CASE OF GLUHAKOVIC v. CROATIA
Remainder inadmissible;Violation of Art. 8;Respondent State to take individual measures;Non-pecuniary damage - award
Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Peer Lorenzen
4. The applicant was born in 1960 and lives in Rijeka. 5. In February 1999 the applicant married A. However, in July, while she was pregnant, A. left the applicant and on 25 December 1999 gave birth to a daughter, I.K. 6. Several separate proceedings concerning contact between the applicant and his daughter I.K. were conducted before the Rijeka Municipal Court as well as before the Rijeka Social Welfare Centre (hereinafter “the Social Welfare Centre”). 7. At the beginning of 2000 the applicant asked the Social Welfare Centre to issue a decision regulating his contact with I.K. 8. On 26 April 2000 the applicant complained to the Social Welfare Centre that he saw his daughter only for one hour a week and that the child, who had started to recognise human faces, was scared of him because his face was not familiar to her. He requested to be allowed to see the child every four days, because he worked in Italy and his work schedule was organised in such a way that he worked for three whole days and then had a fourth day off. 9. On 4 May 2000 the applicant saw a psychiatrist at the suggestion of the Social Welfare Centre's personnel. A medical report drawn up by the psychiatrist indicated that the applicant was suffering from paranoid psychosis and recommended that contact between the applicant and I.K. be supervised by the child's mother or another person. The psychiatrist reiterated that conclusion in his report of 1 June 2000. 10. On 10 June 2000 the Social Welfare Centre issued a decision giving custody of I.K. to the child's mother and ordering that meetings between the applicant and I.K. take place every Tuesday – between 9.30 a.m. and 10.30 a.m. at the Rijeka Counselling Centre for Marriage, Family and Youth (hereinafter “the Counselling Centre”) in the presence of the child's mother and an employee of the Counselling Centre. 11. On 16 June 2000 the Ministry for Work and Social Welfare quashed the first-instance decision on the ground that it was necessary to hold an oral hearing before adopting a decision in the case. Nevertheless, the meetings between the applicant and I.K. were arranged at the Counselling Centre. 12. On 19 January 2003 the Social Welfare Centre issued a decision ordering meetings between the applicant and I.K. every Tuesday – between 9.30 a.m. and 11.30 a.m. at the Counselling Centre in the presence of an employee of the Counselling Centre. 13. The applicant lodged an appeal on 19 January 2003 which was dismissed on 7 December 2004 by the Ministry of Health and Social Welfare. 14. Meanwhile, on 21 March 2000 A. brought a civil action in the Rijeka Municipal Court seeking a divorce from the applicant. On 24 July 2002 the Rijeka County Court adopted a divorce judgment ordering the applicant to pay maintenance for I.K. and also granting him contact with I.K. every Tuesday between 9.30 a.m. and 11.30 a.m. in the presence of a third person. The applicant lodged an appeal arguing, inter alia, that it was difficult for him to come to Rijeka every Tuesday, due to his work schedule in Italy. He further explained that in order to see his daughter on Tuesdays, he often had to drive at night and was obliged to ask his colleagues to replace him at work, which caused him significant difficulties. 15. On 15 January 2003 the Rijeka County Court quashed the part of the judgment concerning contact between the applicant and I.K. and that part of the case was remitted to the Municipal Court. 16. For the purposes of the resumed proceedings before the Municipal Court, on 2 March 2005 the Counselling Centre drew up a report on the meetings between the applicant and I.K. The report stated that the applicant and his daughter had been meeting regularly on the Counselling Centre's premises since June 2000 and that they had developed a warm personal relationship. However, in view of the child's age and needs, further meetings on the Counselling Centre's premises would not be possible because the premises were not considered appropriate. 17. At a hearing held on 6 September 2005 a psychologist from the Counselling Centre, S.M., stated that the meetings between the applicant and his daughter had been held in the Centre's kitchen or offices of its employees and that the Centre had no suitable space for the meetings. 18. That opinion was reiterated in a further report of 8 November 2005. 19. In the resumed proceedings the Rijeka Municipal Court gave judgment on 30 November 2006 granting contact between the applicant and I.K. every Tuesday – between 9.30 a.m. and 11.30 a.m. in the weeks when I.K. attended school in the afternoon, and between 3.30 p.m. and 5.30 p.m. when I.K. attended school in the morning – at the Counselling Centre, in the presence of a member of staff. The Municipal Court based its decision on reports by a psychologist and a psychiatrist on the applicant's mental health, commissioned for the purposes of the proceedings. The reports established that the applicant suffered from paranoid psychosis and stipulated that contact between him and I.K. should be supervised. The Municipal Court made no comments as regards the applicant's argument about the time of the meetings and his work schedule. 