CEDH · CASELAW;CLIN;ENG — 1 décembre 2009

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 125 December 2009 Eberhard and M. v. Slovenia - 8673/05 and 9733/05 Judgment 1.12.2009 [Section III] Article 8 Positive obligations Article 8-1 Respect for family life Failure adequately to enforce a father’s right of access to his minor child: violation   Facts – In April 2001 the first applicant’s wife left the matrimonial home with the couple’s four-year-old daughter, the second applicant. The wife petitioned for divorce and was granted provisional, and subsequently full, custody of the child. Following administrative proceedings the first applicant obtained an order for access, which became final and enforceable in October 2002. His wife, however, repeatedly refused to comply with the order and despite numerous attempts at enforcement, which resulted in various fines being imposed on his wife, the first applicant had almost no contact with his daughter until he succeeded in obtaining an interim court order in May 2006. Law – Article   8: The State’s obligation to implement positive measures included a right for parents to have steps taken to reunite them with their children and an obligation on the national authorities to facilitate such reunion. The national authorities were required to take all necessary steps that could reasonably be demanded in the special circumstances of the case to facilitate the execution of decisions in this sphere and a measure’s adequacy was to be judged by the swiftness of its implementation, as the passage of time could have irremediable consequences on the parent-child relationship. As regards, firstly, the order for access issued in the administrative proceedings, the Court noted that the authorities had established that it had been in the child’s interest to maintain contact with her father. Notwithstanding this, however, the access arrangements had not been enforced between their becoming final in October 2002 and the court order making new arrangements in May 2006. It was noteworthy here that the fines, even assuming them to have been capable of compelling the wife to comply with the access arrangements, were never actually enforced. Likewise, there was no indication that any measures had been taken in response to the wife’s refusal to cooperate with attempts to organise supervised meetings and nothing had been done to create the necessary conditions for enforcing access, either through coercive measures or steps preparatory to contact. Having regard to the facts of the case, including the passage of time and the child’s best interests, the Court concluded that, notwithstanding their margin of appreciation, the domestic authorities had failed to make adequate and effective efforts to execute the access order issued in the administrative proceedings. As regards the judicial proceedings concerning custody and access, they had lasted more than four and a half years but only five hearings had been held during that time. Despite powers to take measures to protect the child’s interests of their own motion, the domestic courts had failed to treat the question of access with the utmost urgency it had required in view of the ongoing lack of contact and the wife’s failure to comply. Accordingly, both as regards the enforcement of the access order issued in the administrative proceedings and the conduct of the court proceedings concerning access and custody rights, the domestic authorities had failed to meet their positive obligations arising from Article   8, with the result that the applicant had had almost no contact with his daughter for more than four years. Conclusion : violation (unanimously). Article 41: EUR   7,500 in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes