RUKAVINA v. CROATIA
Inadmissible
Dmitry Dedov;Elisabeth Steiner;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković
1. The applicant, Mr Slaven Rukavina, is a Croatian national who was born in 1964 and lives in Zagreb. 2. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 7 July 2007 the applicant married a certain Ms S.L. 5. On 22 August 2007 S.L. gave birth to their daughter L.R. 6. On 4 May 2009 S.L., accusing the applicant of domestic violence, left the matrimonial home and moved to a safe house. In so doing she took their daughter with her. 7. On 10 June 2009 S.L. brought a civil action against the applicant in the Sesvete Municipal Court (Općinski sud u Sesvetama) seeking a divorce and custody of their daughter. 8. After a hearing held in the presence of the parties and the representative of the Sesvete Social Welfare Centre (Centar za socijalnu skrb Sesvete), on 18 June 2009 the Municipal Court issued a decision whereby it regulated interim custody and access rights until the adoption of the final judgment on S.L.’s action. In particular, the court temporarily awarded custody to S.L. and granted the applicant access rights, allowing him to have contact with his daughter twice a month for three hours on the premises of the association Children First. The applicant appealed. 9. On 5 October 2009 the Municipal Court held a hearing at which the applicant did not oppose the divorce but asked the court to award him custody of his daughter. At the same hearing the court decided to refer the parties to mandatory mediation procedure, in accordance with the law. Specifically, the parties were referred to the Sesvete Social Welfare Centre. for the institution of this procedure. 10. After completing the mediation procedure, on 14 December 2009 the Centre submitted its report to the court suggesting that reconciliation of the parties was not possible and stating that they could not agree over custody of and contact with their daughter. 11. At the hearing held on 27 January 2010 the court heard the parties and invited the Sesvete Social Welfare Centre to submit its recommendation as regards custody of the applicant’s daughter and the (extent of) access rights of the non-custodial parent. 12. On 2 March 2010 the Zagreb County Court (Županijski sud u Zagrebu) quashed the first-instance decision of 18 June 2009 (see paragraph 8 above) and remitted the case to the first-instance court, holding that the latter had not provided sufficient reasons for its decision. In particular, the County Court found that no reasons had been given for the interim award of custody to S.L. and saw no reason why the applicant’s contact with his daughter had to be supervised. 13. In the resumed proceedings, on 19 April 2010 the Sesvete Social Welfare Centre informed the court that it could not make the requested recommendation (see paragraph 11 above) and that, in any event, because S.L. had changed the address, the matter was no longer in their competence but fell within the competence of the Trešnjevka Social Welfare Centre. It nevertheless recommended that both parties undergo psychiatric assessment. 14. On 28 April 2010 the Municipal Court invited the Trešnjevka Social Welfare Centre (hereinafter: “the local social welfare centre” or “the Centre”) to submit its recommendation as regards (the extent of) the applicant’s access rights and the manner in which they should be exercised. 15. On 6 May 2010 the Centre recommended that the applicant exercise his access rights under supervision every Wednesday from 5 to 7 p.m. on the premises of another association. The Centre explained that supervision was necessary because criminal proceedings for domestic violence were pending against the applicant (see paragraphs 43-46 below) and because psychiatric assessment of both parents was necessary. 16. At the hearing held on 11 May 2010 the applicant proposed that he be awarded custody or, in the alternative, that he be granted access rights to be exercised without supervision in his home for three hours twice per week, every other weekend, and half of all holidays. 17. At the hearing held on 11 June 2010 the parties agreed that the applicant would have contact with his daughter twice a week for two hours under supervision. 18. On 14 June 2010 the court decided to obtain a joint expert opinion from experts in psychology and psychiatry. 19. At the hearing held on 8 September 2010 the applicant proposed that his access rights be extended from two to four hours per week and also that he should have contact with his daughter every other weekend. 20. On 18 November 2010 the experts in psychology and psychiatry submitted their joint opinion. They recommended that custody be awarded to S.L. and that the applicant have contact with his daughter four times a week for two and a half hours and for two and a half hours on official holidays and other important days (birthdays, etc.), all under supervision. 21. On 9 December 2010 the local social welfare centre submitted its observations on the expert opinion, criticising the contact schedule proposed by the experts as unworkable. It also added that the experts had failed to explain why the applicant should exercise his access rights under supervision. 22. At the hearing held on 14 December 2010 the applicant objected to the expert opinion in so far as it recommended awarding custody to S.L. and supervised contact with his daughter. He also submitted an opinion obtained from another expert in psychology. 23. On the same day the Municipal Court issued a fresh decision regulating interim custody and access rights. In particular, the court again temporarily awarded custody to S.L. and granted the applicant access rights entitling him to have contact with his daughter twice a week (on Tuesdays and Thursdays from 4 to 6.30 p.m.) under supervision. The applicant appealed. 24. At the hearing held on 14 January 2011 the court heard the expert in psychiatry who had prepared the aforementioned joint expert opinion of 18 November 2010 (see paragraph 20 above). 25. On 1 February 2011 the Zagreb County Court quashed the first-instance decision of 14 December 2010 (see paragraph 23 above) and remitted the case. 26. In the resumed proceedings, on 9 March 2011 the Sesvete Municipal Court issued another decision regulating interim custody and access rights, the content of which was identical to its decision of 14 December 2010 (see paragraph 23 above). The applicant appealed. 27. On 14 March 2011 the applicant requested the withdrawal of the first-instance single judge sitting in the case. The hearing scheduled for 22 March 2011 was therefore adjourned until the Zagreb County Court decided on the applicant’s withdrawal request. On 13 May 2011 that court dismissed the applicant’s request. 