20. As regards the place of the meetings, the relevant part of the judgments reads: “... this court has ordered that contact ... between the child I.K.G. and her father still be held at the premises of the Counselling Centre, under the supervision of a third person, to be designated by ... the Welfare Centre ... because it finds that this decision is in the interests of the welfare of the child. An extension of [the father's] parental rights ... is possible on the condition that he undergoes the treatment recommended in the report by the expert [in psychiatry]. This court has ordered that contact take place on the premises of the Counselling Centre given that during these proceedings the Welfare Centre did not make an adequate proposal as to the premises on which contact – which should be limited in view of the father's diagnosis – should take place. This court has also taken into account the fact that the [child] attends school on a changing schedule and has ordered contact accordingly ...” 21. On 19 December 2006 the applicant lodged an appeal, in which he again explained the situation regarding his work schedule. For that reason he sought an order for contact with I.K. every fourth day for a duration of ten hours, or every eighth day, with I.K. spending the night at his home. He also requested to spend half of the winter and summer school holidays, half of all bank holidays, and half of Christmas Day, which was also I.K.'s birthday, with her. 22. On 9 March 2007 the Rijeka County Court upheld the judgment of the first-instance court. It made no comments as to the applicant's arguments related to his work schedule in Italy. The relevant part of the judgment concerning a suitable place for meetings between the applicant and his daughter reads: “On the basis of the report by the Rijeka Welfare Centre of 28 July 2005 the first- instance court established that the [opinion of the Welfare Centre] was that the meetings between the applicant and his daughter could no longer be held at the premises of the Counselling Centre because it was no longer suitable for the child's needs and in this respect the [first-instance] court heard evidence from witness S.M., a psychologist at the Counselling Centre. On the basis of her evidence the first-instance court established that on several occasions the Rijeka Welfare Centre had sought the opinion of the Counselling centre about the meetings between the applicant and his daughter; that the witness had actively participated in these meetings; that the relationship between the applicant and his daughter was good; and that the staff of the Counselling centre were of the opinion that the decision by the Welfare Centre concerning contact should be altered, an opinion with which she personally agreed, in particular in view of the passage of time since the last decision by the Welfare Centre, that the daughter had advanced in age and that the premises of the Counselling Centre were no longer suitable. However, she had no idea or suggestion as to a suitable location for the meetings or as to whether the presence of a third person was necessary. Finally, [she was of the opinion] that the meetings could also be held outside [the centre], but in the presence of a third person given that the applicant suffered from certain disorders, [which could lead to him acting overly] suspicious. ... On the basis of a further opinion by ... expert [in psychiatry] M.B. of 6 November 2006 the first-instance court established that ... there were no reasons to restrict the rights the applicant had thus far enjoyed in connection with his contact with his daughter, and that a possible extension of his parental rights could be granted on the condition that he cooperated in his medical treatment. Taking the above-mentioned report as a starting point ... the [first-instance] court ordered that the meetings between I.K.G. and the applicant should continue at the premises of the Counselling Centre in the presence of an expert ... since during the proceedings the Welfare Centre had made no adequate proposal as to the premises on which contact, which, in view of the applicant's diagnosis, should be restricted, should take place. The [first-instance] court found that that decision had also taken into account that the daughter attended school on a changing schedule and ordered contact with her father accordingly. An extension of his parental rights ... was possible on the condition that he undergo treatment, as recommended in the opinion of the expert. ... ... in its reasoning the first-instance court cites correct and valid reasons which this court endorses completely. ... the first-instance court ordered that the meetings between the applicant and his daughter were to be held on the premises of the Counselling Centre, because during the proceedings the Welfare Centre did not make an adequate proposal as to suitable premises for those meetings ...”. 23. On 5 June 2007 the applicant lodged a constitutional complaint. Inter alia, he reiterated his arguments about the time of the meetings with I.K. and his work schedule and the arguments concerning the suitability of the premises for their meetings. 24. On 25 September 2008 the Constitutional Court dismissed the applicant's constitutional complaint. It made no comments as to the applicant's arguments about the time of the meetings and his work schedule and his arguments concerning suitable premises for the meetings. 25. In the meantime, and subsequent to the judgment of the Rijeka County Court of 9 March 2007 (see paragraph 22 above) on 27 August 2007 the applicant sought the Rijeka Municipal Court to change the decision on contact between him and I.K. in view of his work schedule, and in view of the statement of the Counselling Centre that there was no suitable space there for meetings between the applicant and I.K. He also stated that on 23 July 2007 the Counselling Centre had informed him that meetings were no longer possible on its premises. The applicant asked that meetings between him and I.K. be held in his flat in Rijeka. 