Vrhovno sodišče; 2022-12-08; I Ips 50140/2018
Decision by national courts in the field of European Union law — ECLI:SI:VSRS:2022:I.IPS.50140.2018
Date: 2022-12-08
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82022SI1208(51)_ENG_SUMJURE
JURE summary
JURE summary
The legally protected interest in the offence at issue is solely the right of a minor to be placed with the person to whom he or she has been entrusted. The position of the victim, which must always be assessed by interpreting the concept in the substantive-law sense, therefore belongs solely to the child. Even though the defendant, by his conduct, also interfered with the rights of the child’s mother, to whom the child has been entrusted for care and upbringing by an interim order, this criminal offence does not protect her rights directly. The rights of that person are protected only indirectly.
In the event of an international child abduction, the affected parent has two options for legal protection. First, in the State to which the child has been wrongfully removed, that parent may request a prompt and simplified procedure for the child’s return under the Hague Convention (1). Secondly, in the State of origin from which the child was abducted, the parent may, in accordance with the rules on jurisdiction set out in the new Brussels II Regulation (2), seek a substantive decision on the dispute concerning parental responsibility (custody, care and contact with the child).
In this case, the defendant took advantage of both remedies, which are not mutually exclusive and concern different matters, so they do not compete with one another. The decision regarding the return of the child does not affect the court’s decision on custody, care or contact. Therefore, it is not true that, once it has been decided that the child must be returned to the State of origin, the child’s upbringing, care, and contact with the parents can be exercised only in that State, irrespective of the parents’ place of residence or of the court’s decision on custody, care and contact.
(1) Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.
(2) 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.