FIFTH SECTION
Application no. 16608/09
Andrej FURMAN
against Slovenia and Austria
lodged on 23 March 2009
STATEMENT OF FACTS
The applicant, Mr Andrej Furman, is a Slovenian national, who was born in 1955 and lives in Maribor.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant lived in an extramarital relationship with M.P. (hereinafter referred to as “the mother”) from 1991 to 1997. On 14 December 1993 their daughter P.F., later renamed P.F.P. (hereinafter referred to as “the child”), was born.
In 1998 the applicant and the mother separated and signed an agreement, according to which the mother was to have custody (varstvo in vzgoja) of the child. The agreement also regulated division of their property and a monthly allowance for the child.
1. Contact arrangement proceedings before Slovenian Authorities and enforcement of related decisions
As the applicant and the mother failed to agree on the contact arrangements, the applicant requested, on 24 February 1998, the Maribor Social Welfare Centre (“the Maribor Centre”) to issue an administrative decision on the matter. He asked to have contact with the child every Tuesday, every second weekend, one week during winter holiday and one month during summer holiday and so on.
On 13 April 1998 the mother started to obstruct the applicant’s contact with the child.
The first hearing in the case was scheduled for 16 June 1998. It was adjourned at the request of the mother who said that she was taking holiday during the period in question.
On 14 June 1998 the mother sent another letter to the Maribor Centre informing them that she would be living in a foreign country in the period between 1 July 1998 and 31 August 1999 for the purposes of her doctorate studies. She requested that the proceedings concerning contact arrangements be suspended during this period.
A hearing was held on 22 October 1998 in the absence of the mother.
On 29 October 1998 the Maribor Centre issued an interim order setting out provisional contact arrangements.
Another hearing was held on 10 December 1998. The mother did not attend the hearing. After serving the interim order and the summons on the mother via the Graz University, she appealed to the Ministry of Labour, Family and Social Affaires (“the Ministry”).
A hearing was scheduled for 12 January 1999.
On 8 February 1999 the mother, referring to her previous letter, informed the Maribor Centre that she would not be available until 31 August 1999. She still did not inform them of her new address. The Maribor Centre then tried to obtain her new address from the Maribor University where she was employed during the postgraduate studies. The University replied to the Centre that the mother was studying in Graz but that they were unaware of her address. On 30 October the Maribor University informed the Maribor Centre that the mother was temporarily in the United States of America as part of an exchange programme of the Graz University.
Subsequently, the Ministry quashed the interim order and remitted the issue of provisional arrangements for re-examination on 30 September 1999.
In March 2000, the Maribor Centre served, through the Slovenian Embassy in Austria, the Ministry’s decision as well as its letter on the mother. In the letter, the Ministry requested the mother to appoint a legal representative, who would be authorised to receive her mail. The mother consequently appointed a legal representative in Slovenia.
On 23 June 2000 the expert commission of the Maribor Centre met and subsequently issued an opinion which was sent to the parties for comments. The mother was at the same time requested to send certain information, including an update on the contact between the child and the applicant. The mother did not reply.
On 5 October 2000 the Maribor Centre issued a decision setting out contact arrangements between the applicant and the chid (the contact order). The mother lodged an appeal against the decision. On 23 November 2000 the Ministry received her appeal.
On 22 November 2000 the mother collected a decision allowing her to change a family name of the child at the office of the Maribor Administrative Unit. The child was now called P.F.P.
On 3 December 2001 the applicant requested that the contact order be enforced. On 11 January 2002 the Maribor Centre inquired about the mother’s and the child’s address and found out that that they had not lived at their registered permanent address in Maribor, Slovenia, for the last four years.
On 13 March 2002 the Maribor Administrative Unit rejected the applicant’s request for enforcement. However, the Maribor Centre held a meeting with the applicant where they discussed the possibilities of realising the contact with the child.
On 19 July 2002 the Ministry upheld the mother’s appeal against the contact order and remitted the case to the Maribor Centre instructing the Centre to find out the mother’s and the child’s address, the information about the child’s schooling and her timetable.
On 30 September 2002 the Maribor Centre invited the mother to provide them with the information requested by the Ministry in their decision of 19 July 2002. She did not reply.
The Maribor Centre then contacted the Slovenian Embassy in Austria with a view to finding the mother’s and the child’s address. The Centre was informed that such information was not available in Austria and was advised to contact the Ministry. In May 2003 and May 2004 the Maribor Centre inquired with the Ministry about the mother’s and the child’s address. In their report of 11 June 2004, the Maribor Centre noted that no reply was received and that the mother’s address remained unknown.
