CASE OF V.A.M. v. SERBIA
Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Violation of Art. 8;Violation of Art. 13;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
5. In 1994 the applicant married D.M. and in 1995 their daughter S.M. was born. 6. In 1998 the applicant started having marital problems, apparently as a result of her contracting HIV. 7. On 3 July 1998 S.M. left Zemun, a part of Belgrade where she lived with her parents, to stay with her grandparents for a while. 8. In early August of 1998, D.M. brought S.M. back to Zemun. 9. Shortly afterwards, however, the applicant's marriage broke down and D.M. ceased living with the applicant. He also took S.M. to his parents' flat, denying the applicant any contact with her. 10. On 11 February 1999 the applicant filed a claim with the Fourth Municipal Court in Belgrade (“Četvrti opštinski sud u Beogradu”), seeking dissolution of the marriage, sole custody of S.M. and child maintenance. In addition, she requested interim relief, granting her temporary custody or, in the alternative, regular weekly contacts with S.M. until the conclusion of the civil proceedings. 11. On 23 July 1999 the Fourth Municipal Court in Belgrade (hereinafter “the Municipal Court”) ordered the Social Care Centre (“Centar za socijalni rad opštine Stari Grad”) to produce an expert opinion as to which party should be granted custody. 12. D.M. (hereinafter “the respondent”) appears to have been informed about the applicant's lawsuit during one of the meetings held at the Social Care Centre in 1999. 13. Following the institution of proceedings, the Municipal Court adjourned 15 separate hearings, including the hearings scheduled for 29 October 2003, 7 October 2004 and 19 October 2005, respectively. 14. Throughout this time, though mostly in response to the applicant's numerous proposals, the Municipal Court attempted to obtain information as regards the respondent's correct address from various State bodies, including the tax authorities, municipalities, the Ministry of Education and even the Commercial Court. 15. Summonses were sent to a number of addresses but each time the respondent could not be served, which led the Municipal Court to conclude, on 17 April 2003, that he was “clearly avoiding receipt” of all court documents. 16. On 3 November 2005 the respondent was duly served for the first time, the summons having been sent to Kotor, Montenegro, on which occasion he was both provided with the applicant's claim against him and informed about the next hearing scheduled for 23 December 2005. 17. On 21 December 2005 the applicant's lawyer informed the Municipal Court that she could not attend that hearing. 18. The applicant maintained that during the proceedings in question the presiding judge had stated publicly that she would either rule in favour of the respondent or dismiss the applicant's claim on procedural grounds. The Government contested this submission. 19. In early 2006, the presiding judge was replaced by another and the case itself taken under review by the Municipal Court's Special Committee for Family Relations. 20. On 31 March 2003, inter alia, the applicant complained to the President of the Municipal Court, requesting that the presiding judge in her case be removed. 21. She claimed that the judge in question had tried to serve the respondent via regular mail only but had failed to attempt to do so through the bailiffs, as envisaged by the Civil Procedure Act (see paragraph 60 below). 22. Further, despite the fact that it was up to the courts to establish the respondent's correct address, she pointed out that on 31 March 2003 the judge had ordered her specifically to provide the court with the address in question, in default of which her claim would be dismissed. 23. Finally, the applicant alleged that the judge herself had indicated that she did not know what to do with the case and that the best solution would have been for the applicant to withdraw her claim. The Government contested this submission. 24. On 11 April 2003 the applicant's motion was rejected by the President of the Municipal Court. 25. On 23 July 1999 the Municipal Court ordered the respondent to facilitate the applicant's access to S.M., twice a month, until the adoption of a final decision on the merits of the case. 26. On 19 October 1999 the applicant filed a submission with the Municipal Court, stating that the respondent had refused receipt of the said decision and requesting that he be served formally in accordance with the relevant provisions of the Civil Procedure Act (see paragraph 60 below). 27. On 8 November 1999 and 19 February 2001, respectively, the applicant sent two separate requests to the Municipal Court, seeking effective enforcement of the interim access order. 28. On 23 October 2001 the applicant's lawyer withdrew her request of 8 November 1999. 29. On 4 June 2002 the bailiffs attempted to enforce the said interim access order but, apparently, there was no one to be found at the respondent's address. This enforcement would appear to have been envisaged by means of a seizure of the respondent's movable assets and their subsequent sale, the proceeds of which would then have been used to cover the fine apparently imposed on the respondent for his failure to comply with the order in question (see paragraph 65 below). 30. On 5 September 2002 the applicant filed another complaint with the Municipal Court, seeking effective enforcement. 31. From 25 October 2002 until August 2005 the bailiffs tried again, on a number of occasions and at several different addresses, but to no avail. 32. On 26 August 2005 the applicant was ordered by the Municipal Court to provide the respondent's correct address. 