CASE OF MIJUSKOVIC v. MONTENEGRO
Remainder inadmissible;Violation of Art. 8;Non-pecuniary damage - award
Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
5. The applicant was born in 1971 and currently lives in Budva. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 26 April 1998 the applicant and V.K. married and on 12 October 1998 their twins, A and B, were born. 8. On 5 June 2003, due to marital problems, the applicant moved back to her parents' house in Nikšić, together with the children. 9. On 22 July 2004 the Social Care Centre in Nikšić (“the NSCC”) issued a decision regulating V.K.'s access to A and B. 10. It would appear that during this period V.K. had been seeing the children in accordance with this decision. 11. On 5 January 2005 V.K. took the children for the winter holiday and subsequently refused to return them to the applicant. 12. On 8 March 2005 the NSCC ordered that the children be returned to the applicant and entrusted the enforcement of that order to the Social Care Centre in Budva (“the BSCC”). 13. On 14 March 2005 the BSCC, with police assistance, attempted to enforce the order in question, but it appears that V.K.'s parents physically prevented that from happening. 14. Between April and June 2005, at the applicant's requests, the NSCC issued three additional decisions, urging V.K. to surrender the children. They provided that should V.K. fail to comply with the applicant's custody rights he would be fined, and that, ultimately, forcible enforcement might be called for. 15. On one occasion thereafter V.K. brought the children to the BSCC but refused to surrender them to the applicant, claiming that the children did not want to live with her. 16. There is no evidence in the case file indicating that V.K. had been fined or, indeed, that a forcible transfer of custody had been attempted again. 17. On 23 June 2003 V.K. lodged a claim with the Court of First Instance in Kotor, seeking the dissolution of his marriage to the applicant as well as custody of the children. 18. On 1 September 2003 the applicant lodged a counter-claim to the same effect. 19. On 9 March 2004 the presiding judge joined the two claims into a single set of proceedings. 20. On 5 January 2006 the Court of First Instance: (i) dissolved the marriage, (ii) granted custody of the children to the applicant, and (iii) ordered V.K. to pay monthly child maintenance. 21. On 5 May 2006 the High Court upheld that judgment and it thereby became final. 22. On 12 September 2006 the Supreme Court dismissed V.K.'s appeal on points of law (revizija). 23. On 12 June 2006 the applicant submitted a request for the enforcement of the final judgment. 24. On 22 June 2006 the Court of First Instance in Kotor issued an enforcement order whereby V.K. was given three days to surrender the children to the applicant. He was also warned that if he failed to comply he could be fined or even subjected to a forcible transfer of custody. 25. On 21 July 2006 the High Court upheld this order. 26. On 26 February 2009 the applicant submitted a request for a review (kontrolni zahtjev; see paragraph 46 below) with the Court of First Instance, seeking execution of the enforcement order. 27. On 5 March 2009 the execution judge (izvršni sudija) informed the President of the court that as it was “impossible to reach an agreement [...] by which the children would be surrendered” to the applicant, the bailiff was ordered to enforce “without delay” the fine of EUR 500 in respect of V.K. He finished his report by stating “that it [was] impossible to say when and how the enforcement proceedings at issue shall be concluded”. 28. On 7 March 2009 the bailiff made an attempt to enforce the fine, but it was to no avail due to the verbal and physical resistance of V.K.'s parents. Subsequently, the bailiff requested the President of the court to release her of the duty to enforce the fine. 29. On 9 March 2009 V.K. was informed that the forcible payment of the fine would be executed on 13 March 2009. On 12 March 2009 V.K.'s father paid the fine imposed. 30. On 17 March 2009 the Court of First Instance issued another enforcement order requesting that the children be surrendered to the applicant within three days, failing which V.K. would be fined EUR 1,000. 31. On 10 September 2009, after the application had already been communicated to the respondent Government, the Court of First Instance issued a decision specifying that the order would be enforced on 8 October 2009, if need be, by means of a forcible transfer of custody. 32. On 8 October 2009 V.K. refused to surrender the children, who, apparently, also resisted the transfer. The BSCC representative proposed that a forcible transfer of custody be postponed and the judge accepted to do so. 33. On 23 October 2009, when the enforcement was to be attempted again, V.K. proposed that it be adjourned until the court had decided on his request for custody (see paragraphs 36-38 below), or that an interim period be allowed, with the participation of a family psychologist, to help the children to adapt to the new situation. The BSCC representative also suggested that a transitional period be allowed before the enforcement. The applicant insisted on the enforcement. The house was searched, but the children were not found. The applicant was invited to submit a proposal as to how the judgment could be further enforced as well as to inform the court on her possibility to provide the necessary labour force for the enforcement (“eventualnog obezbjeđenja potrebne radne snage”). At the same time, the police were invited to establish the whereabouts of the children. 