Last Updated on August 31, 2023 by LawEuro
FIRST SECTION
CASE OF X v. SLOVAKIA
(Application no. 57752/21)
JUDGMENT
STRASBOURG
31 August 2023
This judgment is final but it may be subject to editorial revision.
In the case of X v. Slovakia,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Péter Paczolay, President,
Alena Poláčková,
Gilberto Felici, judges,
and Liv Tigerstedt, Deputy Section Registrar,
Having regard to:
the application (no. 57752/21) against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 26 November 2021 by a Slovak national, X, (“the applicant”) who was represented by Ms I. Zmeková, a lawyer practising in Bratislava;
the decision to give notice of the application to the Government of the Slovak Republic (“the Government”), represented by their Agent, Ms M. Bálintová;
the decision not to have the applicant’s name disclosed;
the decision to give priority to the application (Rule 41 of the Rules of Court);
the parties’ observations;
Having deliberated in private on 27 June 2023,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The case concerns the length and effectiveness of the proceedings initiated by the applicant before the Čadca District Court on 19 August 2019 with a view to modifying the contact rights of and monthly maintenance payments by her former husband (A) in relation to their child (B).
2. Soon after the commencement of the proceedings, the applicant, B and the applicant’s new spouse (C) moved to Bratislava. B was eleven years old at that time.
3. On 14 January 2020, following an application of the same day by the applicant’s mother (D), the District Court issued an interim measure (neodkladné opatrenie) placing B in the care of D and determining the applicant’s contact rights in respect of B pending the outcome of the proceedings on the merits.
4. The court noted that, in her application, D had stated that B had been complaining about strict educational rules and various restrictions in her home environment, as a result of which B felt unhappy and frustrated. Moreover, according to A, B had confided in him that she had been considering committing suicide. In view of these serious allegations, the court considered that it had been established that there was a need immediately to protect the child by way of the indicated measure.
5. On 15 January 2020 B was taken by D and A to Čadca, where they both live (roughly 230 km from Bratislava), and has remained there ever since.
6. In the proceedings on the merits, expert evidence was obtained in the area of psychology (concerning those involved and their mutual relationships with the child) and toxicology (concerning A in view of his drug‑consumption history).
7. On 12 April 2021 the President of the Žilina Regional Court found the applicant’s administrative complaint about the District Court’s handling of the case justified. The latter had been proceedings with the case, but its actions lacked in efficiency, including with regard to the taking of expert evidence.
8. On that basis, the applicant sought remedy from the Constitutional Court, way of a complaint under Article 127 of the Constitution. However, on 6 July 2021, the Constitutional Court rejected it as being manifestly ill‑founded, having identified “no such inefficiency or inaction … that could lead to a finding of a violation of the applicant’s rights” to a hearing within a reasonable time and respect for her private life.
9. On 17 June 2022 the District Court entrusted B in the care and custody of A and determined the applicant’s contact rights and issues concerning maintenance. The applicant appealed and the proceedings are ongoing.
10. Meanwhile, a case of suspicion that the offence of mistreatment of a dependent person had been committed in connection with the upbringing of B in the applicant’s household was discontinued as no such offence had been established. The decision was taken having regard to, inter alia, expert report in the area of psychology concerning those involved and their relationships.
11. The applicant complained, under Articles 6 and 8 of the Convention, that the District Court’s handling of the case had been slow and inefficient and that, as a result, she had been deprived of contact with her child.
THE COURT’S ASSESSMENT
ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
12. The Court finds that the applicant’s complaint falls to be examined only under Article 8 of the Convention (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018, and Strömblad v. Sweden, no. 3684/07, § 49, 5 April 2012) and that it is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.
13. Positive obligations inherent in effective “respect” for family life include an obligation for the national authorities to take measures with a view to reuniting parents with their children and to facilitate such reunions (see Ribić v. Croatia, no. 27148/12, § 89, 2 April 2015). Given that effective respect for family life requires that future relations between parent and child be determined solely in the light of all the relevant considerations and not by the mere passage of time (see Diamante and Pelliccioni v. San Marino, no. 32250/08, § 177, 27 September 2011), ineffective, and in particular delayed, conduct of custody and contact proceedings may give rise to a breach of positive obligations under Article 8 of the Convention (see Eberhard and M. v. Slovenia, nos. 8673/05 and 9733/05, § 127, 1 December 2009).
