OREL v. CROATIA 
Inadmissible
Julia Laffranque;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković
1. The applicants, Ms Suzana Orel (“the first applicant”), Mr Mislav Orel (“the second applicant”) and Mr Silvio Orel (“the third applicant”) are Croatian nationals who were born in 1966, 1995 and 1997 respectively and live in Zagreb. They were represented before the Court, first by Ms L. Kušan, an advocate practising in Ivanić-Grad, and subsequently by Ms N. Owens from the law firm Owens and Houška, an advocate practising in Zagreb. 2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The first applicant married a certain Mr H.A. in 1993. The second and third applicants were born of the marriage. H.A. and the applicants lived in the first applicant’s flat in Zagreb until 2002. 5. On 3 November 2002 H.A. went to work and never returned home. After a couple of days, the first applicant found out that he had moved to the United States of America. 6. By a judgment of 28 January 2003 the Zagreb Municipal Court (Općinski sud u Zagrebu) granted the divorce of the first applicant from H.A., who was ordered to pay 400 United States dollars (USD) of child support a month for the maintenance of the second and third applicants (hereafter “the child support” or “the maintenance”). The judgment became final and enforceable on 17 February 2003. 7. In the period between January 2003 and 31 May 2006 H.A. paid the child support irregularly. In that period, he paid a total of USD 7,600. He stopped paying the maintenance in June 2006. He does not own any property in Croatia. 8. On 14 October 2004 the first applicant lodged a criminal complaint against H.A. with the Zagreb Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Zagrebu), accusing him of non-compliance with maintenance obligations (povreda dužnosti uzdržavanja), a criminal offence defined in Article 209 of the Criminal Code (see paragraph 38 below). 9. On 3 June 2005 the State Attorney’s Office indicted H.A., thereby instituting criminal proceedings against him before the Zagreb Municipal Court. 10. On 21 October 2005 the State Attorney’s Office dropped the charges, whereupon, three days later, the Zagreb Municipal Court discontinued the proceedings. 11. On 30 April 2008 the first applicant lodged another criminal complaint against H.A. with the same State Attorney’s Office, on the same grounds as before. 12. On 28 August 2008 the State Attorney’s Office indicted H.A., thereby instituting criminal proceedings against him before the Zagreb Municipal Criminal Court (Općinski kazneni sud u Zagrebu). The court conducted a trial in absentia. 13. By a judgment of 27 September 2010 the court found H.A. guilty as charged. It imposed a suspended sentence of seventeen months’ imprisonment with a four-year probation period, with the additional condition of regular payment of future child support instalments as they became due, and payment of USD 25,400 of maintenance arrears to the applicants. 14. Upon an appeal by the State Attorney, on 28 September 2011 the Zagreb County Court (Županijski sud u Zagrebu) amended the sentence by setting a two-year time-limit for the payment of maintenance arrears. 15. On 4 October 2011 the first applicant informed the Zagreb Municipal Criminal Court that H.A. had not been paying the child support instalments as they were becoming due, nor had he paid the arrears. 16. For those reasons, on 6 February 2012 she applied for revocation of the suspension of the sentence (prijedlog za opoziv uvjetne osude) to the same court. 17. At a hearing held on 16 May 2012 the first applicant informed the court that H.A.’s address in Glendale (Arizona) mentioned in the judgment of 27 September 2010 (see paragraph 13 above) was not correct and that his address was difficult to establish. She provided the court however with the address of his employer and his mother. 18. The notice of the next hearing, scheduled for 10 September 2012, was sent via regular post, more specifically by registered mail, to the address of H.A.’s employer in the United States. 19. At the hearing held on 10 September 2012 the court established that the service was not valid because the notice, which had been returned by H.A.’s employer, had not been signed by H.A. 20. On the same day the court asked the Croatian embassy in the United States to supply H.A.’s address. 21. On 9 October 2012 the embassy replied that, like the court, it was only aware of H.A.’s old address in Glendale (Arizona) and that it had been unable to identify his new address. 22. The court then scheduled the next hearing for 15 July 2013, and on 7 November 2012 asked the Ministry of Justice to request, by means of letters rogatory, the relevant United States authorities to serve notice of the hearing on H.A. 23. On 8 March 2013 the Ministry of Justice forwarded to the court a letter from the Ministry of Foreign and European Affairs, in which it was stated that the Croatian embassy in the United States had no funds in its budget for service abroad and thus could not pay the USD 90 requested by the United States’ authorities for personal service. 24. The hearing scheduled for 15 July 2013 was adjourned. Before the hearing the law clerk (sudski savjetnik) assigned to the case informed the first applicant that the summons could not be served on H.A. by letters rogatory because the Croatian embassy in the United States did not have funds to pay for the service (see the preceding paragraph). According to the applicant the law clerk also advised her to lodge another criminal complaint against H.A. for another count of the same offence (which would eventually result in his unconditional conviction). The next hearing was scheduled for 21 March 2014. 25. At the hearing held on 21 March 2014 the judge hearing the case informed the first applicant that the summons had to be served on a party living abroad via diplomatic service and that service via regular post by registered mail at his employer’s address was not valid. The first applicant replied that the message she had received from H.A. on 10 January 2014 on her Facebook page suggested that he had received the summons sent by regular post. 26. It would appear that these proceedings are still pending. 