CASE OF ADŽIĆ v. CROATIA
Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life)
Dmitry Dedov;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković
5. The applicant was born in 1968 and lives in Charlotte, North Carolina (the United States). 6. On 7 June 2008 the applicant married Ms K.A., a Croatian national, in Sarajevo (Bosnia and Herzegovina). On 29 November 2008 K.A. gave birth to their son, N.A. In May 2009 she moved to the United States of America to join her husband. 7. In June 2011 the applicant’s wife and son spent their summer holidays in Croatia. They were supposed to return to the United States on 31 August 2011. Instead, the applicant’s wife sent him an e-mail, informing him that she and their son were to remain in Croatia and that she had brought a civil action against him there, seeking a divorce (see paragraph 51 below). 8. On 7 September 2011 the applicant’s legal representative sent an e-mail to the Ministry of Health and Social Welfare (Ministarstvo zdravstva i socijalne skrbi, hereafter “the relevant Ministry”), as the Croatian Central Authority within the meaning of the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”, see paragraph 61 below). She asked the Ministry to urgently contact the applicant’s wife and take other appropriate measures to seek the voluntary return of the child until the receipt of the official request under the Hague Convention from the United States Central Authority. 9. On 15 September 2011 the Ministry forwarded the applicant’s request to the competent local social welfare centre with a view to establishing his wife’s intentions regarding their son and the possibility of a voluntary return to the United States. The centre immediately invited her for an interview. During the interview of 26 September 2011 she stated that while living in the United States she had been subjected to constant psychological abuse by the applicant. She did not oppose the applicant’s having contact with their son, but insisted that any contact take place under the supervision of a child welfare professional. 10. On 3 October 2011 the Ministry received an official request from the United States Central Authority under the Hague Convention for the return of the applicant’s son. 11. On 13 October 2011 the Ministry forwarded the request for return to the Zagreb Municipal Civil Court (Općinski građanski sud u Zagrebu) and thus instituted non-contentious proceedings for the return of the applicant’s son. The court received the request the next day. 12. On 24 October 2011 the court invited the local social welfare centre to submit a report on the applicant’s wife’s social and financial situation, the reasons for her taking the child to Croatia, the child’s general and psychological condition, and the potential effects on his mental development of any decision to return him to the United States. On the same day the court also invited the applicant’s wife to respond to her husband’s request for the boy to be returned. 13. In her response of 15 November 2011 the applicant’s wife opposed his request for the return of their child, with or without her. She submitted in particular that the applicant had agreed to her trip to Croatia and that his consent was not time-limited. She also stated that the applicant had expressly forbidden her to return to their flat in the United States, that he had been abusing her, and that there, unlike in Croatia, she had been completely dependent on him in every way (financially, economically, and in terms of accommodation). Lastly, she claimed that no significant changes had occurred in the care the child was receiving, given that she had been the one taking care of their son thus far, which was the reason why the child was very emotionally attached to her. 14. On 30 November 2011 the court reiterated its request of 24 October 2011 to the local social welfare centre. 15. On 13 December 2011 the local social welfare centre submitted its report and supplemented it, at the court’s request, six days later. The report stated that the applicant’s wife was taking adequate care of their son and recognised his needs, that she was emotionally positively focused on him and that he was affectionate towards her. The report also stated that she did not undermine the applicant’s role as a father, and that she encouraged the child to have contact with him, but that she felt the need to protect him from the applicant’s possible irrational behaviour, which concern the centre considered credible. The child was mentally stable, showed no signs of trauma due to the separation from his father, and had adapted well to the new situation. The report noted that the child was emotionally attached to his mother, with whom he had spent every day since birth, and that separation from her and returning him to his father would be traumatic. The centre therefore considered that returning the child to the United States would not be in his best interest. 16. On 22 December 2011 the applicant submitted to the court a certified copy of the decision of a court in North Carolina of 26 October 2011 granting him interim custody of his son. 17. In her submissions of 28 December 2011 his wife argued that the report of the social welfare centre suggested that returning her son to the United States would expose him to psychological harm or place him in an intolerable situation within the meaning of Article 13 paragraph 1 (b) of the Hague Convention (see paragraph 62 below). She therefore invited the court to dismiss the applicant’s request for return on that ground. 18. On 18 January 2012 the relevant Ministry asked the court to inform it of developments in the case. The court delivered the requested information on 8 February 2012. 19. On 26 January 2012 the court invited the applicant’s representative to submit rectified translations of the documents submitted on 22 December 2011, given that certain dates had been wrongly translated. The applicant did so on 9 February 2012. 