33. On 10 February 1999 a medical clinic (“Klinički centar Srbije”) attested that the applicant was HIV positive but that she was being treated and was feeling well. The clinic added that there was no reason why she should not be allowed to see S.M. 34. On 16 March 1999, 18 March 1999 and 21 May 2001, respectively, medical opinions to the same effect were again issued by the said clinic, as well as two other medical institutions (“Specijalistička poliklinika za građanska lica” and “Institut za infektivne i tropske bolesti”). 35. The opinion of 21 May 2001 was addressed expressly to “the competent Social Care Centre”. 36. The applicant stated that she had frequently seen the respondent in the streets of Belgrade throughout the period in question and pointed out that he had also appeared in a television programme on several separate occasions. 37. The applicant further noted that she was informed by the Social Care Centre that the respondent had publicly stated that he did not want to be bothered by any legal proceedings and, in addition, that he had told S.M. that her mother, the applicant, had died. 38. It would appear that the Municipal Court held a hearing on 30 March 2006 and that it did so in the respondent's absence given that he had been duly served at one of his addresses in Belgrade. 39. On 8 May 2006 the Kotor Police Department informed the Municipal Court that the respondent could not be found at his address in Kotor but that his neighbours had said that he had moved back to Belgrade. 40. At the hearing held on 22 May 2006, the applicant informed the Municipal Court that the respondent had re-registered his former company and that its seat was now in Belgrade. She then went on to provide the court with this address, as well as the current address of the respondent's parents, and stated that S.M. was in fourth grade in one of the primary schools in Belgrade. 41. On 23 May 2006 the Municipal Court sent a letter to the Commercial Entities Registration Agency (“Agenciji za privredne registre”) and the tax authorities, seeking information about the respondent's income and his tax situation, as well as whether the respondent was the owner, founder, manager or deputy manager of the said company. 42. On 12 June 2006 the Municipal Court was informed that the respondent was indeed the manager of the company in question. 43. The next hearing was scheduled for 28 June 2006 and the court summonses in this respect were sent both to the respondent's address in Kotor and to his address in Belgrade, via the Kotor and Belgrade police departments, respectively. 44. On 30 March 2006, 23 May 2006 and 7 June 2006, the Municipal Court urged the competent Social Care Centre to “finalise” its report and submit a proposal as to who should get custody of S.M. 45. The Municipal Court thereafter obtained the medical reports concerning the applicant's health of 16 March 1999 and 21 May 2001, respectively (see paragraph 34 above), as well as a new report produced by the Infectious and Tropical Diseases Institute (“Institut za infektivne i tropske bolesti”) - Centre for HIV/AIDS of 12 April 2006, stating that there was no medical reason why the applicant should not be granted custody of S.M. 46. On 28 June 2006 the Municipal Court heard the applicant and ordered the Social Care Centre to produce its report as to who should be given custody of S.M. 47. On 22 September 2006 the Municipal Court heard both the applicant and the respondent, on which occasion the latter, inter alia, stated that the former had not been honest about her medical situation, or conscientious in terms of taking medication, which seriously endangered his own life as well as that of S.M. The respondent thus proposed that the applicant's health be reassessed and the Municipal Court, having so ordered, scheduled the next hearing for 22 December 2006. 48. On 22 December 2006 the Municipal Court adjourned the hearing, stating that the case file was still with the District Court which was about to rule in respect of the respondent's appeal filed against the interim custody order issued on 15 June 2006 (see paragraphs 50 and 52 below). 49. The Municipal Court scheduled the next hearing for 12 March 2007. 50. On 15 June 2006 the Municipal Court granted provisional custody of S.M. to the applicant and ordered the respondent to surrender the child, pending a final decision in the ongoing civil suit. In its reasoning, inter alia, it found that: i) the respondent had made it clear, from the outset, that he would “not allow” the applicant to have contact with S.M. because of his fear that she might also be “infected” with HIV; ii) the applicant was, despite the respondent's claims to the contrary, a responsible and motivated parent whose medical condition was stable, constantly under review, and who presented no danger to S.M.; and iii) the respondent had not only failed to comply with his obligation to inform the court of his correct address but had in addition, for many years, deliberately avoided receipt of court summonses which, in turn, had resulted in the applicant being denied all contact with S.M. and indicated a gross disregard for the interests of S.M. on his part. Finally, the execution of this order was not to be deferred pending any appeal filed against it. 51. On 20 July 2006 the applicant requested enforcement of the above order and again provided the Municipal Court with the respondent's various addresses. 52. On 5 October 2006 the respondent filed an appeal. 53. On 22 November 2006 the applicant complained to the President of the Municipal Court, seeking speedy enforcement. 54. On 13 November 2006 the District Court accepted the respondent's appeal, quashed the impugned order and instructed the Municipal Court to re-examine the issue of the applicant's interim custody. 