Further to the legislative changes by which the courts acquired jurisdiction to adjudicate issues relating to contact rights, the applicant, in June 2004, instituted proceedings before the Maribor District Court.
On 13 July 2005 the applicant sent a letter to the Graz Welfare Centre asking them for help in restoring contact with the child. He also attached a letter he wrote to the child to which photos of him and his family were attached.
On 15 February 2006 the Maribor Centre submitted a report which found that the contact between the applicant and the child would be in the latter’s interest.
The mother did not reply to any of the court’s writings. She, however, submitted a reply to the applicant’s claim in which she maintained that the child had declined to have any contact with the applicant. Relying on European Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters, the Maribor District Court requested a court in Graz to obtain from the Graz Welfare Centre a report on the child’s situation. The Graz Welfare Centre reported back that the mother refused to cooperate.
The court held a hearing on 7 February 2007, which the mother did not attend.
On the same day, the Maribor District Court issued a decision setting out contact arrangements (“the contact order”) according to which the applicant could visit the child every two weeks by picking her up at mother’s home. The court found that there were no objective reasons for the child to refuse contact with her father and that she had been influenced by the mother’s negative attitude towards the applicant. It also criticised the mother’s conduct and her “ignorant attitude”. The court found that in view of the fact that the applicant and the child had had no contact for nine years the initial visiting arrangements should be limited but could later be extended.
The mother appealed.
On 5 July 2007 the Maribor District Court issued an interim order which provided that the applicant should be able to visit the child every two weeks at her address in Austria [full address is mentioned in the decision] and at his address in Slovenia, in turn.
On 1 September 2007 the applicant saw the child for the first time in more than nine years. They had contact again on 6 October 2007. On the latter occasion, the child left after less than an hour.
Following the mother’s objection, in which she had stated that she had been unwilling to bring the child to Slovenia, the Maribor District Court, on 21 January 2008, modified the interim order so that visits were to take place only in Graz.
On 15 May 2008 the Maribor Higher Court rejected the mother’s appeal against the contact order of 7 February 2007. Consequently, the latter became final.
It would appear that despite the applicant’s efforts, the contact between him and the child had not been realised since their last meeting on 6 October 2007. Every time the applicant arrived to the house where the child lived with her mother and the latter’s partner, the child refused to come out or she told the applicant to leave.
Between 3 April 2008 and 27 March 2009 the applicant lodged ten requests for the enforcement of the contact order.
On 3 March 2009 the Maribor Local Court allowed the enforcement by imposing a fine of 600 euros (EUR) on the mother. However, further to the mother’s appeal, the Maribor Higher Court quashed the Maribor Local Court’s decision finding that the court had wrongly applied the law as it had not, inter alia, set a deadline for the mother to comply with the obligation.
In the meantime, on 10 February 2009, the applicant lodged a supervisory appeal claiming that the enforcement proceedings were not conducted in a due time and that only one of his requests was being dealt with by the court. On 4 March 2009 the President of the Maribor Local Court informed him of the decision taken on 3 March 2009 (see above).
2. Withdrawal of the applicant’s rights of access by the Austrian authorities
On 30 September 2008 the mother and the child lodged a request with the West Graz Local Court (Bezirksgericht Graz-West) seeking withdrawal of the applicant’s rights of access.
On 11 November 2008 the child gave a statement before the West Graz Local Court in which she requested that the applicant be prohibited from having any contact with her. She stated that since her move to Austria the applicant had not wished to have any contact with her and had made no attempts to see her. She further maintained that it had been only in 2007 that he had obtained a court decision setting out contact arrangements. Two visits were carried out. However, since he had been criticizing her mother, she had refused to have any further contact with him, which she had repeatedly told him. The child also said that she had no relationship with her father and that she was afraid that he would take her to Slovenia.
On 27 March 2009 the West Graz Local Court withdrew the applicant’s rights of access. It found that the child had consistently expressed her wish not to have contact with the applicant. It concluded that contact against her wishes would not be in her interest. The court also found that the mother had not obstructed contact and that the applicant had stated in the proceedings that he would respect the child’s wish not to have contact with him.
On 31 August 2009 the Graz Regional Court for Civil Matters (Landesgericht für Zivilrechtssachen Graz) rejected the applicant’s appeal finding that there was no indication that the child had been manipulated by her mother or was not expressing her wishes freely.
3. Proceedings concerning monthly allowance conducted before Austrian authorities
On 21 June 2008 the mother requested West Graz Local Court to increasethe monthly child allowance to EUR 250.
