be penalised as stipulated in the decision of 26 May 2006.

35On 26 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.

36On 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 himself had undertaken to pay the fees for the expert whose appointment he had proposed.

37In the meantime, on 24 January 2007, the first applicant received the expert opinion.

38On 2 March 2007 the first applicant lodged a supervisory appeal, relying on section 6 of the Act on Protection of the Right to Trial without undue Delay (“the 2006 Act”).

39The 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.

40On 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.

41On 7 September 2007 the court held a hearing. It joined the proceedings Pn 22/2005 to the current proceedings. Since the first applicant insisted that the second applicant be represented in the proceedings, the court adjourned the hearing and appointed a law firm to represent the second applicant in the proceedings. On the same date the first applicant lodged preliminary written submissions requesting that a new expert be appointed.

42On 28 September 2007 M.E. lodged written submissions complaining about the first applicant’s reluctance to visit or call the second applicant and asking him to withdraw his application for custody rights.

43On 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 by stating only the date on which the proceedings had started, the fact that they were ongoing and his opinion that they were not complicated and that they should have been granted priority, the first applicant had not satisfied the requirements of section 5, paragraph 2, point 5 of the 2006 Act.

44A hearing was scheduled for 9 November 2007 but was cancelled at the request of the second applicant’s representative.

45The next hearing was held on 10 January 2008. At the hearing the parties agreed on the new access arrangements. As part of the settlement the first applicant also withdrew his application for custody rights. In addition, the parties withdrew two other claims, one pursued in the criminal and the other in the civil proceedings.

4The first applicant’s request for new access arrangements in the court proceedings (N 4/2004, Pn 22/2005)

46On 24 May 2004 the first applicant lodged a request for new access arrangements.

47In his written submissions of 25 October 2004 the first applicant included the second applicant as a claimant.

48On 26 October 2004 the Šentjur pri Celju Local Court held a hearing. It found that it lacked jurisdiction to decide in the case further to changes in the legislation. The Šentjur pri Celju Local Court therefore decided that the case should be transferred to the Celje District Court once the decision became final.

49On 23 December 2004 the applicants requested the Šentjur pri Celju Local Court to transfer the case file to the Celje District Court.

50On 29 December 2004 the Šentjur pri Celju Local Court informed the first applicant that the case could not be transferred to the competent court as the decision had not yet become final owing to the lack of success in serving it on M.E.

51It would appear that at the beginning of 2005 the case was transferred to the Celje District Court and was registered as case Pn 22/2005.

52The court held a hearing on 24 March 2005 in the absence of M.E.

53On 24 and 25 March 2005 the applicants lodged written submissions.

54On 4 April 2005 the Celje District Court asked the applicants to enclose the necessary documentation with their request. It appears from this decision that the second applicant, represented by her father, was also considered a claimant in the proceedings.

55On 17 May 2005 the court dismissed the request for new access arrangements as the applicants had failed to submit the required documents.

56On 24 May 2005 the applicants nevertheless successfully requested that the proceedings be joined to proceedings P 667/2003 (see the third set of proceedings, above).

B. Relevant domestic law and practice

1Family legislation in force at the material time

57On 23 April 2003 the Constitutional Court delivered a landmark decision in which it found several provisions of the Marriage and Family Relationships Act (“the MFR Act”, Zakon o zakonski zvezi in družinskih razmerjih, Official Gazette SRS no. 15/1976) concerning custody and access arrangements to be unconstitutional. Subsequently, an amendment was enacted by Parliament in January 2004 (Official Gazette of the Republic of Slovenia no. 16/2004). It entered into force on 1 May 2004.

58Until 1 May 2004 the Centres for Social Work were responsible for taking decisions concerning the custody of children in cases where the parents were not going through a divorce and, in principle, decisions concerning access arrangements. The enforcement of such decisions could then be requested only in administrative proceedings.

59Further to the above-mentioned legislative changes, the courts acquired jurisdiction to adjudicate these issues. Since then, parents may reach agreement (outside divorce proceedings) in non-contentious civil proceedings. If agreement cannot be reached, 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).

60The amended section 106 of the MFR Act states that, if the custodial parent denies the non-custodial parent access to the child and contact cannot be secured with the assistance of the Centre for Social Work, the court can, at the request of the non-custodial parent, transfer custody to him or her if this is in the interests of the child.

61Section 10a of the amended MFR Act provides that cases covered by the Act should be processed with priority.

62Finally, 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 competent Centre for Social Work. 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.

2Relevant civil procedure rules

63The 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:

Section 408

“In marital disputes and disputes concerning relationship 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...”

Section 409

“...