55. In July 2006 the applicant filed a separate civil claim against the respondent, seeking the removal of his parental rights. These proceeding were also brought before the Municipal Court and were at the time of adoption of this judgment apparently still ongoing. 56. Articles 310b, 390 and 391 provided that all maintenance-related suits and child custody enforcement proceedings were to be dealt with by the courts urgently. 57. Under Article 204 all family-related disputes involving children must be resolved urgently. The first hearing must be scheduled within 15 days of the date when the claim is filed. First instance courts should conclude the proceedings following no more than two hearings, and second instance courts must decide on appeal within a period of 30 days. 58. Similarly, Article 280 defines all maintenance suits as “particularly urgent”. The first hearing must be scheduled within 8 days of the date when the claim is filed and second instance courts must decide on appeal within 15 days. 59. This Act entered into force on 1 July 2005 and thereby repealed the Marriage and Family Relations Act referred to above. 60. The relevant provisions of this Act provided as follows: “The court shall appoint a temporary representative to [act on behalf of] the respondent if it finds, in the course of the proceedings before the court of first instance, that the regular procedure for appointment of ... [such a representative] ... could last too long, resulting in harmful consequences for one or both parties. Under the conditions set forth in Paragraph 1 of this Article, the court shall appoint a temporary representative ... 4) when the place of residence of the respondent is unknown and the respondent has no counsel ...” “Written pleadings ... [including initial claims aimed at the institution of court proceedings] ... must state ... the name, occupation and the permanent or current address of the parties ...” “ ... [C]ourt documents shall primarily be delivered through regular post but may also be delivered by a designated court employee [“the bailiff”] ... or directly in court.” “If the person to whom a court document is to be delivered does not happen to be [at home], the delivery shall be accomplished by serving the court documents on an adult member of his [or her] household who must receive them. If such persons also happen not to be [at home], the ... [court documents shall be served on] ... the building manager or neighbour, if they agree. If the delivery is to be performed at the office of a person who does not happen to be there, it may be accomplished by serving the court documents on a person working in the same office, if that person so agrees.” “A complaint ... [as well as] ... a court decision against which a separate appeal may be filed shall be delivered to ... [the respondent] ... in person ... If a person who is to be served ... does not happen to be at the place where the delivery is to be performed, the bailiff shall find out when and where that person can be found and shall leave a written notice with one of the persons mentioned in Article 141, paragraphs 1 and 2 of this Act, requesting that he [or she] be present on a certain day and hour in his [or her] flat or office. If the bailiff does not find the person to be served even after this, he [or she] shall proceed in accordance with the provisions of Article 141 of this Act and the delivery shall thus be considered as having been carried out.” “If the person to be served, an adult member of the household, ... or an employee of a State body or a legal entity refuses to receive the court documents without legal reason, the bailiff shall leave the said documents in the flat or at the office of that person or post it on the door of the flat or the office in question. The bailiff shall make a note on the delivery slip concerning the day, hour and reason for refusal of reception, as well as the place where he or she left the court documents, and thus the service shall be considered accomplished.” “When a party ... changes its place of residence or moves to another flat ... [prior to the adoption of the final decision in the proceedings] ... [it] ... shall immediately inform the court thereof. If ... [it] ... fails to do so and the bailiff is unable to establish ... [its] ... new flat or place of residence, the court shall order that all further deliveries in respect of this party be posted on the court's own notice board. Eight days ... [thereafter] ... the delivery at issue shall be deemed duly accomplished.” “The court shall invite a party ... who ... [is] ... abroad and does not have a representative in ... [Serbia] ... to ... authorise ... [another person] ... to receive all ... [Serbian court-related correspondence] ... If the party ... fails to do so, the court shall appoint ... [such a person] ... on a temporary basis ... and at the party's own expense ...” “If a party is unable to establish the address of a person to whom the delivery is to be made, the court shall attempt to obtain relevant information from ... [other State bodies] ... or in some other way.” 61. The substance of Articles 79 § 2 (4), 100 § 2, 127, 135, 136, 138, 139 and 141 of this Act corresponds, in the relevant part, to that of the provisions of the Civil Procedure Act quoted above. 62. In addition, Article 140 provides that, should “normal” delivery during the course of the proceedings prove to be unsuccessful, all court documents shall be posted on the court's own notice board and that eight days thereafter the delivery at issue shall be deemed duly accomplished. 63. Finally, under Article 394 and 396, parties may file an appeal on points of law (“revizija”) with the Supreme Court. They may do so under certain very specific conditions only and against a final judgment rendered at second instance. 