II. RELEVANT DOMESTIC LAW

A. Family legislation in force at the material time

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:

Section 105

“…

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 …

Section 106

“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:

Section 107

“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 …”

Section 113

“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.

B. Relevant civil procedure rules

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:

Section 408

“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 …”

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.

…”

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.”

C. Administrative Disputes Act

74. Section 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.

D. The Act on the Protection of the Right to a Hearing without Undue Delay

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:

Section 25 – Just satisfaction for damage sustained prior to implementation of this Act

“(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.