If there is a conflict of interests between the child and his or her statutory representative (zakoniti zastopnik), the court shall appoint a special representative for the child. The same shall be done if, in the circumstances of the case, the court deems it necessary for the protection of the child’s interests.”

Section 411

“During proceedings concerning marital disputes and disputes relating to relationships between parents and children, the court may, at the request of one of the parties or of its own motion, issue interim orders (začasne odredbe) concerning child custody and maintenance as well as interim orders withdrawing or restricting access arrangements.

...”

3Legislation concerning remedies in respect of the length of proceedings

64The 2006 Act (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Gazette No. 49/2006) has been in force since 1 January 2007.

65Section 3 of the 2006 Act provides for two remedies to expedite pending proceedings – a supervisory appeal (nadzorstvena pritožba) and a motion for a deadline (rokovni predlog) – and, ultimately, for a claim for just satisfaction in respect of damage sustained because of the undue delay (zahteva za pravično zadoščenje).

For a detailed presentation of the domestic law, see Žunič v. Slovenia (dec.), no. 24342/04, §§ 16-26, 18 October 2007).

4Administrative Disputes Act

66Section 25 of the 1997 Administrative Disputes Act (Zakon o upravnem sporu, Official Gazette No. 50 /97) sets out the grounds on which an administrative act can be challenged before the administrative court. Among the grounds referred to are: incorrect application of the law, breach of the procedural rules, including the party’s inability to provide arguments in his or her favour, and incorrect or insufficient establishment of the facts. Section 26 of the Administrative Disputes Act provides that the application must be lodged with the administrative court within thirty days of service of the impugned administrative act.

COMPLAINTS

67The applicants complain under Article 6 of the Convention about the delays in the proceedings instituted against M.E., in particular in the third and fourth set of proceedings. In this connection they also submit, in their application no. 8673/05, that the domestic legislation did not set time-limits within which the courts had to take interim and final decisions in cases concerning custody and access arrangements. In their submissions, this situation resulted in a systemic problem.

68In their application no. 9733/05, the applicants complain in substance under Article 8 of the Convention about the non‑enforcement of the initial access arrangements (the first set of proceedings). In this connection they argue that the previous legislative framework, by which the access arrangements were determined and enforced in administrative proceedings, was completely ineffective and, in their case, caused irremediable consequences. This was made worse by the fact that the changes in the legislation applied only in proceedings instituted subsequent to adoption of the amendments.

69Referring to the European Convention on the Exercise of Children’s Rights and the UN Convention on the Rights of the Child, the applicants submit in substance under Article 8 of the Convention that, as a result of the ineffectiveness of the above proceedings, the first applicant was unable to see the second applicant and exercise his parental rights for several years.

70Finally, the applicants complain in substance under Article 8 of the Convention that the second applicant did not have an opportunity to participate in the administrative proceedings.

THE LAW

71The applicants complain of the non-enforcement of access arrangements decided in administrative proceedings (the first set of proceedings). They further complain of delays in the court proceedings concerning child custody and access arrangements (the third and fourth set of proceedings), which resulted in the first applicant being unable to see the second applicant and exercise his parental rights for several years. In addition, the applicants complain that the second applicant did not have an opportunity to participate in the administrative proceedings.

72The Court has examined the above complaints under Articles 6 § 1 and 8 of the Convention (see, mutatis mutandis, V.A.M. v. Serbia, no. 39177/05, 13 March 2007), which, in so far as relevant, provide:

Article 6 (right to a fair trail)

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair hearing within a reasonable time ... by [a] ... tribunal ...”

Article 8 (right to respect for private and family life)

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2There 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 ... for the protection of health or morals, or for the protection of the rights and freedoms of others.”

73As regards the complaints concerning the non-enforcement of access arrangements decided in the administrative proceedings and the delays in the court proceedings concerning child custody and access arrangements, the Court considers that it cannot, on the basis of the case file, determine the admissibility of the complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

74As regards the complaint that the second applicant did not have an opportunity to participate in the administrative proceedings, the Court notes that the applicants did not challenge the Ministry’s decision of 3 October 2002 before the administrative court (see paragraph 66 above) and therefore did not exhaust domestic remedies as required by Article 35 § 1 of the Convention. In addition, if the applicants considered that they had no further effective remedy at their disposal with respect to this complaint, they should have lodged an application with the Court within six months of service of the Ministry’s decision of 3 October 2002, which they obviously failed to do. It follows that this part of the applications must be rejected under Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to join the applications;

Decides to adjourn examination of the applicants’ complaints under Articles 6 and 8 of the Convention concerning the non-enforcement of access arrangements decided in administrative proceedings and the delays in the court proceedings concerning child custody and access arrangements;

Declares the remainder of the applications inadmissible.

Stanley Naismith Josep Casadevall

Deputy Registrar President