20. In his submissions of 26 January and 17 February 2012 the applicant argued that the report and recommendation of the local social welfare centre did not correspond to the objectives, spirit and purpose of the Hague Convention. He explained that the purpose of the Hague Convention was the prompt return of the child, and not an assessment of the child’s adaptation to a new environment. The applicant further argued that his wife had not presented any evidence for her allegations of abuse, and that she had never intended to establish a permanent relationship with him. He averred that tolerating his wife’s conduct in the proceedings constituted a violation of the European Convention on Human Rights, the Hague Convention and the Convention on the Rights of the Child. 21. In her submissions of 28 and 29 February 2012 the applicant’s wife replied by contesting all the applicant’s arguments, and submitted evidence in support of her allegations of abuse. In particular, she submitted a letter from the president and founder of the association for the protection of victims of domestic violence WISH, based in Charlotte, where she had sought help while living in the United States. She also stated that the applicant no longer lived in their matrimonial home in the United States and wondered where the child was supposed to return. 22. On 15 March 2012 the Zagreb Municipal Civil Court dismissed the applicant’s request for the return of the child. The relevant part of that decision reads as follows: “... having regard to the fact that the separation of N.A. from his mother and from a safe environment would without a doubt have harmful and traumatic consequences for his psychological development, and that granting the applicant’s request might cause psychological trauma to the child and place him in an unfavourable position within the meaning of Article 13 paragraph 1 (b) of the [Hague] Convention, and having regard to the mother’s fear that the child would, upon his return to the United States, be subject to psychological and verbal abuse, which fear was deemed justified by the psychologist and the social worker of the social welfare centre ... and having regard to the fact that on 12 July 2011 proceedings for divorce of the parties were instituted, in which proceedings the court should decide on custody of the child and on the other parent’s contact rights, the petitioner’s request must be dismissed, without violating Article 8 of the European Convention on Human Rights or Article 9 of the Convention on the Rights of a Child, it was decided as in the operative part of this decision.” 23. On 17 April 2012 the applicant appealed against that decision, alleging procedural errors, incomplete findings of fact, and misapplication of substantive law as grounds for appeal. In particular, the applicant argued that his wife’s submissions of 28 and 29 February 2012 had been served on him together with the contested first-instance decision and thus in breach of the principle of equality of arms, that the court had not held a single hearing in the case, and that it had wrongly applied Article 13 paragraph 1 (b) of the Hague Convention. 24. On 2 July 2012 the Zagreb County Court (Županijski sud u Zagrebu) allowed the applicant’s appeal, quashed the first-instance decision and remitted the case. The relevant part of that decision reads as follows: “... the first-instance court based [its] decision in part on undisputed facts, and in the relevant part on the arguments and the evidence submitted by the counterparty... even though it failed to give an opportunity to the petitioner to comment on them ... [T]herefore the petitioner’s appeal had to be allowed, the first-instance decision quashed and the case remitted ...” 25. On 27 August 2012 the decision of the Zagreb County Court was served on the Zagreb Municipal Civil Court. 26. In the resumed proceedings, on 17 October 2012 the applicant sought the withdrawal of Judge M.S.B., the first-instance court judge sitting in the case, for alleged bias on her part in favour of his wife. On 21 January 2013 the President of Zagreb Municipal Civil Court granted the application for the judge’s withdrawal, and on 30 January 2013 assigned the case to another judge. 27. In his submissions of 28 January 2013 the applicant invited the court to review recordings of his conversations with his son via Skype, and asked for a provisional measure ordering the seizure of his son’s passport with a view to preventing his wife from removing him from Croatia. 28. On 4 February 2013 the court invited the applicant to submit certificates from the relevant United States authorities on his son’s habitual residence in that country and the social background of the child within the meaning of Article 13 paragraph 3 of the Hague Convention (see paragraph 62 below). On 22 February 2013 the applicant submitted documents on his permanent residence and his son’s habitual residence in the United States, and on 19 March 2013 he submitted information on the social background of the child. 29. On 14 February 2013 the applicant urged the court to schedule a hearing. 30. On 28 February 2013 the court ordered the local social welfare centre to promptly assess whether the child was settled in his new environment in terms of Article 12 paragraph 2 of the Hague Convention (see paragraph 62 below). 31. In submissions she made on the same day, 28 February 2013, the applicant’s wife reiterated that she believed that the evidence showed that the applicant was abusive, and in that respect pointed to the opinion of the psychologist from the local social welfare centre, who had indicated that the applicant’s communication with his son via Skype constituted emotional blackmail and amounted to emotional abuse. She emphasised that she could not return to the United States, because her green card had expired and she did not have any means of supporting herself there. 