CASE OF VELJKOV v. SERBIA
Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - award
András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Ireneu Cabral Barreto
5. The applicant was born in 1958 and lives in Jadranska Lešnica. 6. The applicant lived with her partner, P.J., in Belgrade from May 2001 until January 2006, when she moved to her parents’ house, as a result of alleged “psychological abuse” by her partner. Their daughter M.J., who was born in 2002, continued to live with her father. 7. On 20 February 2006 the applicant lodged a civil claim against P.J. (“the respondent”) with the First Municipal Court (Prvi opštinski sud) in Belgrade (“the Municipal Court”), seeking sole custody of M.J. and child maintenance (vršenje roditeljskog prava i izdržavanje). 8. On 1 March 2006 the respondent lodged a separate claim against the applicant, with the Municipal Court, also seeking sole custody of M.J. and child maintenance. 9. On 16 May 2006 the Municipal Court obtained an opinion from the Palilula Social Care Centre (Gradski centar za socijalni rad, Odeljenje Palilula), which stated that the custody should be given to the mother. 10. On 17 May 2006 the applicant requested the court to issue an interim measure regulating her right of access to M.J. 11. At the hearing held on 8 June 2006, the respondent also requested an interim measure awarding him temporary custody of M.J. 12. On 15 June 2006 the Municipal Court ordered the respondent to allow the applicant access to M.J. by bringing their daughter at 2 p.m. every last Friday of the month to the Loznica Social Care Centre and collecting her from the applicant in Belgrade at the same time the following Friday. 13. On 20 June 2006 the respondent objected to the Social Care Centre’s opinion of May 2006 and subsequently, on 10 July 2006, appealed against the interim access order. It would appear that the latter appeal was forwarded to the District Court (Okružni sud) in Belgrade on 27 August 2006. 14. The next hearing, scheduled for 3 July 2006, was adjourned because the Municipal Court had failed to secure the presence of lay judges (sudija porotnika) for family matters as required under the relevant provisions of the domestic law. 15. The hearing scheduled for 5 September 2006 was also adjourned, because at that time the case file was physically in the possession of the District Court, which was about to rule in respect of the adopted interim access order. 16. On 14 September 2006 the District Court in Belgrade rejected the respondent’s appeal and upheld the interim access order of 15 June 2006. 17. On 30 November 2006 the Municipal Court considered whether to join the two sets of civil proceedings into a single case file, and adjourned the case until 30 January 2007. 18. Meanwhile, on 6 November 2006 the Palilula Social Care Centre informed the Municipal Court that the respondent’s objection to their first opinion of 16 May 2006 had been accepted, because the competent Ministry had found irregularities in its work. The Centre also warned the court that it could not have reliably assessed whether the conclusion of this opinion had been in the best interest of the child, in particular due to the need to ascertain the applicant’s state of mental health. 19. Following the Centre’s additional updated opinion of 4 December 2006 (see paragraph 52 below), on 11 December 2006 the Municipal Court issued a new interim access order, restricting the applicant’s access to M.J. to two hours on Fridays at the premises of the Palilula Social Care Centre in Belgrade, thereby rendering the interim access order of 15 June 2006 obsolete. 20. On 22 December 2006 the applicant appealed against the new interim access order, while on 9 January 2007 she informed the court that she had not been and would not be going to Belgrade to see her daughter, because she was afraid of the respondent’s abusive behaviour and intimidation. 21. On 30 January 2007 the Municipal Court noted that the applicant had appeared in person but that the hearing had been scheduled for the following day and that she would not be able to attend it." (see paragraph 17 above). 22. The interim access order was confirmed by the District Court in Belgrade on 14 February 2007. 23. On 27 April 2007 the Municipal Court formally joined the two sets of proceedings, while the applicant submitted that an opinion of the Loznica Social Care Centre could also be obtained and interim custody be granted to her. 24. On 7 May 2007 the Municipal Court granted interim custody in respect of M.J. to the respondent, pending the final outcome of the ongoing civil suit. It also requested the Palilula Social Care Centre to produce an expert opinion as to how custody should be determined in the best interests of the child, as well as on the access rights of the non-custodial parent. The interim access order of 11 December 2006 remained in force as regards the applicant’s contact with her daughter. 