PROCEDURE

The case originated in an application (no. 16608/09) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovenian national, Mr Andrej Furman (“the applicant”), on 23 March 2009.

The applicant was represented by Mr P. Čeh, a lawyer practising in Maribor. The Slovenian Government (“the Government”) were represented by their Agent, Mrs B. Jovin Hrastnik, State Attorney. The Austrian Government were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs.

The applicant alleged, in particular, that he had been unable to enjoy family life with his daughter on account of the lack of diligence on the part of the Slovenian and Austrian authorities in regulating and enforcing contact between them.

On 3 July 2012 the application was communicated to the Governments.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1955 and lives in Maribor. From 1991 to 1997 he lived with M.P. in an extramarital relationship. On 14 December 1993 the latter gave birth to their daughter, P.

In 1997 the applicant and M.P. separated and, with the assistance of the Maribor Social Work Centre (hereinafter “the Centre”), concluded an agreement determining the amount of child maintenance to be paid by the applicant for his daughter. Another agreement was concluded on 23 February 1998 setting up a provisional contact schedule governing the applicant’s contact with P. for the period from 24 February to 13 April 1998.

A. Contact proceedings before the Slovenian authorities and the enforcement of the relevant decisions

Having been unable to come to an agreement with M.P. as to a more permanent contact schedule, on 24 February 1998 the applicant asked the Centre to issue an order determining his contact rights. He sought contact with P. every Tuesday afternoon, every second Thursday afternoon, every other weekend, one week during the winter holiday and one month during the summer holiday.

It appears that, as of 13 April 1998, M.P. stopped letting the applicant have contact with P.

The first hearing in the case was scheduled for 18 June 1998 and subsequently adjourned at the request of M.P., who informed the Centre that she was taking holiday during the period in question.

On 14 June 1998 M.P. sent another letter to the Centre informing them that she would be living abroad in the period between 1 July 1998 and 31 August 1999 for the purposes of her doctoral studies. She requested that the contact proceedings be suspended during that period.

Further to the applicant’s objection to M.P.’s request for the suspension of the proceedings, the Centre’s social workers paid three visits to M.P.’s address in Maribor in order to establish whether she was still living in Slovenia. However, M.P. was not found at home on either occasion.

On 30 July 1998 the Centre sent a request to M.P.’s employer, Maribor University, to provide the address of her foreign residence.

On 26 August 1998 the applicant sought an interim order granting him contact with P.

On 4 September 1998 the Centre received a reply from Maribor University stating that M.P. was studying in Graz, Austria, but that they were unaware of her address. However, the university offered to serve M.P. with the summons to attend a hearing. The Centre scheduled a hearing for 22 October 1998, but the university was unable to reach M.P. and the hearing was adjourned.

On 29 October 1998 the Centre issued an interim order setting up a provisional contact schedule between the applicant and P. According to the order, the applicant was to have contact with P. once a month and for a week during both the winter and summer holidays. The applicant was supposed to pick up his daughter at M.P.’s permanent address in Maribor and bring her back to the same address.

Another hearing was scheduled for 10 December 1998 and subsequently adjourned, as the university was again unable to serve M.P. with the summons.

On 12 January 1999 Maribor University provided the Centre with the address of the Austrian university where M.P. was studying. The Centre thus sent the interim order of 29 October 1998 and a summons for a hearing scheduled for 11 February 1999 to M.P. at the address of that institution.

On 24 February 1999 M.P. appealed against the interim order of 29 October 1998, arguing that the provisional contact schedule could not be implemented, as she and her daughter were temporarily living in Graz, Austria.

On 1 March 1999 the Centre rejected M.P.’s appeal as out of time, whereupon she appealed to the Ministry of Labour, Family and Social Affairs (hereinafter “the Ministry”).

On 28 April and 18 June 1999 the Centre submitted the applicant’s requests for the enforcement of the interim order to the Maribor Administrative Unit. On 24 August 1999 the requests were granted; however, on 16 September 1999 M.P. appealed, claiming that the decision had not been correctly served on her. She also objected to the contents of the interim order.