32. On 26 March 2013 the local social welfare centre submitted the opinion of its psychologist prepared on the basis of interviews with the applicant’s wife and son. The psychologist stated that the child’s physical and mental development was normal and that he had adapted well. She emphasised that owing to his age and his mother’s constant care for him since birth the child was emotionally primarily attached to her; separating them would therefore be traumatising for him. 33. In his submissions of 8 April 2013 the applicant argued that the psychologist’s opinion was flawed, unprofessional and arbitrary. He therefore proposed that his son be examined by independent experts, namely an institution with no role in the proceedings. The court eventually agreed to the applicant’s proposal, and on 30 September and 31 October 2013 decided to obtain an opinion from a forensic expert in psychiatry (see paragraph 39 below). 34. In submissions made on 15 and 26 April 2013 the applicant’s wife commented on the documents on the child’s social background submitted by the applicant (see paragraph 28 above). She stated that those documents were not relevant, because they had not been provided by the competent authorities of the United States but by a private law firm lacking in professional competencies and jurisdiction for issuing such documents. She stated, inter alia, that the lawyer who had compiled the report did not speak Croatian and thus could not possibly have understood the applicant’s conversations with his son and make an assessment. 35. In his submissions of 3 May 2013 the applicant argued that his wife’s conduct in the proceedings amounted to abuse of process and warned the court that the resultant delay was operating in her favour. 36. On 6 May 2013 the court invited the applicant to submit evidence that his wife, as his son’s mother, could return to the United States, in particular that she would be provided with a visa, accommodation and a work permit. The applicant did so on 29 May 2013; his wife made further comments on 1 July 2013. 37. In his submissions of 27 September 2013 the applicant stated that the way the court had conducted the proceedings was unacceptable in view of their nature and the State’s obligation under the Hague Convention. He further submitted that his rights under Article 8 of the European Convention on Human Rights had also been violated. 38. On 22 October 2013 the applicant’s wife responded to his submission, also citing Article 8 of the Convention. She also reiterated that she could no longer return to the United States, because her green card had expired. 39. On 5 December 2013 the forensic expert in psychiatry (see paragraph 33 above) submitted her expert opinion and report on whether the return to the United States would expose the child to psychological harm. The opinion and report were prepared after conducting two interviews with the applicant’s son on 20 and 27 November 2013, the first in the presence of the mother and the second in her absence. She stated that: (a) the child was well adapted to his new environment, (b) he was showing no signs of trauma, (c) the applicant’s wife did not have a negative influence on the child regarding his relationship with the applicant as his father, (d) the separation from his mother as primary caregiver and “safe base” would traumatise him, (e) transferring the child into a different environment would also constitute a trauma, but that he would be able to overcome it if his mother lived with him and if he lived in a harmonious environment, (f) the relationship between the child and his mother was positive, enabling him to develop a “secure attachment” to her, (g) the relationship between the child and his father could not be assessed, as the father had not been subjected to an expert assessment. As regards this last point the expert nevertheless made the following observations: “N. is a boy who is securely attached to his mother but also has a positive attitude towards his father, which means that the mother did not influence him [in that regard] by expressing negative views, stories, and so on ... One important factor is that the boy talks with his father, which he mentioned during the assessment, and in this way forms an opinion about him. What is most important however is that the parents coordinate their [behaviour] towards the child in order not to confuse him, which could jeopardise his normal mental development. During the assessment of the boy I did not find that such an issue was present ... [The child] does not object to going to America, but accepts it only if it is temporary and his mother can come along ... He does not show, verbally or non-verbally, any aversion to his father. It is therefore assumed that the mother influences him positively in that regard.” 40. On 2 January 2014 the relevant Ministry invited the Municipal Civil Court to speed up the proceedings and again submit a progress report (see paragraph 18 above). The court submitted the requested report on 14 February 2014. 41. In his submissions of 22 January 2014 the applicant commented on the expert report and opinion. He argued that the report suggested that his son had good memories of him and a positive attitude towards him, and that it was therefore evident that his return to the United States would not expose him to the risk envisaged in Article 13 paragraph 1 (b) of the Hague Convention. As regards the expert’s finding that the child’s return would be a traumatic experience for him, the applicant submitted that this would not have been the case had the domestic courts ordered his return within the time-limit set forth in Article 11 paragraph 2 of the Hague Convention. In any event, the evidence he submitted had suggested that his wife could accompany his son on his return to the United States, which according to the expert would have eliminated the risk of trauma. 