THIRD SECTION
DECISION
Application no. 34566/02
by Borut GRADIŠNIK
against Slovenia
The European Court of Human Rights (Third Section), sitting on 17 January 2008 as a Chamber composed of:
Corneliu Bîrsan, President,
Boštjan M. Zupančič,
Elisabet Fura-Sandström,
Alvina Gyulumyan,
Egbert Myjer,
David Thór Björgvinsson,
Ineta Ziemele, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 4 September 2002,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the observations submitted by the respondent Government,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Borut Gradišnik, is a Slovenian national who was born in 1952 and lives in Sevnica. He was represented before the Court by Mrs M. Nosan, a lawyer practising in Celje. The Slovenian Government (“the Government”) were represented by their Agent, Mr L. Bembič, State Attorney-General.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Proceedings before the administrative organs
On 12 December 1994 A.G. was born out of wedlock to the applicant and his partner N.R.
In 1999 the applicant and N.R. separated and A.G. stayed with her mother.
On 11 August and 8 September 1999 respectively, N.R. and the applicant requested the Sevnica Centre for Social Work (Center za socialno delo Sevnica, the “Centre”) to award them custody over A.G. The applicant argued that N.R. had been obstructing the contacts between him and his daughter. Due to the inability to reach an agreement with N.R, the applicant, on 20 September 1999, also requested the Centre to define his visitation rights.
On 29 December 1999 the applicant and N.R. reached a written agreement on the length and intervals of the visits. Therefore the applicant withdrew the request for definition of his visitation rights of 20 September 1999.
On 20 January 2000, due to N.R.’s failure to respect the agreement of 29 December 1999, the applicant initiated enforcement proceedings before the Sevnica Administrative Unit (“the Unit”).
On 21 February 2000 the Unit allowed the enforcement and ordered N.R. to allow contacts or she would be fined 5,000 Slovenian tolars (approximately 20 euros). This decision was quashed by the Ministry of Interior (Ministrstvo za notranje zadeve) on 27 March 2000. The Unit allowed the execution again on 5 May 2000. Between 16 August 2000 and 18 January 2001, pursuant to this decision, the Unit imposed fifteen fines of 10,000 Slovenian tolars (approximately 40 euros) on N.R.
In the meantime, the question of the custody remained open. On 3 April 2000 the applicant repeated his request to be awarded custody over his daughter. On 28 April 2000 the Centre nominated the Advisory Centre for Children, Youth and Parents (Svetovalni center za otroke, mladostnike in starše) to deliver an expert opinion on the question of the custody. Following its advice, the Centre issued an interim decision severing any contacts between the applicant and A.G. on 29 September 2000.
On 14 October 2000 the applicant appealed to the Ministry of Labour, Family and Social Affairs (Ministrstvo za delo družino in socialne zadeve -”the Ministry”).
On 23 April 2001, after a hearing, the Centre awarded N.R. the custody of A.G. and limited the applicant’s visitation rights to one supervised two-hour meeting per week.
On 12 May 2001 the applicant appealed to the Ministry.
On 11 September 2002 the Ministry allowed appeals of 14 October 2000 and 12 May 2001, annulled the challenged decisions and remitted the case to the Centre for re-examination.
Due to the amendments of the Marriage and Family Relations Act (Zakon o zakonski zvezi in družinskih razmerjih), which entered into force in August 2001, all undecided cases concerning custody were transferred to the courts. Therefore, only the question of visitation rights remained open before the Centre.
On 9 October 2002 the applicant and N.R. reached a new agreement on the applicant’s contacts with A.G. The following day the Centre terminated the proceedings.
It appears that despite the above agreement, the visits were not always held as planed and that the applicant again initiated proceedings for the definition of his visitation rights.
On 20 May 2004 the Centre delivered a new decision. It ordered N.R. to facilitate the applicant’s access to A.G. every Tuesday afternoon, one Saturday and one weekend every month. It also defined the time A.G. would spend with the applicant during the holidays.
On 2 June 2004 N.R. appealed against this decision.
On 19 November 2004 the Ministry dismissed R.N.’s appeal.
On 28 December 2004 the applicant sought enforcement of the Centre’s decision on visitation, because R.N. again prevented contacts between him and his daughter.
2. Proceedings before the court
On 4 September 2001, after the amendments of the Marriage and Family Relations Act entered into force (see above), the applicant instituted proceedings in the Krško District Court (Okrožno sodišče v Krškem) against N.R. seeking custody of A.G. He also requested that an interim measure be issued and that he be awarded temporary custody.
Between 22 November 2001 and 23 September 2003 the court held five hearings.
During the proceedings the court appointed an expert in psychology. The court also sought two additional opinions from the appointed expert.
At the last hearing the court decided to deliver a written judgment. On 23 September 2003 the judgment dismissing the applicant’s claims was rendered.
On 4 November 2003 the applicant appealed to the Ljubljana Higher Court (Višje sodišče v Ljubljani).
On 21 July 2004 the court upheld the appeal, annulled the first-instance court’s judgment and remitted the case for re-examination.
On 24 September 2004 the Krško District Court appointed a psychiatrist to deliver an expert opinion. Upon R.N.’s objection, the court appointed a new expert on 27 October 2004.
On 14 April 2005 the court held a hearing and decided to deliver a written judgment.
On 25 May 2005 the Krško District Court handed down a judgment dismissing the applicant’s claims.
On 1 June 2005 the applicant appealed to the Ljubljana Higher Court.
On 13 July 2005 the court dismissed the appeal.
COMPLAINTS
The applicant complained under Article 6 § 1 of the Convention that his right to a fair trial was violated by an excessive length of administrative and court proceedings. In substance, he also complained under Article 13 of the Convention about the lack of an effective domestic remedy in respect of the excessive length of the proceedings.
THE LAW
On 15 February 2006 the Court decided to communicate the application to the respondent Government.
On 15 May 2006 the Government’s observations on the admissibility and merits of the application were received and the applicant was invited to submit his written observations in reply by 30 June 2006. This deadline was subsequently extended until 15 September 2006.
As the applicant’s observations had not been received by that date and no extension of time had been requested, the applicant was advised on 25 September 2006 by registered mail that the failure to submit his observations might result in the strike-out of his application.
As it appears from the acknowledgement-of-receipt card, the letter was received by the applicant’s attorney on 2 October 2006. The applicant has not replied.
The Court recalls Article 37 of the Convention which, in the relevant part, reads as follows:
“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
(a) the applicant does not intend to pursue his application;
...
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”
The Court notes that the applicant was advised that he should submit written observations in reply to those submitted by the Government. No response has been received to date. The Court infers therefrom that the applicant does not intend to pursue his application. Furthermore, it considers that respect for human rights as defined in the Convention and its Protocols does not require it to continue the examination of the case.
Accordingly, Article 29 § 3 of the Convention should no longer apply to the case and it should be struck out of the list in accordance with Article 37 § 1 (a) of the Convention.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Santiago QuesadaCorneliu Bîrsan
RegistrarPresident
Full & Egal Universal Law Academy