14. The determination of the present case before the District Court took from 16 October 2019 until 17 June 2022, that is 2 years and 8 months, during which time only three hearings were held. The remaining time was dedicated to questions of expert evidence which, according to the President of the Regional Court, had not been handled efficiently (see paragraph 7 above). For example, following the hearing of 27 January 2020, it took until 3 June 2020 for the court to order the taking of such evidence.
15. Regarding the expert evidence in toxicology, the presence of drugs in A’s system had to be established. By the nature of things, the usefulness of such test depended on his biological samples being taken promptly. After one expert had refused to give evidence, it ultimately took until 10 June 2020 for the samples to be taken and until 15 July 2020 for a newly appointed expert to file her report.
16. As regards the evidence concerning the psychological profiles and relations of and among those concerned, the expert appointed on 3 June 2020, almost 8 months after the start of the proceedings, was prevented from producing her report first due to illness and then an injury. A new expert was appointed on 21 December 2020 and filed her report on 10 June 2021.
17. A further body of expert evidence in the area of psychology was produced in the investigation into the suspicion of mistreatment of B in the applicant’s household. Once the applicant learned of the expert’s report (dated 7 December 2020) and since she had no direct access to it, on 14 January 2021 she requested that a copy of it be obtained by the District Court by force of its office. However, it took until 7 June 2021 for the court to do so. According to that report, no suicidal tendencies on the part of B had been established. The report also noted contrasting approaches to the upbringing of B in the new family of the applicant (marked by the strive for a healthy development of B’s personality and education, while setting clear rules and boundaries) on the one hand and in the environment of A and D (marked by unclear rules and a set of values based on material assets) on the other. This destabilised B who then tended to lie and selectively to choose what was more comfortable.
18. Irrespective of which individual person or institution is responsible for the above delays, they are ultimately imputable to the respondent State. They took place in a situation the legal contours of which were determined by interim measures. This interim situation by its nature favoured the re‑integration of B in the environment in Čadca which ultimately found its reflection in the District Court’s judgment of 17 June 2022 on the merits. It found that although the applicant’s environment was objectively more favourable for the development of B, both parents were capable of providing for B and, having re-integrated and settled in Čadca, B favoured staying with A.
19. In other words, in the situation created by the District Court’s interim measures and protracted by the delays in its proceedings, the matter was de facto determined by the passage of time, as demonstrated by its judgment of 17 June 2022, in particular in so far as it took into account the re-integration of B. into the environment in Čadca. Such result is incompatible with the authorities’ duty to handle cases such as the present one with exceptional diligence (see Strömblad, cited above, § 88; Ribić v. Croatia, no. 27148/12, § 92, 2 April 2015, with further references; Anagnostakis and Others v. Greece, no. 46075/16, § 71, 23 September 2021; and, a contrario, Rukavina v. Croatia (dec.), no. 770/12, 6 January 2015).
20. The delays in question took place prior to the Constitutional Court’s decision of 6 July 2021 and its assessment of the case contains nothing leading to a different conclusion.
21. Furthermore, the District Court’s judgment has not brought the case to a close as, almost four years from their commencement, the proceedings are still pending before the domestic courts.
22. The above considerations are sufficient to enable the Court to conclude that the procedural requirements inherent in the right to respect for family life under Article 8 of the Convention were not complied with.
There has accordingly been a violation of Article 8 of the Convention.
APPLICATION OF ARTICLE 41 OF THE CONVENTION
23. The applicant claimed 27,000 euros (EUR) in respect of non‑pecuniary damage.
24. The Government contested the amount of the claim as being clearly overstated.
25. The Court awards the applicant 9,750 EUR in respect of non‑pecuniary damage, plus any tax that may be chargeable.
26. As no claim in respect of costs and expenses has been made, there is no call for any award in that respect.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;
2. Holds that there has been a violation of Article 8 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicant, within three months, EUR 9,750 (nine thousand seven hundred and fifty euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 31 August 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Liv Tigerstedt Péter Paczolay
Deputy Registrar President
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