42. On 31 January 2014 the applicant’s wife commented on the expert report and opinion by endorsing it. She argued that they, together with the previous opinions and reports of the local social welfare centre, suggested that it was evident the child should not be returned, as he would thereby suffer psychological trauma. The conditions set forth in Article 13 paragraph 1 (b) had therefore been met. 43. By a decision of 21 May 2014 the Zagreb Municipal Civil Court dismissed the applicant’s request for his son to be returned. It first held that the applicant’s wife’s removal of their son from the United States to Croatia was “wrongful” within the meaning of Article 2 of the Hague Convention (see paragraph 62 below). It then held, relying exclusively on the opinion and report of the local social welfare centre of 13 December 2011 and the opinion of the forensic expert in psychiatry of 5 December 2013 (see paragraphs 15 and 39 above), that the applicant’s son’s return to the United States would expose him to risk envisaged in Article 13 paragraph 1 (b) of the said Convention, but only if he returned without his mother. However, since the applicant had not proved that she could freely return to the United States and get a job there, the court concluded that the conditions for refusing the return of the child set forth in that Article had been met. 44. On 11 June 2014 the applicant appealed against that decision. He referred to procedural errors, incomplete findings of facts, and misapplication of the substantive law as grounds for appeal. In particular, the applicant submitted that the first-instance court had, in breach of the principle of adversarial hearing, not held a single hearing in the case, and that it had not informed him of its decision to obtain an opinion from a forensic expert in psychiatry, thus preventing him from objecting to the choice of the expert. He further complained that he had not been involved in the expert’s assessment, even though he had previously expressed willingness to make himself available for such an assessment. The applicant also stated that the court had required him to prove that his wife could return to the United States and find a job there, instead of asking her to prove that she could not. It had thereby unjustifiably shifted the burden of proof to him as regards those matters. Moreover, as regards those matters the court had drawn the wrong conclusions from the evidence presented, and had embarked on an interpretation of foreign law it was not familiar with. Lastly, the applicant argued that the first-instance court had wrongly applied Article 13 paragraph 1 (b) of the Hague Convention. 45. By a decision of 22 October 2014 the Zagreb County Court dismissed the applicant’s appeal and upheld the first-instance decision. 46. On 29 December 2014 the applicant lodged a constitutional complaint against the second-instance decision. It would appear that the proceedings are currently pending before the Constitutional Court (Ustavni sud Republike Hrvatske). 47. Meanwhile, on 17 January 2013 the applicant lodged a request for protection of the right to a hearing within a reasonable time (zahtjev za zaštitu prava na suđenje u razumnom roku) with the Zagreb County Court about the length of the above proceedings. He argued that the proceedings had lasted for one year and four months without a scheduled hearing or a decision rendered, contrary to Article 11 of the Hague Convention (see paragraph 62 below) and Article 8 of the European Convention on Human Rights. 48. By a decision of 15 June 2014 the Zagreb County Court dismissed the applicant’s request. It held that the proceedings complained of had thus far lasted some two years and eight months, which could not be considered excessive, especially as there had been no substantial periods of inactivity. 49. On 9 September 2014 the applicant appealed against that decision. 50. By a decision of 20 November 2014 the Supreme Court (Vrhovni sud Republike Hrvatske) dismissed the applicant’s appeal and upheld the first-instance decision of 15 June 2014. 51. Meanwhile, on 12 July 2011 the applicant’s wife brought a civil action against the applicant in the Zagreb Municipal Civil Court seeking a divorce and custody of their son. 52. On 18 July 2011 she asked the court to issue a provisional measure granting her interim custody of N. until delivery of the final judgment in those proceedings. 53. In his submissions of 3 July 2012 the applicant argued that the Croatian courts lacked international jurisdiction in the case, and submitted a certified translation of the decision of a court in North Carolina of 27 April 2012 granting him sole custody of his son. 54. At the hearing held on 9 July 2012 the court dismissed the applicant’s objection regarding lack of jurisdiction. 55. By a decision of 15 October 2012 the court issued the provisional measure requested by the applicant’s wife and awarded her interim custody of their son. 56. On 21 November 2012 the applicant appealed against that decision to the Zagreb County Court. 57. On 24 April 2014 that court returned the case file to the Zagreb Municipal Civil Court, warning it that under Article 16 of the Hague Convention the judicial or administrative authorities of the State to which the child had been removed were not entitled to decide on the right of custody of the child until it had been determined under the Hague Convention that the child was not to be returned (see paragraph 62 below). Accordingly, it instructed the Municipal Civil Court to ascertain whether a final decision had been given in the proceedings for the return of the child. If no such decision was adopted, the County Court further instructed the Municipal Court to stay the proceedings until the delivery of such a decision.