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Family Law

The leading authority on all aspects of family law

06 DEC 2012

RIGHT TO A FAIR TRIAL:VK v Croatia (Application No 38380/08)

(European Court of Human Rights, 27 November 2012)

The husband and wife were married for 11 years and had one child together. When the relationship came to an end proceedings about contact and maintenance were initiated but they both agreed the marriage should be dissolved. In addition the husband sought a DNA test to confirm his paternity of the child. In total the proceedings took over 5 years to conclude. The husband claimed this had violated his right under Art 6 due to the uncertainty during that period over paternity and his ability to remarry. In the national court a time limit was imposed on the municipal court by the county court for the conclusion of proceedings but that limit was not met.

The reasonableness of the length of proceedings had to be assessed in light of the circumstances of the case. Particular diligence was required in cases concerning civil status and capacity due to the possible consequences upon the enjoyment of the right to respect for family life any excessive length of proceedings may have.

The overall length of proceedings in this case could only be justified in exceptional circumstances which were not present here. The husband's Art 6 rights had been violated. Although no right to divorce could be derived from Art 12 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, if national legislation allowed divorce then a failure of the domestic authorities to conduct divorce proceedings within a reasonable time could in certain circumstances raise an issue. In these circumstances the husband was left in a state of prolonged uncertainty which amounted to an unreasonable restriction of his right to marry. In this case the municipal court had also failed to conclude proceedings within the time limit imposed by the county court. Therefore, the remedies provided by the national law were ineffective and constituted an interference with the husband's Art 13 rights.

The court found the husband's rights under Arts 6, 12 and 13 had been violated and awarded him €4000.

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