On 27 September 1999 the Ministry upheld M.P.’s appeal against the interim order, quashed the order and remitted the issue of the provisional contact schedule for a fresh examination by the Centre. The Ministry found that the service of the interim order and the summons to the hearing of 11 February 1999 had not been effected in accordance with the rules of administrative procedure. The Ministry pointed out that in the event that a party was absent or lived abroad, he or she had to be invited to appoint a representative authorised to receive his or her official mail. As to the merits of the matter, the Ministry found that the facts of the case had not been duly established, owing to the difficulty of communicating with M.P.

On 7 October 1999 the Centre sent the Ministry’s decision, along with a request to M.P. to appoint a representative authorised to receive her official mail, to the Slovenian Embassy in Austria. The Embassy requested M.P. to collect the decision and the letter; however, she refused to do so. Subsequently, on 1 March 2000, M.P. was served with the documents at her workplace in Graz.

Meanwhile, on 5 January 2000 the Ministry also upheld M.P.’s appeal against the decision on the enforcement of the interim order. The case was remitted to the Maribor Administrative Unit and the enforcement proceedings were subsequently stayed as a result of the quashing of the interim order.

On 15 March 2000 M.P. informed the Centre of the address of her representative authorised to receive her official mail.

On 6 June 2000 M.P. submitted a proposal regarding the contact schedule between the applicant and P., and on 12 June 2000 the applicant made a counter-proposal. On 30 June 2000 the Centre invited M.P. to provide certain information regarding her daughter’s residence, living conditions and education. On 19 July 2000 M.P. sent a reply to the Centre, without, however, providing the requested information on P. On 21 July 2000 the Centre again invited M.P. to provide the information, to which she responded on 14 August 2000, but again failed to provide answers to the Centre’s questions.

On 29 September 2000 the Centre held a hearing in the applicant’s presence. M.P., however, did not attend, although a summons had been correctly served on her authorised representative. The applicant reiterated his request for the setting up of a contact schedule between him and P.

On 5 October 2000 the Centre issued an order granting the applicant contact with P. every Tuesday afternoon, every first weekend of the month and a few weeks during the winter and summer holiday periods. According to the order, an appeal against the contact schedule would not have a suspensive effect.

On 22 November 2000 M.P. appealed against the order before the Ministry.

On 4 and 28 December 2001 and on 23 January 2002 the applicant requested that the contact schedule be enforced.

On 13 March 2002 the Maribor administrative unit rejected the applicant’s request for enforcement, stating that the order of 5 October 2000 was unenforceable as the Centre had failed to specify the place at which the applicant was to pick up and drop off his daughter. Subsequently, on 10 June 2002 the Centre informed the applicant that the order could not be supplemented with the required information, as M.P.’s appeal against it was pending before the Ministry.

On 19 July 2002 the Ministry upheld M.P.’s appeal against the order of 5 October 2000, confirming the reasoning of the administrative unit that the order was unenforceable. Moreover, the facts of the case had still not been properly established. The case was remitted to the Centre with the instruction to acquire information on M.P.’s and P.’s place of residence, P.’s schooling and her afternoon activities.

On 30 September 2002 the Centre invited M.P. to provide them with the information requested by the Ministry in their decision of 19 July 2002. She did not reply.

On 27 February 2003 the Centre contacted the Ministry for Foreign Affairs with a view to finding the address of M.P. and P. On 7 May 2003 the Centre was informed that the Slovenian Embassy in Austria had been unable to obtain such information.

On 16 May 2003 the Centre addressed a request for assistance in obtaining the information on M.P.’s and P.’s address to the Ministry. As no reply was received, the Centre requested assistance again on 28 May 2004.

Further to legislative changes by which on 1 May 2004 the courts acquired jurisdiction to decide on issues relating to rights of contact, in June 2004 the applicant instituted proceedings before the Maribor District Court. At the District Court’s request, the applicant supplemented his application on 3 August 2004.

The Maribor District Court scheduled a hearing for 6 October 2004; however, M.P. was unable to attend and only the applicant appeared in court. He complained that M.P. was in the habit of evading the proceedings and that, as a result, he had not seen P. for six years.