25. On 6 June 2007 the District Court upheld this decision on appeal. On 13 July that court forwarded the case file to the Municipal Court. 26. On 18 June 2007 the Palilula Social Care Centre produced a report, giving its recommendation on how the custody and access rights should be determined (see paragraph 58 below). 27. On 27 September 2007 the Loznica Social Care Centre issued a report on the applicant’s visits to that centre. 28. The hearing scheduled for 22 November 2007 was adjourned because of a strike by the judicial authorities. 29. On 12 December 2007 the applicant requested withdrawal of the Municipal Court judge, but on 19 December 2007 the President of the court dismissed her request. 30. At the next hearing, held on 20 December 2007, the Municipal Court decided to hear both parties in person on 28 January 2008. 31. Further hearings were held on 28 January and 4 March 2008. On the latter date the applicant requested the Municipal Court to obtain an expert opinion on the psychological and physical ability of both her and the respondent to take care of the child. 32. After both parties had made an advance payment of the costs of the expert opinion, on 3 April 2008 the Municipal Court ordered the Committee of the Belgrade Medical Faculty to prepare the expert report. 33. However, at a hearing held on 1 October 2008, the court reversed its decision and ordered that the expert report be prepared by the Dr Laza Lazarevic Institute of Neuropsychiatry. 34. On 19 March 2009 the Board of Experts of the Institute of Neuropsychiatry informed the Municipal Court that due to the negative attitude of the applicant towards this institution and the allegation of previous forgery of her health certificates by the Institute’s doctors, it would not be able to obtain expert testimony at the hospital. On the same date the Municipal Court requested the Social Care Centre to enable the Board of Experts to have the applicant and the child observed at the Centre. 35. Following the examinations of the parties and M.J. on 19 and 24 March 2009, on 27 April 2009 the Board of Experts submitted its report on the parties’ ability to exercise parental rights and responsibilities. It also submitted an additional report on 15 May 2009 in which it recommended that custody be granted to the respondent. 36. The hearing scheduled for 8 July 2009 was adjourned, because the applicant had appointed a lawyer, who needed some time to study the case file. 37. The next hearing, scheduled for 30 September 2009, was adjourned at the request of the applicant’s lawyer. He was ordered by the court to respond to the expert report within fifteen days. 38. The hearing scheduled for 11 November 2009 was not held, because of a strike by the Bar Association. 39. The hearing scheduled for 9 December 2009 was adjourned indefinitely, due to an ongoing reform of the judiciary. 40. The applicant submitted objections to the expert report on 11 November and 9 December 2009. The respondent replied to the applicant’s objections on 31 December 2009. On 3 March 2010, the applicant commented on the respondent’s observations. 41. The Board of Experts replied on 30 March 2010 to the applicant’s comments on its report. On 9 June 2010 the respondent commented on both the experts’ and the applicant’s observations. 42. On 17 June 2010 the Court of First Instance held its first hearing after the reform of the judiciary had been concluded. 43. On the 18 June 2010 the Court of First Instance ordered M.J.’s school psychologist to provide an assessment of the psycho-physical state of the child. It also ordered the Palilula Social Care Centre to provide an updated opinion on the determination of custody and to inform it about the results of the pending corrective monitoring of the parties’ exercise of parental rights by the Marriage and Family Counselling Office (see paragraph 65 below). 44. On 19 July 2010 the court received the assessment from the school psychologist. 45. The Court of First Instance scheduled the next hearing for 15 September 2010 in order to hear both parties. 46. It would appear that the proceedings are still pending before the first-instance court. 47. Following the adoption of the interim access order on 15 June 2006, the first attempt to reunite the applicant with M.J. took place on 7 July 2006, at the Loznica Social Care Centre. According to the Centre’s report, the respondent had not prepared M.J. for the reunion and was verbally aggressive throughout the meeting. M.J. was initially reluctant to approach the applicant, but she ultimately “came closer” and accepted gifts from her mother. The Centre proposed that future meetings be scheduled on Fridays, in a park not far from the respondent’s flat in Belgrade, before the applicant and M.J. started spending an entire week together. The applicant stated that she feared being left alone with the respondent. It was the first and last time that the respondent brought M.J. to Loznica, refusing to do so afterwards. 