CASE OF ZDRAVKOVIĆ v. SERBIA
No violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova
5. The applicant was born in 1973 and lives in Belgrade. 6. The applicant and S.S. (“the respondent”) married in 1998. Their son V.S. was born in August 1999. They lived in the respondent’s parents’ house in a neighbourhood of Belgrade. 7. In May 2008 the applicant moved to her parents’ house in the same neighbourhood. V.S. continued living with his father and his paternal grandparents. 8. On 19 May 2008 the applicant filed a request for interim custody with the competent first-instance court. 9. On 8 July 2008 the first-instance court rejected the applicant’s request for interim custody, but granted her extensive access rights in respect of the child pending the final outcome of the custody proceedings. This interim access order was immediately enforceable. 10. It appears that the interim access order was respected, with some resistance on the part of the child, until 13 August 2008, when the child ran away from the applicant during a visit and went back to the respondent’s house. 11. On 22 September 2008 the enforcement judge ordered enforcement of the said access order. After several failed attempts by the applicant to spend time with the child in accordance with the order, the enforcement judge sent a bailiff on 18 and 20 November 2008 to make an unannounced visit to monitor the applicant’s attempt to make contact with the child. During the visit, the bailiff informed the enforcement judge that the respondent had brought the child to the front gate of the house, but the child had refused to leave with the applicant, even after the respondent tried to persuade him, and had gone back inside. After receiving the report, the enforcement judge scheduled an enforcement hearing for 5 December 2008. 12. On 5 December 2008 the enforcement judge ordered a child support team from V.S.’s school to implement a system of psychological preparation to assist the child’s acceptance of contact with his mother. 13. On 9 January 2009 the enforcement judge asked the Social Care Centre to contemplate initiating corrective monitoring of the respondent’s exercise of parental rights in the light of the respondent’s substantial influence on the child’s hostility toward his mother. 14. On 7 April 2009 the Social Care Centre placed the respondent under formal corrective supervision (korektivni nadzor nad vršenjem roditeljskog prava). On 19 June 2009 the Social Care Centre, with the approval of the enforcement judge, applied the same measure to the applicant so as to enhance the parents’ collaboration with a view to satisfying the child’s emotional needs. 15. In the meantime, on 5 June 2009, the enforcement judge heard a psychologist working with the child. The psychologist advised the judge that interviewing the child within the proceedings would not be in his best interest. 16. Due to the respondent’s failure to prepare the child appropriately for the contact with his mother, on 4 May 2009 the enforcement judge ordered the respondent to pay a fine in the amount of 10,000 Serbian dinars (RSD) and on 6 June 2009 a fine in the amount of 150,000 RSD, both within three days. On 5 October 2009 the competent second-instance court rejected the respondent’s appeals against the fines. On 19 February and 10 May 2010, after the failure of the applicant to pay the fines, the enforcement judge ordered their mandatory enforcement. 17. On 26 November 2009 the Social Care Centre asked the enforcement judge to postpone enforcement of the access order for three months in view of the pending parental therapy. The Centre further asked for, and the judge approved, a further three months of therapy, stating that an improvement in the child’s attitude as well as in the parents’ relationship had been achieved. The Centre also proposed to the applicant and the respondent to stay the ongoing court proceedings until the therapy had ended. They observed that the court proceedings, in which the parents acted as opponents, jeopardised the progress achieved to date. It would appear that the applicant and the respondent did not accept this recommendation. 18. The parental therapy, which at that time had already lasted for six months, included 23 sessions in which the Social Care Centre’s professionals continuously and intensively worked with the applicant, the respondent, the child and the paternal grandparents to reach mutually acceptable arrangements and enforce the interim measures in line with the best interest of the child. 19. On 13 July 2010 the custody judgment of 24 November 2009 became final (see paragraph 33 below) and the decision on interim custody rights came to an end. The enforcement proceedings were later formally terminated by the enforcement judge on 28 February 2011. The enforcement judge, however, explicitly ordered continuation of the enforcement in respect of the fine of June 2009. 20. On 25 October 2008 the applicant lodged a new request for interim custody after the Mental Care Institute (Institut za mentalno zdravlje, hereafter “MCI”) conducted an examination of the parental capacity of both parties at the request of the first-instance court. The MCI report recommended that custody be awarded to the applicant. 21. On 11 November 2008 the first-instance court granted interim custody to the applicant and ordered the respondent immediately to surrender the child to her. It also quashed the part of the interim order of 8 July 2008 containing its decision not to grant custody to the applicant. The rest of the interim access order remained in force. 