A complainant contacted the Human Rights Ombudsman of the Republic of Slovenia (hereinafter: Ombudsman) stating that he and his partner were having problems registering the child and the father in the civil registry of the Republic of Slovenia. The child was born out of wedlock, and the parents arranged for the recognition of paternity at a centre for social work. The complainant is a Slovenian citizen, while the partner is a citizen of a non-EU country. The partner has lived in the Republic of Slovenia (RS) since 2012. She got married in Slovenia and ended her relationship with her then husband in 2022, which ended after a lengthy procedure with a judgment by a Slovenian court in May 2025. The partner has been registered at the complainant's address since 2023. In the procedure for registering the child and father in the civil registry, the administrative unit (UE) requested that the child's mother submit a certificate stating that she was not married to someone from her home country. The representative office of that country in the Republic of Slovenia explained that they do not issue such certificates.

Ombudsman obtained explanations from the UE and the Ministry of the Interior (MNZ). The explanations received show that a mother who is a foreign citizen must, when a Slovenian citizen wishes to acknowledge paternity, provide documentary proof of her personal status. This is necessary to ensure the correctness of the data entered in the civil registry. Only in this way can potential abuses be avoided, where a child has a citizen of the Republic of Slovenia registered as the father in the Republic of Slovenia and consequently also Slovenian citizenship, but another person as the father abroad. The MNZ also explains that if the mother has been residing in another country other than her home country for a long time, according to the MNZ's assessment, proof of the country of residence would also be sufficient to establish the condition that she is not in a marital relationship (this must be assessed on a case-by-case basis), if the mother has changed her personal status in this country (e.g. got married and/or divorced), namely for the period of residence in this country. In this way, we could also cover situations where the mother has not notified the change in her personal status in the country of her citizenship and, as a result, cannot provide a certificate that would demonstrate the true factual situation.

During the Ombudsman's consideration of the complaint, the UE changed its position and informed the parents that a declaration by the mother about her status, made before the representative office of her country, was sufficient to settle the matter. Such a declaration was allegedly necessary because in the event of a false declaration, consequences could arise under the law of the mother's country, which was supposed to ensure that the UE was presented with the true facts. The UE actually entered the child and the father in the civil registry when the declaration made by the mother before the representative office of her country that she was divorced was submitted.

In the opinion of the Ombudsman, the provision of Article 114 of the Family Code gives rise to a legal presumption (praesumptio iuris) according to which, according to the law itself, the child's father is the one who (with the mother's consent) acknowledges paternity, which can be challenged by proving its untruthfulness (the existence of a marriage) and thus nullifying its consequences. In the opinion of the Ombudsman, it is not possible to shift the burden of proving that the mother is not married to the child's parents, since, in the opinion of the Ombudsman, in such a case the legal text should stipulate that the child's father is a man who acknowledges paternity if he proves that the mother is not married. Furthermore, in the opinion of the Ombudsman, it is not even possible to prove negative facts. Furthermore, in the opinion of the Ombudsman, it is not possible to follow the interpretation of the UE and the MNZ that only in this way can cases be avoided where a child has a citizen of the Republic of Slovenia registered as the father in the Republic of Slovenia, and consequently citizenship of the Republic of Slovenia, and another person abroad based on the presumption of paternity. In this specific case, the mother did not register either her marriage in the Republic of Slovenia or her divorce in her home country, which means that the home country does not necessarily have the correct information about the mother's marital status. Even in the case of citizens of the Republic of Slovenia who marry abroad, there is no guarantee that they will report this to the authorities of the Republic of Slovenia. Moreover, the current Civil Registry Act, in Article 33, only provides for a fine for cases where data at the time of the child's birth is not properly reported, but does not provide for a sanction for failure to register a change in marital status. In the Ombudsman's opinion, there is no reason why, in the case where a citizen of the Republic of Slovenia declares paternity of a child born in the Republic of Slovenia, cases where the mother is a citizen of the Republic of Slovenia or a citizen of a foreign country should be treated differently. In both cases, situations may also arise where the child has a citizen of the Republic of Slovenia registered as the father in the Republic of Slovenia, and another person abroad based on the presumption of paternity.

In this specific case, in the Ombudsman's opinion, the late request by the UE to submit a document that was not even relevant to the regulation of the child's status led to an unjustified delay in the procedure and, during the course of the procedure, to interference with the child's rights under Articles 3 and 7 of the Child Protection Act and Articles 34 and 35 of the Constitution of the Republic of Slovenia. The violation ceased when the UE entered the child and the father in the civil registry.

Regardless of the controversy surrounding the shifting of the burden of proof that the mother is not married to the parents, as follows from the explanations of the UE and the MNZ, the Ombudsman believes that the problem with the specific procedure under consideration is that the child and father were entered into the civil registry only after the mother's declaration that she was divorced was submitted at the foreign country's embassy. The Ombudsman welcomes the fact that the UE did not insist on submitting an official certificate from the foreign country about the mother's marital status, as the mother had objective circumstances that would have made obtaining such a certificate very difficult, and above all, such a certificate would clearly not reflect the actual situation at all, as the authorities of the foreign country were not aware of either the conclusion or the divorce of the marital union in the Republic of Slovenia. In the Ombudsman's opinion, it would be unacceptable for a person who has resided in the Republic of Slovenia for more than a decade, and entered into and dissolved a marriage here, as evidenced by relevant documents from Slovenian authorities, to give preference to a false certificate from a foreign country when demonstrating marital status.

The Ombudsman found that the delay in the UE procedure was due to the circumstance that, as it turned out upon completion of the procedure, the solution required obtaining a statement that the mother had to make at the foreign country's embassy. On the one hand, such a request to the UE was made very late in the procedure, and at the same time, due to the lengthy process of obtaining it at the foreign country's embassy, ​​it unnecessarily prevented the appropriate regulation of the child's status and the exercise of related rights. In the Ombudsman's opinion, a substantively identical statement by the mother in the UE procedure should have been sufficient. The UE request was justified by the fact that the mother could be held liable for a false statement made before the foreign country's embassy, ​​which was supposed to ensure a higher degree of probability of the truthfulness of such a statement. In the Ombudsman's opinion, however, the same or higher level of probability would be ensured by a statement before the UE, since in accordance with the provision of Article 284 of the Criminal Code, it is defined as a criminal offence if a party who, when providing evidence by questioning the parties in an administrative procedure, made a false statement and the competent authority based its decision in this procedure on this statement. Given the long-term residence of the lady in the Republic of Slovenia and her accessibility to the authorities of the Republic of Slovenia, the fear of prosecution by the authorities of the Republic of Slovenia is certainly a greater guarantee for the truthfulness of the statement made than of prosecution by the authorities of a foreign country. Thus, in the Ombudsman's opinion, in the specific case, the UE, contrary to the provision of Article 7 of the General Administrative Procedure Act, did not enable the parties to protect and enforce their rights as easily as possible, but rather made it more difficult, and there is no reason for this in ensuring the principle of seeking the material truth or in the provisions of the regulations of the Republic of Slovenia. 21.0-18/2025