On 5 January 2005 M.P. informed the Maribor District Court that she and P. had not resided at their Slovenian address for a number of years and that she had kept that address only for the purpose of receiving mail. However, she failed to provide her address in Austria. M.P. proposed that the Slovenian courts relinquish their jurisdiction in the matter in favour of the Austrian courts.

On 13 July 2005 the applicant sent a letter to the Graz Youth and Family Office asking them for help in re-establishing contact with P. He explained that M.P. had been preventing him from having contact with his daughter and had evaded the proceedings conducted by the Centre and the Maribor District Court. He also attached a letter he had written to P., with photos of him and his family. The applicant’s letter was handed over to M.P. by a social worker on 6 October 2005.

The Maribor District Court scheduled another hearing for 14 November 2005, but since M.P. had not been served with a summons to attend, the hearing was adjourned. Scheduling further hearings, on 2 November 2005 the Maribor District Court asked the Graz District Court for Civil Matters to serve a summons on M.P. in accordance with Council Regulation (EC) No. 1348/2000 of 29 May 2000 on the service in member States of judicial and extrajudicial documents in civil or commercial matters. The court also attempted to serve the document on M.P. through the Slovenian Embassy in Austria. However, its attempt was unsuccessful; both the embassy and, on 12 January 2006, the Graz District Court for Civil Matters notified the Maribor District Court that M.P. did not appear to be living at the indicated address. The Maribor District Court continued sending mail to M.P.’s address in Maribor.

On 13 December 2005 the Maribor District Court again asked the Graz District Court for Civil Matters to serve a summons on M.P. in Austria. The mail was delivered to her at the Graz District Court for Civil Matters on 7 March 2006, after the Graz court had obtained information on M.P.’s address from the Registration Office and two unsuccessful attempts had been made to serve the summons at her home address.

Meanwhile, on 9 December 2005 the Maribor District Court requested the Graz District Court for Civil Matters to obtain a report on P.’s situation from the Graz Youth and Family Office. It appears that the request was sent to the Austrian court on 23 March 2006 and received by the District Court for Civil Matters on 29 March 2006. The latter submitted it to the Youth and Family Office on 30 March 2006. The social worker in charge of the case requested three times to meet with M.P. and P. in order to prepare the report, but without success. It appears that M.P. did not attend the first two meetings for work-related reasons. On the last occasion M.P. replied that she and her daughter would be spending the next few months abroad. On 7 July 2006 the Graz Youth and Family Office reported back that M.P. had refused to cooperate. A further request for a report was submitted on 28 September 2006. On 20 October 2006 the Youth and Family Office notified the District Court for Civil Matters that M.P. could not be reached because she was abroad at the time. On 15 November 2006 the latter court sent a reply to the Maribor District Court, which received it on 4 December 2006.

On 7 February 2007 the Maribor District Court held a hearing and on the same day issued an order setting out a contact schedule. M.P. did not attend the hearing; however, she informed the court that P. did not wish to have contact with the applicant. The court ruled that the applicant could visit P. every two weeks by picking her up at M.P.’s home. The court found that there were no objective reasons for P. to refuse contact with her father and that she had been influenced by M.P.’s negative attitude towards the applicant. It also criticised M.P.’s conduct and her “uncooperative attitude”.

M.P. appealed against the contact order.

On 5 July 2007, on the applicant’s proposal, the Maribor District Court issued an enforceable interim order allowing him contact with P. every two weeks, whereby once a month he was to visit her at her address in Austria and the other time P. was to visit him in Slovenia. Following an objection on the part of M.P. in which she stated that she was unwilling to take P. to Slovenia, on 21 January 2008 the Maribor District Court modified the interim order so that visits could take place only in Graz. M.P. was ordered to comply with the terms of the order, subject to a fine of 200 euros (EUR) for each breach.

On 1 September 2007 the applicant saw P. for the first time in more than nine years. They had contact again on 6 October 2007. On the latter occasion, P. left after less than an hour, after which she refused to see the applicant again, although he attempted to see her on at least two more occasions.