27. Meanwhile, by a decision of 9 October 2013 the president of the Zagreb Municipal Criminal Court dismissed a request of 28 August 2013 by the applicants for the protection of the right to a hearing within a reasonable time, finding no violation of that right. He held that the length of the proceedings complained of was primarily attributable to objective factors, namely the difficulties associated with service of process on H.A., who lived in the United States. On 9 December 2013 the president of the Zagreb County Court dismissed an appeal by the applicants and upheld the first-instance decision. 28. In 2009 the first applicant, relying on section 352 of the Family Act, instituted administrative proceedings before the Zagreb Social Welfare Centre (Centar za socijalnu skrb Zagreb – Ured Trešnjevka, hereafter “the local social welfare centre”) seeking substitute maintenance for the second and third applicants. 29. By a decision of 5 March 2009 the local social welfare centre granted the first applicant’s request and awarded her substitute maintenance in the monthly amount of 532.51 Croatian kunas (HRK) for the second applicant and HRK 484.20 for the third applicant. The decision specified that these amounts would be paid in the period from 22 January 2009 until H.A. started paying the child support, and until 21 January 2012 at the latest. 30. On 4 December 2006 the first applicant wrote to the Croatian consulate in Los Angeles asking for assistance in instituting relevant proceedings in the United States with a view to recovering child support payments. In her letter she mentioned that she had contacted an attorney in the United States who, given her indigence, had asked for “too much money” for his services without any guarantees that the proceedings would be successful. It would appear that she received no reply. 31. On 11 May 2012 the applicant sent an email to the Croatian embassy in Washington D.C. asking for assistance in identifying H.A.’s address. 32. The embassy replied on the same day, informing her first that in response to her earlier request (see paragraph 30 above) it had contacted the relevant United States authorities, who had in turn informed it that foreign court judgments concerning maintenance could be recognised only if there was a bilateral agreement between the United States and the country concerned. No such agreement existed between the United States and Croatia (see paragraphs 42-45 below). 33. The embassy also informed the applicant that it had no database of contact details of Croatian nationals living in the United States. Moreover, each time it had asked the United States authorities to provide such information in the context of requests for international legal assistance, those authorities had informed it that they had no such data either, and that in any event they would not be able to disclose them because of the personal data protection laws. 34. The embassy further informed the first applicant that the results of its web search indicated that a person with the same last name as H.A. lived in Glendale (Arizona), and provided the address. It also suggested that she ask the court in the above proceedings for revocation of the suspended sentence to try serving the summons at that address. Lastly, the embassy gave the applicant the contact details of a private investigator who could assist her in identifying H.A.’s address. 35. The original text of section 352 of the Family Act (Obiteljski zakon, Official Gazette no. 163/03), which was in force between 22 July 2003 and 31 December 2007, read as follows: “If a parent who is bound to contribute to the support of his or her child by a final judicial decision or settlement concluded before the social welfare centre does not comply with his or her obligations for more than three months, the social welfare centre shall, at the initiative of the other parent or of its own motion, if it considers that this could endanger the child’s standard of living, take measures to provide funds for substitute child support until the parent bound to [do so] again starts to comply with his or her obligation.” 36. Section 352 of the Family Act was amended by the 2007 Amendments to the Family Act (Zakon o izmjenama i dopunama Obiteljskog zakona, Official Gazette no. 107/07 – the 2007 Amendments), which entered into force on 1 January 2008. The text of section 352, as amended by the 2007 Amendments, read as follows: “(1) If a parent who is bound to contribute to the support of his or her child by a final judicial decision, the provisional measure ... or settlement concluded before a court or a social welfare centre, does not comply with his or her obligations for more than six consecutive months, or does not pay at least six monthly instalments within a period of seven months, the social welfare centre shall, at the initiative of the other parent or of its own motion, issue a decision on substitute child support and in accordance with it shall pay child support until the parent bound to [do so] again starts to comply with his or her obligation, but for no longer than three years. (2) The right to substitute child support shall be recognised from the date the application [to that effect] was lodged [by the other parent], or from the date [the social welfare centre] instituted the proceedings of its own motion. (3) The substitute child support shall be established at 50% of the amount of [the minimal child support] specified in section 232(4) of this Act [which sets it at 17%, 20% or 22% of the minimum wage, depending on the age of the child]. (4) An appeal against a decision on substitute child support does not suspend its enforcement.” 37. Section 61 of the 2007 Amendments provided as follows: “(1) If before the entry into force of [these Amendments] a first-instance decision has been adopted in proceedings concerning maintenance by the court or the social welfare centre the [earlier version of] the Family Act, shall [continue] to apply to the subsequent [stages of] the proceedings. (2) If after the entry into force of [these Amendments] the first-instance decision referred to in paragraph 1 of this section was quashed or set aside [these Amendments] shall apply to the subsequent proceedings.” 