Varuh ДЌlovekovih pravic

Human Rights Ombudsman to present at the ECHR his legal opinion about a case of child removal

Simbolna slika: pleteni medvedki ponazarjajo otroke

The Human Rights Ombudsman (Ombudsman) has been monitoring the events revolving around the removal of three children since the very beginning and has in this respect been constantly active. He has initiated several procedures and been frequently called upon to act in accordance with the Ombudsman’s powers.

When the children were removed, the Ombudsman publicly reminded the competent authorities that the removal of children is an extreme measure and that it must be done in a humane manner. All sensitive procedures must be implemented with the utmost measure of sensitivity towards the children involved, who must not be additionally traumatised by acts of those competent. In connection to that, the Human Rights Ombudsman formulated recommendations published in the Ombudsman’s Annual Report for 2021. The Ombudsman recommended to the courts that they strictly observe that all procedures involving children are conducted humanely and that the benefit of the child must be the guiding principle. He also recommended to the courts that in accordance with Article 3 of the UN Convention on the Rights of the Child in all procedures in which legal remedies have been filed and involve children, matters must be quickly and without delay submitted to a higher court for urgent decision.

Based on the Ombudsman’s findings and interventions, for example, a halt in the procedure was remedied and the matter became more transparent. The Ombudsman finds that in such procedures violations of the right to trial within a reasonable time can occur, and possibly also non-transparency of procedure and non-clarification of the child’s benefit. He also warned about the systemic problem when, due to urgent activities of the court of first instance, clients’ complaints are not immediately passed to the second instance court, due to which procedures can be delayed for several months, which is explicitly contrary to the benefit of the child.

On the Ombudsman’s incentive, the Ministry of Justice took a position regarding procedures in which decisions are made about children and must be treated as urgent during the summer holidays, epidemics, or similar emergency situations, which to a greater extent limit the regular execution of judicial power. The Ombudsman familiarised the courts with the opinion of the Ministry of Justice.

The Ombudsman has several times brought attention to the fact that every state body, including a court, must, in accordance with the Convention on the Rights of the Child, always consider the greatest benefit of the child when making decisions. This holds true in all cases and in all situations. The Ombudsman also constantly warns about the need for speedy procedures in which decisions are made about the position of children. In connection with this case, in December 2022, the Human Rights Ombudsman also turned to the European Court of Human Rights and on 14/3/2023 we received consent from the ECHR to intervene in the matter as a third party. Namely, in the Annual Report for 2021 (p. 696–700) the Ombudsman recommended to the courts, based on the discussed case “Violation of the right to a natural judge”, that when (re)assigning judicial cases pre-defined measures in accordance with the provisions of the Courts Act and Court Rules should strictly be complied with, since the Constitution of the Republic of Slovenia protects the right to judicial protection, a part of which is also the right to a natural or lawful judge.

In relation to this concrete case the Ombudsman cannot and must not disclose other details in accordance with the Human Rights Ombudsman Act, nor can they be commented on, since procedures before the Ombudsman are confidential, and must above all be led with careful awareness of the meaning of the child’s greatest benefit. The same law also limits the Ombudsman’s possibility to discuss the content of matters which are still going through the courts. However, the Ombudsman emphasises that in judicial procedures children must have all rights ensured, while the courts must decide for their benefit. The Ombudsman also estimates that public discourse in this particular case is not to the children’s best benefit, since disclosing details of an individual case can only add to the children’s distress.