34. On 30 November 2009, during another attempt at enforcement, the children refused to go with the applicant, claiming that she had not treated them properly. After V.K.'s parents, who had resisted the enforcement, were removed, the judgment was enforced and the children were finally surrendered to the applicant. 35. The applicant maintained that as of 5 January 2005 until 30 November 2009 she had only had sporadic and brief contact with her children, mostly in-between school classes and, even then, in the presence of V.K. or his father. 36. On an unspecified date V.K. instituted a new civil complaint, seeking sole custody of the children. 37. On 1 June 2009 the Court of First Instance ruled in his favour and ordered the applicant to pay monthly child maintenance. In so deciding, the court took account of an informal conversation that an expert psychiatrist had had with the children. The psychiatrist's conclusion was that A and B wanted to live with their father, that it would be stressful for them to be taken away from their present home, but that their mother needed to be allowed regular access. When specifically asked whether the children had been negatively directed towards their mother by their father, the expert responded by saying that “it [was] obvious that the children had been negatively directed towards their mother by an adult person”. The court noted that the children had been living with their father, contrary to the final judgment rendered in 2006, but that they had adapted to it and liked it. Finally, the court concluded that “the factual situation [had] lasted for far too long” and that it was in the children's interest to verify the situation. 38. On 15 September 2009 the High Court in Podgorica quashed this judgment and remitted the case to the Court of First Instance. 39. On 16 February 2007 V.K. was found guilty of domestic violence, the victim being the applicant, and was sentenced to three months in prison, suspended for a period of two years. On 28 June 2007 the High Court in Podgorica overturned that judgment and dismissed the charges as the criminal prosecution had become time-barred. 40. On 7 December 2007 the Court of First Instance in Kotor acquitted V.K. of charges of child abduction (oduzimanje maloljetnog lica) concluding that “[...] although the said acts of the accused contained all the elements of the criminal offence he had been charged with, the said offence represented an act of minor significance”. On 28 May 2008 the High Court in Podgorica upheld that judgment and it thereby became final. 41. The relevant provisions of the Constitution read as follows: Article 149 “The Constitutional Court shall ... (3) ... [rule on a] ... constitutional appeal ... [filed in respect of an alleged] ... violation of a human right or freedom guaranteed by the Constitution, after all other effective legal remedies have been exhausted ...” 42. This Constitution entered into force on 22 October 2007. 43. The relevant provision of the Constitutional Court Act read as follows: Article 48 “Constitutional appeal can be filed against an individual decision of a state body [...] for violations of human rights and freedoms guaranteed by the Constitution, after all other effective domestic remedies have been exhausted.” 44. Articles 49-59 provide additional details as regards the processing of constitutional appeals. 45. This Act entered into force on 4 November 2008. 46. Relevant provisions of this Act read as follows: Article 2 § 1 “The party and the intervener in civil matters [...] shall have the right to judicial protection in the event of violation of the right to trial within a reasonable time [...].” Article 3 “Legal remedies for the protection of right to trial within a reasonable time shall be: Request to accelerate the proceedings (hereinafter referred to as the request for review); Action for fair redress.” Article 17 “If the judge notifies the president of the court that certain procedural measures will be undertaken ... no later than four months after the receipt of the request for review, the president of the court shall notify the party thereof and thus finalise the procedure upon the request for review.” Article 23 § 1 “If the president of the court acted pursuant to Article 17 [...], the party cannot file another request for review in the same case before the expiry of the period specified in the notification [...].” Article 24 § 1 “If the president of the court [...] does not deliver [...] notification on the request for review to the party [...] pursuant to Article 17 the party may lodge an appeal [...].” Article 31 “Fair redress for the violation of the