48. On 14 August 2006 the applicant formally requested enforcement of the interim access order of 15 June 2006. On 17 August 2006 the Municipal Court dismissed the applicant’s request as incomplete, since the interim access order bore no stamp certifying that it had become final. 49. On appeal, on 13 November 2006 the District Court quashed this decision and remitted the case. It would appear that this decision was served on the applicant on 11 May 2007. 50. The applicant continued going to the premises of the Loznica Social Care Centre on Fridays, stating that she was afraid to meet her daughter in the presence of the respondent in Belgrade and insisting on meeting her in Loznica. Following her query about the possible presence of social workers during those meetings, she was informed that this was not the usual practice. 51. On 24 November 2006 the applicant called on the Loznica Social Care Centre to request the enforcement of the interim access order as rendered by the Municipal Court. She was informed that the Centre was not in charge of the case, as M.J. lived in Belgrade. 52. On 4 December 2006 the Centre submitted an additional updated opinion to the Municipal Court, stating that, taking into account that there had been no regular or substantial contact between the applicant and M.J. in recent months, it was in the child’s best interests to remain temporarily living with the father. The Centre suggested providing a new final report upon putting more efforts into restoring the bond between the mother and daughter. 53. On 11 December 2006 the Municipal Court issued a new interim access order, restricting the applicant’s contact with M.J. to two hours each Friday at the Palilula Social Care Centre in Belgrade. 54. On 18 December 2006 the Loznica Social Care Centre sent its opinion to the Palilula Social Care Centre, indicating that the respondent might be being manipulative about the alleged problematic mental health of the applicant. It proposed that a medical institution examine the applicant and give an opinion on both parties’ capacity to exercise parental rights and responsibilities. 55. On 9 January 2007 the applicant informed the court that she had not been and would not be going to Belgrade to see her daughter as she was afraid of the respondent’s alleged threats and promises to “send her to bedlam”. 56. It appears from a letter from the Palilula Social Care Centre dated 9 April 2008 that the applicant had not up to that point attended any of the scheduled meetings with her daughter in Belgrade. 57. On 7 May 2007 the Municipal Court granted interim custody in respect of M.J. to the respondent, while the interim access order of 11 December 2006 remained in force as regards the applicant’s contact with her daughter. 58. On 18 June 2007 the Palilula Social Care Centre recommended that custody be granted to the respondent, while the applicant’s access rights were to be limited to one hour every Friday, at the Palilula Social Care Centre. The access ruling was subject to change and extension once the emotional and caring links between the applicant and her daughter had been restored. The Centre’s experts pointed out that the applicant had not contacted them in order to be able to see M.J., and offered professional assistance to facilitate contact between the mother and child, as well as with the respondent in order to motivate M.J. to maintain contact with the applicant. They noted that the respondent had inquired about the applicant’s interest in seeing M.J and had been allowing regular visits to M.J. by her older stepbrother (the applicant’s son). 59. On 18 and 19 September 2007 the applicant contacted both social care centres, stating that the respondent had not been allowing her any contact with M.J., even indirectly by phone. She requested both centres to initiate proceedings for deprivation of the respondent’s parental rights. 60. On 31 December 2007 the applicant informed the Palilula Social Care Centre that she had remarried and changed her surname. When the Centre asked her to attend the scheduled meetings with M.J., she said she did not have enough money to travel to Belgrade and was afraid of the respondent. 61. Despite the fact that the interim access order of 15 June 2006 was no longer valid, the applicant requested its enforcement in six written pleadings to the Fourth Municipal Court in Belgrade between September 2007 and January 2008. On 18 January 2008 this court issued an enforcement order in this respect. However, that court subsequently, following the respondent’s objection, suspended the enforcement proceedings. 