On 15 May 2008 the Maribor Higher Court dismissed an appeal lodged by M.P. against the contact order of 7 February 2007. Consequently, the order became final.

Meanwhile from April to June 2008, the applicant requested five times that a fine be imposed on M.P. for failure to comply with the interim contact order (3 April 2008, 15 April 2008, 23 April 2008, 16 May 2008 and 11 June 2008).

On 12 June 2008 the applicant requested for the sixth time that a fine be imposed on M.P. On 11 September 2008, the Maribor District Court explained to the parties that the contact proceedings had been concluded by a final decision and the Maribor Local Court was competent to decide on the enforcement of the contact order. The District Court referred the applicant’s further request for enforcement of 3 October 2008 to the Local Court. Subsequently, the applicant lodged another three requests for enforcement on 29 December 2008, 25 March 2009 and 27 March 2009.

Meanwhile, on 10 February 2009, the applicant lodged a supervisory appeal under the Right to Trial without Undue Delay Act (hereinafter “the 2006 Act”) with a view to accelerating the enforcement proceedings.

On 3 March 2009, the Maribor Local Court imposed a fine in the amount of EUR 600 on M.P. for not complying with the contact order. On 4 March 2009 the President of the Maribor Local Court, in the context of the proceedings in respect of the 2006 Act, informed the applicant of the decision taken the day before. On 1 April 2009 the applicant replied that none of his other requests had yet been resolved.

M.P. having appealed against the fine, on 28 July 2009 the Maribor Higher Court set aside the impugned order, stating that a deadline should have first been set for M.P. to comply with the contact order. On 23 April 2010 the Maribor Local Court invited the applicant to supplement his request for enforcement. On the basis of that request, a new enforcement order was issued on 2 November 2010, ordering M.P. to allow contact between the applicant and P., subject to a fine in the amount of EUR 500. M.P. appealed against the order.

On 4 September 2012 the Maribor Local Court quashed all the enforcement acts executed until that date and dismissed the applicant’s request for enforcement, finding that since the contact between the applicant and P. was to take place in Austria, the Austrian courts had jurisdiction to decide on the enforcement.

B. Suspension of the applicant’s contact rights by the Austrian authorities

On 30 September 2008 P. lodged a request with the Graz-West District Court seeking suspension of the applicant’s contact rights.

On 11 November 2008 P. gave a statement before the District Court, alleging that throughout the period in which she had been living in Austria the applicant had not wished to have any contact with her and had made no attempts to see her. She further maintained that he had not obtained a court order setting out a contact schedule until 2007. Two visits had been carried out. However, since he had been criticising M.P., she had refused to have any further contact with him, and she had repeatedly told him so. P. also said that she had no relationship with her father and that she was afraid that he would take her to Slovenia.

The applicant made a statement before the Maribor District Court on the basis of a letter rogatory submitted by the Austrian authorities. On 27 March 2009 the Graz-West District Court suspended his contact rights. It found that P. had consistently expressed her wish not to have contact with the applicant and concluded that contact against her wishes would not be in her interest. The court also found that M.P. had not obstructed contact and that the applicant had stated in the proceedings that he would respect P.’s wish not to have contact with him.

On 31 August 2009 the Graz Regional Civil Court dismissed an appeal lodged by the applicant, finding that there was no indication that P. had been manipulated by M.P. or was not expressing her wishes freely.

C. Proceedings concerning monthly child maintenance conducted before the Austrian authorities

On 21 June 2008 M.P. asked the Graz-West District Court to increase the monthly child maintenance from EUR 137 to EUR 250 on the grounds that P.’s needs, as well as the general cost of living, had increased since 1997 when she and the applicant had concluded the maintenance agreement.

On 12 February 2009 the court, taking into account the financial situation of both parents, allowed M.P.’s request.

An appeal lodged by the applicant was dismissed by the Graz District Court for Civil Matters on 7 August 2009.

During the proceedings, the applicant sent a number of letters to the courts in Graz complaining that the court documents were in German, which he did not understand, and requesting that the issue be decided by the Slovenian authorities.