22. On 4 December 2008 the enforcement court ordered enforcement of the interim custody order. The respondent appealed on 26 December 2008, claiming that the child himself did not want to live with the applicant. The appeal was rejected on 29 September 2009. 23. The first attempt to reunite the applicant with the child took place on 22 December 2008. The enforcement judge, a bailiff, several representatives of the Social Care Centre, two uniformed policemen, three plain clothes policemen, the applicant and her lawyer all entered the courtyard of the respondent’s house, expecting that the child would be surrendered. The judge and the Centre’s representatives explained to the child in front of the others that he should leave and go with his mother to her house, but the child rejected the planned reunion and went back inside. The respondent allegedly would not allow the enforcement to take place in the house. He maintained that he had informed the child that various officials would come, but had not prepared him for reunion. The applicant refused forceful removal of the child. The enforcement judge noted that the child was not yet prepared for a transfer of custody and postponed the enforcement until January 2009 at the Social Care Centre’s premises. The enforcement judge asked the parties and the Social Care Centre’s representative to prepare the child adequately for the next reunion. 24. On 15 January and 4 February 2009 the enforcement judge adjourned the custody transfer scheduled for those dates as it was awaiting an opinion from the Social Care Centre regarding the formal corrective supervision of the respondent, as requested in the interim access enforcement proceedings (see paragraph 14 above). 25. The enforcement judge re-scheduled the transfer of custody for 1 April 2009 at the Social Care Centre’s premises. The attempt of transfer was conducted in the presence of the enforcement judge, the psychologist, the psychiatrist and the lawyer from the Social Care Centre and police officers. The child again refused to be separated from his father. The police explained that they could not forcefully remove the respondent from the premises to enable the social experts and the judge to facilitate a conversation with the child in his absence, since the child was clinging on the father, crying and refusing to let him go. It appears that the applicant was also against the use of force (according to a report to the enforcement judge by the Social Care Centre of 31 March 2010, the applicant refused the possibility of the use of force throughout the proceedings). The Social Care Centre recommended that psychotherapeutic support be provided for the child. The enforcement of the custody transfer was postponed. Shortly afterwards, the respondent was placed under the corrective supervision of the Social Care Centre (see para. 14 above). 26. On 5 June 2009 the enforcement judge held a hearing which appears to have been the last one within these enforcement proceedings. 27. The applicant petitioned the enforcement judge to fine the respondent for obstructing her contact with the child, hoping that this would compel him to surrender the child. 28. On 26 June 2009 the enforcement judge imposed on the respondent a fine in the amount of 150,000 RSD for failing to appropriately psychologically prepare the child for the reunification. It would appear that the fine has been paid. 29. On 12 February and 31 March 2010 the Social Care Centre informed the enforcement judge that its psychological therapies in respect of the family in question had produced no results (see paragraphs 17-18 above). According to their reports, it became clear that the respondent had cooperated in form only and had in fact failed to take steps to encourage the child to have substantive contact with the applicant. 30. On 13 July 2010 the custody judgment of 24 November 2009 became final and the decision on interim custody rights came to an end. From that moment, efforts to enforce the final custody judgment commenced (see paragraphs 38-42 below). On 25 March 2011 the enforcement judge formally terminated the enforcement proceedings. 31. On 19 May 2008 the applicant lodged a civil claim requesting the dissolution of her marriage with S.S., sole custody of V.S. and maintenance. 32. On 24 November 2009 the first-instance court dissolved the applicant’s marriage, granted her sole custody of V.S. and specified the respondent’s access rights. 33. On 13 July 2010 and 18 January 2011 the second-instance court and the Supreme Court of Cassation, respectively, upheld this judgment. 34. On 28 December 2009 the applicant filed a constitutional appeal with the Constitutional Court of Serbia (Ustavni sud Republike Srbije). She relied on various Articles of the Constitution, Articles 6, 8 and 13 of the Convention and Articles 3 and 9 the UN Convention on the Rights of the Child. She sought redress for the protracted length of the custody and subsequent criminal proceedings and the non-enforcement of the judicial interim access and custody decisions in her favour which, she claimed, violated her rights to a fair trial and to family life. She also complained that she had not had any legal avenue available to expedite those proceedings. 