62. At the hearing on 1 October 2008, the applicant stressed that she had not seen her daughter since 7 July 2006 and urged the Municipal Court to change the location of their scheduled meetings to the applicant’s place of residence. She repeated that she did not have enough money to travel to Belgrade each week to see her daughter. When asked by the court whether she wished to have a meeting with her daughter that same day, the applicant stated that she was afraid of the respondent, as well as of her daughter’s reaction on seeing her. 63. According to the report of the Palilula Social Care Centre dated 16 August 2010, on 6 May 2009 the applicant had requested the Palilula Social Care Centre to organise a meeting with M.J. for the first time in accordance with the second interim access order of 11 December 2006. Despite the Centre’s warning about the need to take appropriate steps to prepare M.J. for the forthcoming visits after a lengthy absence of care and contact between them, the applicant allegedly insisted on having contact with M.J. starting from 8 May. 64. It would appear that since 8 May 2009 the applicant has been meeting with M.J. regularly. However, the Social Care Centre experts reported that the applicant was not really aware that a mother’s absence could have a profound impact on her daughter and could alienate her daughter’s affection towards her. While she insisted on emotional reciprocation from her daughter, the contact was a significant source of stress for the child, who cried, hid behind her father, persistently avoided to look at her mother, refused the applicant’s gifts and asserted that she had been beaten by her. Nevertheless, the applicant systematically accused the respondent of abusing his position as the parent with interim custody and of inculcating M.J.’s attitude towards her. 65. The Centre also reported a severely dysfunctional parental relationship and an ambivalent approach on the part of the respondent to the importance of M.J.’s contact with her mother. In order to improve the parental and parent-child relationships, on 10 May 2010 the Centre adopted of its own motion a decision on corrective monitoring of the parties’ exercise of parental rights by the Marriage and Family Counselling Office, for a minimum of six months. The Office was supposed to work with the parents to help them acquire a better understanding of their parental rights and responsibilities, as well as of the needs of their daughter. After they had undergone this therapy, the Centre was to evaluate changes in their attitudes and approaches in exercising parental roles, as well as to assess the need for further measures for the protection of M.J.’s rights. The respondent was also supposed to bring M.J. regularly to the Counselling Office, which would work on improving her motivation in order to try to salvage her contact with the applicant. 66. On 4 December 2006 the applicant instituted proceedings against P.J., requesting that he be deprived of his parental rights (“roditeljsko pravo”) because of his behaviour in respect of their daughter. It would appear that P.J. lodged the same claim against the applicant and that the competent court eventually joined the two proceedings. 67. In the course of those proceedings, on 11 September 2007 the applicant sought an interim injunction against domestic violence. She claimed that P.J. had threatened her, which is why she was afraid to attend the scheduled meetings with her daughter. 68. On 3 December 2007 the court granted her request and issued an interim measure prohibiting P.J. from approaching or further disturbing the applicant. 69. However, on 6 November 2008 the District Court quashed this interim measure on appeal and returned the case for reconsideration. 70. On 2 February 2009 the court decided to separate the proceedings for protection against domestic violence from those for deprivation of parental rights. 71. As regards the proceedings for protection against domestic violence, on 21 October 2009 the First Municipal Court in Belgrade granted an injunction against domestic violence, i. e. “insulting or any other insolent, unscrupulous or malevolent behaviour” as defined in the Article 197 § 6 of the Family Law. In particular, it banned the respondent from disturbing the applicant for one year, as well as from coming within 500 metres of her and her place of residence, other than when necessary to allow contact between the applicant and the child. 72. On 13 May 2010 the Court of Appeal upheld the former part of this decision, quashed the latter due to the lack of valid and convincing reasons and remitted it for re-examination. 73. It would appear that these proceedings are still pending. 74. In 1993 the applicant had been diagnosed with interstitial lung disease, having subsequently become depressive and occasionally in need of psychiatric treatment. 75. Article 110 states that a competent authority may exempt a party to administrative proceedings from paying the costs of the proceedings, including witnesses’ and experts’ costs and expenses, if it finds that paying those expenses would affect the individual and his/her family’s well-being and ability to maintain themselves. 76. Other relevant provisions are set out in the cases of V.A.M. v. Serbia (no. 39177/05, §§ 56-59 and 65-75, 13 March 2007), and Tomić v. Serbia (no. 25959/06, §§ 55-62 and 68-71, 26 June 2007).