| Applicant name | X AND OTHERS |
| Applicant type | natural person |
| Number of applicants | 4 |
| Country | SLOVENIA |
| Application no. | 27746/22 |
| Date | 19/12/2024 |
| Judges | Ivana Jelić, President, Marko Bošnjak, Alena Poláčková, Georgios A. Serghides, Erik Wennerström, Raffaele Sabato, Frédéric Krenc |
| Institution | Court |
| Type | Judgment |
| Outcome Art. 8 | violation |
| Reason | Positive obligation |
| Type of privacy | relational privacy; procedural privacy |
| Keywords | Contact children |
| Facts of the case | The case concerns the removal of the first applicant’s children (“the applicant children”) from the first applicant (their mother) and the discontinuation of contact between them, which were allegedly in breach of Article 8 of the Convention. It also concerns the reassignment of the case to which the first applicant was a party to a particular judge, which was allegedly in breach of the first applicant’s right to be heard by a tribunal established by law (Article 6 § 1 of the Convention). |
| Analysis | The Court observes that when the Ljubljana Higher Court reviewed the removal order, it took the view that the applicable domestic law had not required less severe measures to be exhausted prior to the physical removal of children; thus, in its view, the impugned removal order had been lawful. The Constitutional Court, for its part, did not examine the first applicant’s complaint on the merits, and dismissed her application challenging the constitutionality of the enforcement legislation relating to the removal of children, finding that legislative changes had in the meantime been introduced and that the issue was no longer of constitutional importance. Neither of those courts therefore reviewed the compliance of the impugned measure with the Convention. Seen against the above-noted context and considerations, the Court finds that the removal order of 16 March 2020 could not be considered to have been supported by relevant and sufficient reasons. It therefore amounted to a violation of the applicant children’s rights enshrined in Article 8 of the Convention. Although the Court acknowledges the reasoning of the Ljubljana Higher Court in its judgment of 10 July 2023, it notes that it could have not fully remedied the harm caused to the applicants’ family life as a result of the contested decisions; therefore, the applicants’ victim status under Article 8 of the Convention remains intact. It observes in this connection that as a result of the impugned decision of 5 August 2022 the first applicant was not allowed to have any contact with the applicant children until April 2023, when the parents reached a temporary court settlement. The welfare centre’s repeated requests for changes to the arrangements, emphasising the urgency of the situation, remained unaddressed by the District Court in the meantime. Moreover, because of the District Court’s disregard of the Higher Court’s instructions to assign the case to a different judge, the interim order issued on 28 August 2023, granting provisional custody of the applicant children to the first applicant, was promptly quashed; a new decision granting joint custody and a residence order in favour of the first applicant was issued on 1 December 2023 by a newly assigned judge, meaning that for two months contact between the first applicant and the applicant children was regulated by an outdated decision of 1 October 2021. In view of the above-noted considerations, the Court concludes that the cessation of contact between the first applicant and the applicant children, which arose from the interim orders of 16 March 2020 and 5 August 2022 and the judgment of 7 November 2022, violated the applicants’ right to respect for their family life, as guaranteed by Article 8 of the Convention. he Court has already considered the fact that the applicant children were never heard by the domestic court in its assessment of whether the discontinuation of contact between the first applicant and the applicant children had been justified. It is furthermore important to note that the domestic courts’ decision not to hear the applicant children rendered their involvement in the proceedings through an appropriate impartial representative even more pressing. The Court would refer in this connection to the considerations set out its judgment which concerned relevantly similar situation – in particular as regards the benefit of appointing a guardian ad litem to the child of parents involved in a custody battle. It is further emphasised that the contested measures in the present case had a particularly serious impact on the applicant children (who displayed significant resistance to them) – of which the domestic courts were aware. Despite the above-noted considerations, it would appear that the District Court did not attach any significance to the applicant children’s need for representation. In its judgment of 7 November 2022 it seems to have confused different concepts under the domestic law and essentially relied on the fact that the first applicant had initially refused to give consent for the appointment of an “advocate for children” (see paragraphs 10 and 58 above). The District Court overlooked the fact that parental consent was not a necessary condition for appointing such an advocate and that the welfare centre had proposed the appointment of a guardian ad litem, which the District Court could and should have appointed on its own initiative. In the light of this, the Court finds that the domestic courts’ failure to ensure proper representation of the applicant children’s interests during the contact and custody proceedings amounts, in itself, to a breach of their right to respect for their family life under Article 8 of the Convention. |
| Other Article violation? | Yes 6, No 3 |
| Damage awarded | that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final, in accordance with Article 44 § 2 of the Convention, the following amounts: (i) EUR 7,000 (seven thousand euros) to the first applicant and EUR 20,000 (twenty thousand euros) to the applicant children jointly, plus any tax that may be chargeable, in respect of non‑pecuniary damage; (ii) EUR 7,000 (seven thousand euros) to the applicants jointly and EUR 2,500 (two thousand five hundred euros) to the first applicant, plus any tax that may be chargeable to the applicants, in respect of costs and expenses; |
| Documents | Judgment |