26. In his submissions of 6 September 2007 the applicant complained that he had not seen I.K. since July 2007 because the Counselling Centre had been closed. 27. At a hearing held on 29 October 2007 the applicant stated that he had had no contact with I.K. for the past three months. 28. On 29 October 2008 the Rijeka Municipal Court ordered contact between the applicant and I.K. one day a week for two hours on the premises of the Rijeka Social Welfare Centre in the presence of J.T., a retired special needs expert. The relevant part of the decision reads: “... this court has ordered that the meetings [between the applicant and his] daughter shall take place one day a week for a duration of two hours, depending on the child's school activities and the day when the father is in Croatia. Since the father is free every fourth day, because he works for three whole days, he is always free on one day of the week. Since the applicant had no adequate suggestion as to the premises of the meetings, this court holds that the meetings are to be held on the premises of the Rijeka Social Welfare Centre, which is the most suitable place [in terms of] space for the meetings.” 29. On 7 January 2009 the applicant lodged an appeal with the Rijeka County Court complaining that the meetings were not possible at the Social Welfare Centre and asking that the meetings be held in his flat in Rijeka. He also complained that for the past seventeen months he had had no contact with I.K. 30. On 20 January 2009 the Social Welfare Centre submitted to the Rijeka County Court that they had no suitable place for meetings between the applicant and I.K. since, owing to a shortage of space, two to three staff members shared the same office. The only space where the applicant and I.K. could meet was the corridor, which, in the Centre's view, was not a suitable location. 31. On 3 November 2009 the Rijeka County Court upheld the decision of the Rijeka Municipal Court of 29 October 2008 and specified that meetings be held between the applicant and I.K. every Thursday – between 9.30 a.m. and 11.30 a.m. in the weeks when I.K. attended school in the afternoon, and between 3.30 p.m. and 5.30 p.m. when I.K. attended school in the morning – at the Social Welfare Centre, in the presence of J.T. The relevant part of the decision reads: “The assessment of the first-instance court as regards the place for the meetings is correct ... ... the first-instance court correctly assessed that, in view of the circumstances of the case, the most suitable place for the meetings could for now only be the premises of a State institution, since an institutional setting would enable an appropriate response to made to any unexpected situation. ... ... this court finds that the [Rijeka Social Welfare Centre] as a public institution responsible for ... implementation of measures aimed at protecting the interests of minor children, is obliged to enforce such measures, including the supervision of meetings between children and their parents, and to ensure that all necessary conditions are met. This includes [providing] the premises for meetings where they cannot be organised in a different manner. ... ... this court finds that it is in the interest of the daughter, irrespective of her current age ..., to meet her father every Thursday for two hours, depending on her school schedule, because Thursday is, owing to the child's weekly schedule, the most appropriate day.” 32. On 7 May 2009, while his appeal against the decision of the Municipal Court was still pending, the applicant again requested the Rijeka Municipal Court to change its decision on contact between him and I.K. He relied on the above allegations of the Centre about the shortage of space. 33. The applicant also reiterated his arguments as regards his work schedule. 34. On 8 March 2010 the Rijeka Municipal Court ordered contact between the applicant and I.K. once a week when the applicant was free for a duration of three hours in the presence of a third person. The parents were to find a solution as to the place of the meetings. 35. The applicant alleged that this judgment was not properly enforced because no suitable place for the meetings was found and the child's mother refused to let him meet I.K. in his flat. 36. The relevant articles of the Croatian Constitution (Ustav Republike Hrvatske, Official Gazette no. 85/2010. of 9 July 2010, consolidated text) provide: “Everyone has the right to respect and legal protection of his or her private and family life ...” 37. The relevant part of the Family Act from 1998 (Obiteljski zakon, Official Gazette no 162/1998), in force until 22 July 2003, reads: “When parents do not live together a social welfare centre shall decide with which parent the child shall live and also order the manner and time of the contact with the other parent, where it is not decided by this Act that such decision is to be adopted by a court. ...” 38. The relevant part of the Family Act (Obiteljski zakon, Official Gazette nos. 116/2003, 17/2004, 136/2004 and 107/2007) reads: “(1) When parents do not live together a court shall decide with which parent the child shall live and also order the manner and time of the contact with the other parent. (2) In order to ensure the child's welfare contact and meetings between the child and the parent he or she is not living with may be restricted or banned, and in view of the circumstance of each case a court may also designate a person who shall be present during contact. ...”