64. This Act entered into force on 23 February 2005, thereby repealing the Civil Procedure Act referred to above. 65. Article 209 of the Enforcement Procedure Act of 2000 (Zakon o izvršnom postupku; published in OG FRY nos. 28/00, 73/00 and 71/01), while placing special emphasis on the best interests of the child, states that there shall be an initial period of three days for voluntary compliance with a child custody order. Beyond that, however, fines shall be imposed and, ultimately, if necessary, the child taken forcibly, in co-operation with the Social Care Centre. Finally, under Article 7 of the same Act, only the enforcement order and the court's decision in respect of any complaints filed against this order shall be served in accordance with the relevant civil procedure rules. In all other instances the court's own notice board shall be made use of for this purpose. 66. The Enforcement Procedure Act of 2004 (Zakon o izvršnom postupku; published OG RS no. 125/04) entered into force on 23 February 2005, thereby repealing the Enforcement Procedure Act of 2000. In accordance with Article 304 of this Act, however, all enforcement proceedings instituted prior to 23 February 2005 are to be concluded pursuant to the Enforcement Procedure Act of 2000. 67. The relevant provisions of this Act read as follows: “A party or another participant in the court proceedings shall have the right to complain about the work of a court when they consider the proceedings delayed, improper, or that there has been an [untoward] influence on their course and outcome.” “The President of a higher instance court shall have the right to monitor the court administration of a lower instance court, and the President of a directly higher court shall have the authority to adopt an act from within the competence of the President of a lower instance court, if the latter omits to perform his duty. The President of a higher instance court may request from the lower instance court information regarding the implementation of existing legislation, information concerning any problems about trials and all information regarding the work of the court. The President of a higher instance court may order a direct inspection of the work of a lower instance court.” “When a party to a case or another person taking part in the proceedings files a complaint, the President of the court must, having considered it, inform the complainant about his views concerning its merits as well as any measures taken in this respect, within 15 days of receipt of the complaint. If a complaint was filed through the Ministry of Justice or through a higher instance court, the Minister and the President of a higher court shall be informed of the merits of the complaint and of any measures taken in this respect.” 68. Under Article 8, inter alia, the President of a court must ensure that the court's work is carried out in a timely manner. He or she shall also look into every complaint filed by a party to the proceedings in respect of delay and respond within 15 days, giving his or her decision and, if necessary, ordering that steps be taken to remedy the situation. 69. Article 4, inter alia, provides that the Ministry of Justice shall supervise the work of the courts in terms of their timeliness. Should certain problems be identified, the Ministry shall “propose” specific measures to be undertaken within a period of 15 days. 70. The relevant provisions of this Act read as follows: “The Supreme Court of Serbia shall set up a Supervisory Board [“Nadzorni odbor”] (“the Board”). This Board shall be composed of five Supreme Court judges elected for a period of four years by the plenary session of the Supreme Court of Serbia.” “In response to a complaint or ex officio, the Board is authorised to oversee judicial proceedings and look into the conduct of individual cases. Following the conclusion of this process, the Board may initiate, before the High Personnel Council, proceedings for the removal of a judge based on his unconscientious or unprofessional conduct, or propose the imposition of other disciplinary measures.” 71. Article 172 § 1 provides that a legal entity (“pravno lice”), which includes the State, is liable for any damage caused by one of “its bodies” (“njegov organ”) to a “third person”. 72. Under Articles 199 and 200 of the Obligations Act, inter alia, anyone who has suffered fear, physical pain or mental anguish as a consequence of a breach of “personal rights” (“prava ličnosti”) may, depending on their duration and intensity, sue for financial compensation before the civil courts and, in addition, request other forms of redress “which may be capable” of affording adequate non-pecuniary satisfaction. 73. Article 134 § 1 provides, inter alia, that “whoever” by means of “deceit” removes or holds another with the intent to ... coerce” him or her, or another person, to “endure something” shall be sentenced to a prison term of one to ten years. 74. Under Article 191 anyone who, inter alia, obstructs the enforcement of a child custody decision shall be fined or sentenced to a prison term not exceeding two years. 75. Article 340 states that “an official or another 'person in charge' who refuses to enforce a final court decision, or does not enforce it within the period prescribed by law or a period set forth in the decision itself, shall be fined or sentenced to a prison term not exceeding two years”. 76. The relevant provisions concerning the Court of Serbia and Montenegro and the succession of the State Union of Serbia and Montenegro are set out in the Matijašević v. Serbia judgment (no. 23037/04, §§ 12, 13 and 16-25, 19 September 2006).