35. On 22 July 2010 the Constitutional Court rejected the applicant’s appeal. 36. As regards the protracted length of the custody proceedings, the Constitutional Court considered that the first-instance court had acted diligently, without any substantial periods of inactivity. It found the case to have been particularly complex, as the expert findings regarding the best interests of the child had conflicted with the latter’s own wish as to who to live with. 37. It also found that the non-enforcement of the interim access and custody orders during the same period had been attributable to the particular complexity of the case, as the child had objected to being reunited with the applicant. It found that the enforcement court had undertaken, without any delay, all necessary measures, including fining the respondent, for the purpose of enforcing effectively the applicant’s rights. 38. The judgment of 24 November 2009 became enforceable on 27 September 2010 and the enforcement order was issued on 29 November 2010. 39. The first forcible transfer of custody was scheduled for 9 March 2011, but the child refused any kind of contact with the applicant. The court noted that the respondent had failed to prepare the child for reunion. The applicant explicitly refused to countenance the use of force against the respondent and the child as the means of enforcement. The enforcement was therefore adjourned. 40. On 23 March 2011, upon the initiative of the Social Care Centre, the applicant and the respondent signed an Agreement on Access Rights designed to assist the re-establishing of contact between the applicant and V.S. in order to facilitate the enforcement of the custody judgment. 41. Despite this agreement, on 25 March 2011 the enforcement court imposed a fine on the respondent in the amount of RSD 100,000 because of his failure to comply with the judgment of 24 November 2009. It also ruled that the respondent was to be given three days from the date of receipt of that order to surrender the child voluntarily to the applicant and with the added condition that, should he fail to do so, he would have to pay a further fine of RSD 150,000. The respondent did not comply with the order and it seems that the fine in the amount of 100.000 RSD was subsequently imposed and paid. 42. The court scheduled a new forcible transfer of custody for 9 March 2011. In preparation for the enforcement, the Social Care Centre’s psychologist drew up a detailed plan of action. The psychologist’s assessment, after working with the child, was that such a transfer would be impossible or highly traumatic for the child and the enforcement was postponed once again. 43. On 9 February 2011 the respondent filed a claim for revision of the judgment of 24 November 2009, seeking sole custody of V.S. He also requested an interim custody order to the same effect. 44. On 24 June 2011 the Social Care Centre provided the first-instance court with an expert opinion. The Social Care Centre acknowledged that there had been no mechanisms available to facilitate a forcible physical transfer of child custody to the applicant in view of the respondent’s refusal. According to the report, the only feasible proposal would be for the child to continue living with his father. Even though, taking into account the chronology of events, parental capacity, justice and equity, the opposite proposal would be more appropriate, it could propose only this arrangement “not as an expression of their wish, but as the sole solution which is possible to impose and enforce in practice”. A change of residence would in any event have a negative impact on the child’s development. 45. On 20 June 2012 the first-instance court granted sole custody to the respondent, ordered the applicant to pay child maintenance and specified the applicant’s access rights as eight hours every weekend, as well as specified periods of school holidays. 46. On 29 August 2008 and 23 June 2009 the applicant filed criminal complaints against the respondent for parental child abduction and continuous non-compliance with the interim access and custody orders. On 2 June 2009 and 28 September 2010 the competent prosecutor’s office charged the applicant with those crimes. None of the scheduled hearings was held. In September 2011 the first-instance court stayed the criminal proceedings as the prosecutor’s office had dropped the charges. The applicant subsequently took over the prosecution as subsidiary prosecutor. On 20 June 2012 the first-instance court, in a reasoned judgment, acquitted the respondent. It found, on the basis of numerous testimonies, three expert opinions, four expert reports from the civil proceedings case-file and other documentary evidence that the respondent always made the child available for enforcement, that he never physically or verbally, actively or passively obstructed enforcement at any point, and that there were no indications that the child ever showed signs that he was under pressure or undue influence not to have contact with his mother. On 25 October 2012 the second-instance court upheld this judgment. 47. It would appear that the applicant and her son have re-established contact with each other since the signing of the Agreement on Access Rights of 23 March 2011 and the revision of the custody judgment of 20 June 2012. It would appear that they have been meeting every weekend for at least an hour without supervision. The child still lives with the respondent.