Višje sodišče v Ljubljani; 2022-11-10; IV Cp 1529/2022
Decision by national courts in the field of European Union law — ECLI:SI:VSLJ:2022:IV.CP.1529.2022
Date: 2022-11-10
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82022SI1110(51)_ENG_SUMJURE
JURE summary
JURE summary
This case, examined by the Višje sodišče v Ljubljani (hereinafter ‘the Court of Appeal’), concerned the alleged infringement of the father’s (hereinafter ‘the plaintiff’) personality rights and the right to family life, arising from the child’s continued residence abroad.
The parties were former unmarried partners and parents of a child born in 2012. In 2016, the mother (hereinafter ‘the defendant’) took the child to Croatia without the plaintiff’s consent. The Croatian courts rejected the plaintiff’s application for the child’s return under the Hague Convention (1). Subsequently, various proceedings were conducted before Slovenian courts concerning custody, contact and maintenance. By 2021, these proceedings were concluded by final decisions of the Court of Appeal, the Supreme Court, and the Constitutional Court. The child was entrusted to the defendant for care and upbringing, the plaintiff was granted contact rights, and the child’s habitual residence was established in Croatia.
In 2019, the plaintiff brought a civil action of an obligatory nature before the Court of First Instance, seeking both monetary compensation and injunctive relief. He alleged that the defendant’s retention of the child abroad constituted an unlawful interference with his personality rights and the right to family life and sought the child’s return to Slovenia. The Court of First Instance decided to separate the claims: the request for cessation of alleged violations and return of the child was transferred to non-contentious proceedings under Chapter 7 of the ZNP-1 (2), while the compensation claim continued under the rules of civil procedure. Later, however, the same court issued another order to return the case to civil proceedings. The Court of Appeal annulled this latter order, holding that the previous decision to transfer the matter had become final and binding, even if incorrect, and explaining that an error in choosing the procedural form constitutes only a relative procedural defect.
When deciding on the merits, the Court of First Instance rejected the plaintiff’s request in its entirety. It found that the defendant was exercising her parental rights lawfully, in accordance with the final judgments on custody and contact, and that the child’s residence in Croatia was not unlawful. The plaintiff’s later attempt to modify his application to reopen questions of custody, residence and contact was also rejected, since those issues had already been finally decided by prior judgments, and no change of circumstances had been alleged as required by Article 138(4) of the DZ (3). The court further held that Slovenian courts no longer had jurisdiction, as the child’s habitual residence was in Croatia.
The plaintiff appealed, alleging procedural errors and misapplication of the law. The Court of Appeal dismissed the appeal. It confirmed that courts are empowered to determine ex officio which procedural form applies and that the plaintiff’s claim, being of an obligatory nature arising from an alleged infringement of personality rights, should have been examined under the rules of civil procedure. However, as this procedural irregularity did not affect the lawfulness of the first-instance decision, it was not decisive. The Court of Appeal upheld the finding that the defendant’s conduct did not constitute unlawful retention, as the Slovenian courts had already lawfully determined custody and the child’s residence abroad. Those final judgments could not be reopened, as the principle of res judicata prevented it.
The Court of Appeal stated that neither the Hague Convention nor the new Brussels II Regulation (4) conferred jurisdiction on Slovenian courts, since proceedings on parental responsibility had been concluded and jurisdiction now lay with the courts of the child’s habitual residence. The plaintiff had not shown any new facts justifying a revision of custody or indicating that the child was at risk, requiring intervention under the DZ. Accordingly, the Court of Appeal confirmed that the defendant’s conduct was lawful and that the plaintiff’s claims effectively sought to circumvent final custody judgments under the guise of personality rights.
The appeal was therefore dismissed, and the decision of the Court of First Instance was upheld.
(1) Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.
(2) Zakon o nepravdnem postopku (Non-Contentious Civil Procedure Act).
(3) Družinski zakonik (Family Code).
(4) Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000.