38. The relevant provision of the Criminal Code (Kazneni zakon, Official Gazette no. 110/97 with subsequent amendments), which was in force from 1 January 1998 to 31 December 2012, reads as follows: “Regardless of the grounds for revocation, a suspended sentence may be revoked no later than one year after the expiry of the probation period.” “(1) Anyone who, by avoiding employment or by changing jobs, domicile or place of residence, by alienation of assets, or otherwise, avoids providing maintenance for a person he or she is bound to support by virtue of an enforceable decision or in-court settlement, or who refuses to comply with such an obligation, shall be punished by a fine or imprisonment not exceeding one year. (2) If the obligation referred to in paragraph 1 of this section concerns child support, the perpetrator shall be punished by imprisonment of from three months to three years. (3) When imposing a suspended sentence, the court may set as a condition [of the sentence being suspended], that the perpetrator pays maintenance arrears and in the future regularly complies with maintenance obligations.” 39. The relevant provision of the Criminal Procedure Act (Zakon o kaznenom postupku, Official Gazette no. 152/08 with subsequent amendments), which has been in force since 1 September 2011, reads as follows: “(1) Where a suspended sentence stipulates that a sentence will be executed if the convicted person does not return the pecuniary gain, pay the compensation for the damage, or does not meet other obligations, and the convicted person has failed to comply with those obligations within the set time-limit, the first-instance court shall conduct proceedings for revocation of the suspended sentence at the request of an authorised prosecutor or the injured party. (2) The judge assigned for such a purpose shall examine the convicted person, if available, and take the steps necessary to establish the facts and collect evidence relevant to the decision. (3) Thereafter, the presiding judge shall schedule a session of the panel of which he or she shall inform the prosecutor, the convicted person and the injured party. If they have been duly notified, failure of the parties, including the injured party, to attend shall not prevent the panel from holding the session. (4) If the court finds that the convicted person has not complied with the obligation imposed upon him or her by the judgment, it shall issue a judgment revoking the suspended sentence and ordering the execution of the imposed sentence, or it shall set a new time-limit for compliance with the obligation, or replace that obligation with another or relieve the convicted person of the obligation. If the court finds that there are no grounds to take any of these decisions, it shall discontinue the proceedings for revocation of a suspended sentence by [means of] a decision [to that effect]. (5) If it is subsequently established that the convicted person committed a criminal offence during the probation period for which he or she was sentenced to a sentence for which the suspended sentence should or could have been revoked under the Criminal Code, and the court which sentenced omitted to decide on that, the first-instance court which imposed the suspended sentence shall issue a judgment revoking the suspended sentence and ordering execution of the imposed sentence. If the court finds that there are no grounds for revocation of a suspended sentence, it shall discontinue those proceedings by [means of] a decision [to that effect]. (6) ... (7) ...” 40. The relevant provisions of the Croatian Nationals’ Travel Documents Act (Zakon o putnim ispravama hrvatskih državljana, Official Gazette no. 77/99 with subsequent amendments), which has been in force since 1 January 2000, read as follows: “Applications for travel documents shall be refused in respect of those applicants in respect of whom there is a reasonable suspicion that they: 1. ..., 2. would avoid complying with [their] outstanding pecuniary obligations arising from marriage or parental responsibility, or with tax obligations or other statutory pecuniary obligations for which there is an enforcement title – at the request of the competent court. 3. ... “Travel documents shall be seized by the relevant authority, diplomatic mission or consular office on the grounds referred to in section 41(1) and (2) of this Act ... A decision on seizure of a travel document, referred to in paragraph 1 of this section, shall be delivered by the administrative authority in charge of the issuance of travel documents. An appeal against the decision referred to in paragraph 3 of this section shall not postpone its enforcement.” 41. Article 27 paragraph 4 of the United Nations Convention on the Rights of the Child of 2 September 1990, which Convention entered into force in respect of Croatia on 12 October 1992, read as follows: “4. States Parties shall take all appropriate measures to secure the recovery of maintenance for the child from the parents or other persons having financial responsibility for the child, both within the State Party and from abroad. In particular, where the person having financial responsibility for the child lives in a State different from that of the child, States Parties shall promote the accession to international agreements or the conclusion of such agreements, as well as the making of other appropriate arrangements.” 42. Croatia has, since 20 September 1993, been a party to the Convention on the Recovery Abroad of Maintenance of 1956, which is a United Nations treaty which allows individuals to enforce judicial decisions regarding child support and alimony extraterritorially. It can be used only if the person seeking maintenance and the person paying maintenance are both resident in States that have ratified that Convention. 43. Croatia is not a party to the Hague Convention concerning the recognition and enforcement of decisions relating to maintenance obligations towards children of 1958, or to the Hague Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations of 1973. 44. The United States of America is not a party to any of the above-mentioned conventions. 45. As a member State of the European Union Croatia is also bound by the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance of 2007, which entered into force on 1 January 2013, and to which the European Union acceded on 1 August 2014. The United States of America signed that Convention on 23 November 2007 but has not yet ratified it. 46. As a member State of the European Union Croatia is also bound by the Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations.