Published on 24 October 2022
FIRST SECTION
Applications nos. 27746/22 and 28291/22
X and Others against Slovenia
lodged on 1 June 2022 and 8 June 2022 respectively
(see list appended)
communicated on 4 October 2022
SUBJECT MATTER OF THE CASES
The applicants are the mother (the first applicant) and her three children (second applicant, born in 2011, third and fourth applicant, born in 2014). Further to the separation of the first applicant and the applicant children’s father in 2018, the applicant children lived with the first applicant (based on an interim care order issued by judge H of the Ljubljana District Court). On 8 November 2019 judge P of the Ljubljana District Court, to whom the case had in the meantime been allocated, issued an interim care order in favour of the father, finding that the first applicant had obstructed the execution of the applicant children’s contact with their father and had probably sought to alienate them. The first applicant alleges that the children were not attached to their father already prior to the break-up of the marriage.
On 16 March 2020, after the first applicant had taken the applicant children (with the knowledge of social workers) from the visit organised at the welfare centre to her home, judge P issued a decision ordering a removal of the applicant children from the first applicant by a (regular) bailiff. The removal was carried out on 17 March 2020, by a bailiff and two of his aides and took several hours. During the removal, judge P seemed to have insisted that it should proceed despite the applicant children’s strong resistance. One of the applicant children required medical attention during this event.
Since 17 March 2020 the applicant children have had either no or very limited contact with the first applicant.
On 17 November 2020 the first applicant had requested a new interim care order. The request was dismissed by judge P. She had made the same request on 8 January 2021, which was likewise dismissed.
During the above-mentioned proceedings concerning the custody and contact rights, which are still ongoing, the first applicant made several requests for exclusion of judge P from dealing with the case. She alleged and continue to allege that judge P is biased and has not been appointed in line with the rules set out in the applicable legislation. Her requests were dismissed by the vice-president or the president of Ljubljana District Court.
On 5 February 2021 the Ljubljana Higher Court dismissed the first applicant’s appeals concerning the request for an interim care order of 17 November 2020 and her requests concerning the exclusion of judge P.
On 3 February 2022 the Constitutional Court decided not to accept for consideration the first applicant’s constitutional complaints relating to the Ljubljana Higher Court’s decision of 5 February 2021. The Constitutional Court found that the first applicant’s allegations concerning the allegedly unlawful allocation of her case to judge P and the latter’s bias were unfounded. It also noted that the applicant children’s wish expressed during the contact and to the welfare authorities had not necessarily reflected their true opinion and that the first applicant had failed to make a request for an extended contact.
In the meantime, on 8 March 2021, the Ljubljana Higher Court dismissed the first applicant’s appeals concerning the dismissal of her objection against the enforcement decision of 16 March 2020 and her request for the interim care order of 8 January 2021. On 10 February 2022 the Constitutional Court dismissed her petition in which she challenged the legislation regulating enforcement of care orders. The Constitutional Court found that a new law had been prepared following the removal of the applicant children with a view to improving the procedure for enforcement of care orders. It declined to accept for consideration her constitutional complaint against the Ljubljana Higher Court’s decision of 8 March 2021.
In application no. 277746/22, referring to the proceedings which ended by the Constitutional Court’s decision of 3 February 2022, the applicants complain, under Article 6 § 1 of the Convention, that the case was allocated to judge P unlawfully, that that judge lacked impartiality, and, under Article 8 of the Convention, that the applicant children have been unable to enjoy family life with the first applicant.
In application no. 28291/22, referring to proceedings which ended by the Constitutional Court’s decision of 10 February 2022, the applicants complain under Article 8 that the applicant children’s wish to live with the first applicant has been disregarded by the domestic authorities, that the applicant children were treated like “objects” in the proceedings, without any rights, and that the decision to forcibly remove the applicant children was unjustified. In their opinion, the restrictions on the first applicant’s custody rights and access to the applicant children lacked any basis. The applicants also complain that the applicant children were subjected to the treatment incompatible with Article 3 during their forcible removal based on the decision of 16 March 2020.
QUESTIONS TO THE PARTIES
1. Have the applicant children been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention, during their forcible removal based on the decision of 16 March 2020? Have they exhausted available effective remedies with regard to this complaint? If the Government are of the view that the applicant children have failed to exhaust effective remedies, they are invited to submit in this connection the domestic courts’ case-law concerning situations similar to the one in the present case.
2. Did the proceedings before the Ljubljana District Court (after the case had been allocated to judge P) violate the first applicant’s right to be heard by a tribunal established by law as guaranteed by Article 6 § 1 of the Convention (see Guðmundur Andri Ástráðsson v. Iceland [GC], no. 26374/18, § 213, 1 December 2020, and Miracle Europe Kft v. Hungary, no. 57774/13, § 58, 12 January 2016)? Was that court an independent and impartial tribunal as required by Article 6 § 1 of the Convention?
3. Has the interference with the applicants’ right to respect for their family life been justified under Article 8 of the Convention (see Petrov and X v. Russia, no. 23608/16, §§ 98- 102, 23 October 2018)? In answering this question, the parties are invited to comment on the following:
(a) Was the forcible removal of the applicant children the only available measure to implement the interim care order issued in favour of the father?
(b) Did the decision to forcibly remove the applicant children from the first applicant, having regard to all its terms, and the decision to restrict contact between the first applicant and the applicant children strike a fair balance between the interests of the children and those of the parents and did it comply with the requirement that in deciding such matters a particular importance should be attached to the best interests of the children (see, Ignaccolo-Zenide v. Romania, no. 31679/96, § 94, ECHR 2000‑I; Elsholz v. Germany [GC], no. 25735/94, § 50, ECHR 2000‑VIII; and N.Ts. and Others v. Georgia, no. 71776/12, §§ 81- 83, 2 February 2016)?
(c) What measures have been taken with a view of assessing the applicant children wishes and their best interests as regards the custody and contact arrangements (see M. and M. v. Croatia, no. 10161/13, § 181, ECHR 2015 (extracts), Neves Caratão Pinto v. Portugal, no. 28443/19, § 138, 13 July 202; and Petrov and X v. Russia, no. 23608/16, § 108, 23 October 2018? Were such measures taken in a timely manner?
(d) Keeping in mind the best interests of the children as a primary consideration, what measures have so far been taken by the domestic authorities with a view to preserving family life between the applicants and reconciling the conflicting interests of the first applicant and the applicant children’s father regarding the care of the applicant children (see, A.V. v. Slovenia, no. 878/13, §§ 73-74, 9 April 2019)?
4. Has the domestic law provided for a possibility that the domestic court could appoint a special guardian in respect of the applicant children?
5. Has the domestic court been required (under the applicable domestic law) to (re)assess the situation and, if appropriate, modify of their own motion contact between the applicants or would such a decision be conditioned on a request being made by the first applicant? As regards the latter option, under what conditions could have the first applicant requested that the contact with the applicant children be extended?
APPENDIX
No.
Application no.
Case name
Introduction date
Applicant’s name
Year of birth
Nationality
Representative’s name
Location
1.
27746/22
X and Others
v. Slovenia
01/06/2022
X
1976
Slovenian
W
2014
Australian, Slovenian
Y
2014
Australian, Slovenian
Z
2011
Australian, Slovenian
Blaž ŽIBRET
Ljubljana
2.
28291/22
X and Others
v. Slovenia
08/06/2022
X
1976
Slovenian
W
2014
Australian, Slovenian
Y
2014
Australian, Slovenian
Z
2011
Australian, Slovenian
Blaž ŽIBRET
Ljubljana