On 12 February 2009 the court, noting that the applicant had until then been paying EUR 137 of monthly allowance, allowed the mother’s request.
The applicant’s appeal was rejected by the Graz Regional Court for Civil Matters on 7 August 2009.
On 19 May 2009 the West Graz Local Court rejected the applicant’s request for reimbursement of costs for legal representation in the amount of EUR 600 finding that in the proceedings concerning alimony for minors no reimbursement of costs was possible. His appeal was rejected by the Graz Regional Court for Civil Matters on 7 August 2009.
During the proceedings, the applicant sent numerous letters to the courts in Graz complaining that the court writings were in German, which he did not understand, and requesting that these matters be decided by the Slovenian authorities. Both decisions of the Graz Regional Court for Civil Matters appear to be translated to Slovenian and the translations served on the applicant.
4. Proceedings concerning the child’s citizenship
On 3 November 2008 the mother filed a request by which she wished to renounce the child’s Slovenian citizenship so that the latter would be able to obtain Austrian citizenship. The child agreed with the request. The applicant refused to give his consent.
On 20 March 2009 the Ministry, referring to the dispute between the parents and finding that it had not been demonstrated that the revocation of the Slovenian citizenship would have bring about any advantage for the child, rejected the request.
Notwithstanding the above, it would appear that the mother and the child at some point obtained Austrian citizenship.
B. Relevant domestic law
For the relevant domestic law see Eberhard and M. v. Slovenia, no. 8673/05 and 9733/05, §§ 63-73, 1 December 2009; S.I. v. Slovenia, no. 45082/05, §§ 52-54, 13 October 2011, and V. v. Slovenia, no. 26971/07, § 53, 1 December 2011.
In particular, section 114 of the Marriage and Family Relations Act (Zakon o zakonski zvezi in družinskih razmerjih, (old)
“... 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.”
Further to the amendment to the Marriage and Family Relations Act which entered into force on 1 May 2004 (Official Gazette no. 16/2004), the previous section 114 was annulled and sections 107 and 113 added. The latter reads, in so far as relevant, as follows:
“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 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 welfare centre, do not reach an agreement ...., the court decides on these issues.
...”
Furthermore, section 106 of the amended act provides:
“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 ...”
For the international law, in particular as regards the 1980 Hague Convention on the Civil Aspects of International Child Abduction, see Maumousseau and Washington v. France, no. 39388/05, § 43, 6 December 2007. Article 21 of the aforementioned Convention provides as follows:
“An application to make arrangements for organising or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child.
The Central Authorities are bound by the obligations of co-operation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of those rights may be subject. The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights.
The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organising or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject.”
COMPLAINTS
Invoking Article 13 of the Convention and Article 5 of Protocol no. 7 to the Convention, the applicant complains that he has been unable to enjoy family life with his daughter P.F.P. because of the actions and omission of the Slovenian and Austrian authorities. In particular, he complains that the Slovenian authorities failed to issue a decision regulating his access to P.F.P. in due time, which was partially related also to the Austrian authorities’ non-cooperative attitude. Further, he complains that once the decision was issued, Slovenian and Austrian authorities failed to enforce it.
The applicant wishes to pursue the above complaint also on behalf of his daughter P.F.P. as well as on behalf of his three children from the current relationship, who he alleges were unable to enjoy family life with their half-sister.
Furthermore, the applicant complains under Article 4 of Protocol no. 7 to the Convention that the court in Graz decided again the issue of alimony and of rights of access, although this had previously been determined by the Slovenian authorities.
The applicant also complains under Articles 6 § 3 (a), (d) and (e) of the Convention that the court in Graz communicated with him in German language which he did not understand, whereas it should use his native language or grant him a free translator.
QUESTION TO THE PARTIES
Has there been a breach of Article 8 of the Convention on account of the Slovenian and/or Austrian authorities’ failure to take effective and expeditious measures, under the domestic and/or International Law, with a view to enabling the applicant to have contact with his daughter P.F.P. (see Ignaccolo-Zenide v. Romania, no. 31679/96, § 94, ECHR 2000‑I; Maumousseau and Washington v. France, no. 39388/05, § 83, 6 December 2007, and V.A.M. v. Serbia, no. 39177/05, § 141-142, 13 March 2007)?
In addition, the Slovenian Government is also requested to specify what domestic procedural tools were available to the authorities in respect of the service of the official summons on the mother.
Both respondent Governments are requested to specify what measures, including any avenues available under the applicable International Law, could have been used with a view of obtaining by their authorities the address of the mother’s actual residence?
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