right to trial within a reasonable time may be realised by: payment of monetary compensation for the damage caused by the violation of the right to trial within a reasonable time, and/or by publishing the judgment that the right of the party to a trial within a reasonable time has been violated.” Article 33 § 3 “The action [for fair redress] ... shall be filed with the Supreme Court no later than six months after the date of receipt of the final and legally binding decision on the request for review within the procedure of enforcement of the decision.” Article 40 “The Supreme Court shall be obliged to make a decision on the action no later than four months after the date of receipt of the action.” Article 44 “This Act shall apply also to judicial proceedings instituted before the entry into force of this Act but after 3 March 2004. In cases referred to in paragraph 1 above, in the determination of a legal remedy for violations of the right to trial within a reasonable time, the violations of the right which occurred after 3 March 2004 shall be established. When establishing the violation of the right referred to in paragraph 2 above, the Court shall also take into consideration the length of the judicial proceedings prior to 3 March 2004.” 47. This Act entered into force on 21 December 2007, but contained no reference to the applications involving procedural delay already lodged with the Court. 48. Between 1 January 2008 and 30 September 2009 the courts in Montenegro considered one hundred and two requests for review. Two requests were withdrawn and eight were being examined. In the same period, twenty-two actions for fair redress were submitted, out of which sixteen actions were dealt with and six were still being examined. In one case the courts awarded the plaintiff non-pecuniary damages for the length of civil proceedings. 49. Four of the requests for review, among the copies provided by the Government, concerned the length of enforcement proceedings. In two cases the plaintiffs were informed that the proceedings would be terminated within the next four months. There is no information in the provided documents as to whether these time-limits were complied with. In one case it is unclear whether the enforcement was not undertaken due to some prior obligations of the parties, and in another case the judge notified the plaintiff that the enforcement had since taken place. 50. In no case have the plaintiffs attempted to file an appeal following notifications rendered in accordance with Article 17 of the Act. 51. With regard to the case-law, following the action for fair redress, there were two such actions, among the provided copies, in which the plaintiffs had sought redress due to the length of enforcement proceedings. One was declared inadmissible because the plaintiff had not previously made use of a request for review, and the other was rejected as premature as the plaintiff had filed his action before the expiration of the time-limit set in the notification. 52. Article 68 of this Act provides that, after obtaining the opinion of the SCC, the court shall decide who will be granted custody of the children, if there is no agreement between the parents in that respect. Exceptionally, the court can also decide on the child's contact with a parent who has not been granted custody if the other parent prevents him/her from seeing the child. The court shall change these decisions if the circumstances so require. 53. Article 333 provides that in proceedings relating to the custody of children, the court shall ex officio decide on interim measures for the protection and living arrangements of the children. 54. Article 343 provides for urgency in forcible enforcements and the need to protect children as much as possible. If the enforcement cannot be achieved through fines, children shall be taken and given to the parent who was granted custody. 55. This Act entered into force on 1 September 2007, thereby repealing the Family Law Act 1989. Article 375, however, provides for an identical provision with regard to forcible enforcement, as per the previous Act. 56. Article 4 § 1 provides that the enforcement court is obliged to proceed urgently. 57. Under Article 47, if needed, the bailiff may request police assistance; should the police fail to provide such assistance, the enforcement court shall inform the Minister of Internal Affairs, the Government, or the competent parliamentary body. 58. Articles 224-227 contain, inter alia, provisions relating to the enforcement of final child custody judgments. 59. Article 225, while placing special emphasis on the best interests of the child, provides, in particular, that there shall be an initial period of three days for voluntary compliance with a child custody order. Beyond that, however, fines should be imposed and, ultimately, if necessary, the child should be taken forcibly by the court, in co-operation with the Social Care Centre. 60. Pursuant to Article 7 § 1 the police are obliged to assist other State bodies in the enforcement of their decisions if there is physical resistance or such resistance may reasonably be expected.