28. On 7 July 2011 a multidisciplinary team of experts composed of a psychologist, a psychiatrist, a paediatrician and a social worker submitted their report on the physical and mental health of the applicant’s daughter, finding that she was healthy but that her mother’s insistence on a vegan diet posed a risk as regards her normal psychophysical development. The report was obtained at the request of the local social welfare centre in response to the applicant’s allegations that S.L. had been emotionally abusing their daughter and endangering her health by subjecting her to a vegan diet. 29. On 13 September 2011 the Zagreb County Court quashed the first-instance decision of 9 March 2011 (see paragraph 26 above) and remitted the case. It again held that the first-instance decision had not been sufficiently reasoned. 30. In the resumed proceedings, the hearing scheduled for 14 November 2011 was adjourned owing to the absence of the judge sitting in the case. 31. On 25 November 2011 the Sesvete Municipal Court issued a new decision regulating interim custody and access rights in a manner identical to its two previous decisions (see paragraphs 23 and 26 above). 32. At the hearing held on 19 December 2011 the court, in accordance with the applicant’s proposal ‒ with which the representative of the local social welfare centre agreed ‒ decided to obtain an expert opinion from another expert on the issue of the custody of the applicant’s daughter and her contact with the non-custodial parent. 33. On 31 January 2012 the Zagreb County Court, following an appeal by the applicant, again quashed the first-instance decision of 25 November 2011 (see paragraph 31 above) and remitted the case. 34. On 26 March 2012 the Municipal Court held a hearing at which it heard the parties and a representative of the local social welfare centre. 35. At the same hearing the Municipal Court issued yet another decision regulating interim custody and access rights in respect of the applicant’s daughter but in a manner different from its three previous decisions (see paragraphs 23, 26 and 31 above). The court firstly, as it had done before, temporarily awarded custody of the applicant’s daughter to her mother S.L. Secondly, for the period between 28 March and 31 May 2012, the court granted the applicant access rights allowing him to have contact with his daughter twice a week (on Tuesdays and Thursdays from 4 to 6.30 p.m.) under the supervision of an employee of the social welfare centre, and also without supervision every Friday from 3 to 8.30 p.m. and during the weekends of 20-22 April, 4-6 May and 18-20 May 2012. Both parties appealed against that decision 36. At the next hearing held on 31 May 2012 the Municipal Court issued a new decision regulating the applicant’s access rights on an interim basis. The court granted the applicant access rights twice a week (on Tuesdays and Thursdays from 4 to 6.30 p.m.) under the supervision of an employee of the social welfare centre, as well as without supervision every other weekend from 3 p.m. on Friday until 7 p.m. on Sunday The applicant appealed. 37. On 4 June 2012 the Municipal Court received the combined expert opinion of a psychiatrist, a psychologist and a defectologist. The experts recommended that the applicant be awarded custody of his daughter and that the mother be granted extensive access rights. 38. On 11 September 2012 the Zagreb County Court quashed the first-instance decisions of 26 March and 31 May 2012 (see paragraphs 35-36 above) and remitted the case. 39. In the resumed proceedings, at a hearing held on 12 October 2012 the Sesvete Municipal Court heard the experts in psychiatry and psychology who had prepared the expert opinion of 4 June 2012 (see paragraph 37 above). After hearing the experts, the representative of the local social welfare centre agreed with their recommendation and suggested that the court award custody to the applicant while granting the mother extensive access rights. 40. By a judgment of 25 October 2012 the Sesvete Municipal Court definitively awarded the applicant custody of his daughter and granted S.L. access rights to be exercised every Tuesday and Thursday from 3 to 7 p.m., every other weekend from Friday 3 p.m. to Sunday 6 p.m., every other public holiday from 10 a.m. to 7 p.m. and for half of the winter, summer and spring holidays. At the same time the court issued a decision regulating interim custody and access rights in the same way as stipulated in its judgment until such time as that judgment became final. 41. On 9 November 2012 S.L. appealed against that judgment. 42. By a judgment of 19 February 2013 the Zagreb County Court dismissed the appeal and upheld the first-instance judgment, which thereby became final. 43. In 2009 the Sesvete State Attorney’s Office (Općinsko državno odvjetništvo u Sesvetama) indicted the applicant before the Sesvete Municipal Court for the criminal offence of domestic violence allegedly committed against S.L. in the period between October 2006 and May 2009. 44. By a judgment of 13 May 2011 the Sesvete Municipal Court acquitted the applicant. It found that he had not committed the acts of violence with which he had been charged. In its judgment that court also stated that the criminal proceedings against the applicant had been instrumental in the dispute over custody of his daughter and that S.L. had used those proceedings in order to portray the applicant as a violent person and inadequate father, unworthy of that role, and thus prevent him from maintaining contact with his daughter. 45. Following an appeal by the State Attorney, on 5 July 2012 the Bjelovar County Court (Županijski sud u Bjelovaru), quashed the first-instance judgment and remitted the case. 46. It would appear that the proceedings are currently pending before the Sesvete Municipal Court as the first-instance court. 47. In 2010 S.L. brought a private bill of indictment (privatna tužba) against the applicant in the Sesvete Municipal Court accusing him of defamation. In particular, S.L. alleged that in his numerous statements to the media, the applicant had depicted her as mentally ill, a person with whom “something was wrong”, a fanatic and a proponent of eco-feminism. 48. The Sesvete Municipal Court convicted the applicant, on 22 November 2011, but the judgment was subsequently quashed by the second-instance court following his appeal and the case was remitted. 49. In the resumed proceedings, on 3 September 2013 the Sesvete Municipal Court acquitted the applicant, that judgment being upheld by the Rijeka County Court on 8 January 2014.