CASE OF MITROVA AND SAVIK v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
Armen Harutyunyan;Guido Raimondi;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano
6. The applicants were born in 1983 and 2007 respectively and live in Gevgelija, in the former Yugoslav Republic of Macedonia. 7. On 15 October 2006 the first applicant married Mr V. Savik (“the father”). On 11 February 2007 she gave birth to their daughter, the second applicant. 8. On 10 May 2007 the Gevgelija Court of First Instance (“the first-instance court”) dissolved the marriage and gave the first applicant custody of the second applicant. 9. On 31 May 2007, on an application by the father, the Gevgelija Social Welfare Centre (“the Centre”) made an order specifying that he could see the second applicant at the first applicant’s house every Friday for two hours. The order was made after the Centre had examined the situation in both families and had discussed the matter with the parents. Тhe order was served on the first applicant on 2 June 2007. 10. The first applicant’s refusal to allow the father to have contact with the second applicant at four scheduled meetings between 8 and 29 June 2007 led to her being convicted pursuant to Article 198 of the Criminal Code (judgment K.br.133/07 of 2 July 2007). The court, noting the child’s young age, dismissed the first applicant’s defence (that she had not been consulted and notified about the Centre’s order of 31 May 2007; that the child had not been developing properly at the time; and that the father had not shown any interest for the child) and sentenced her to six months’ imprisonment, suspended for one year. In determining the penalty, the court referred to gravity of the crime and the manner in which it had been committed, as aggravating circumstances, as well as to the first applicant’s age, her admitting to the crime, the fact that she had no previous criminal record, her good behaviour and her family situation, as mitigating factors. According to the court, the suspended prison term would deter her from reoffending and help crime prevention as a whole. The judgment was upheld on appeal on 27 December 2007. 11. A further refusal by the first applicant to comply with the Centre’s order of 31 May 2007 by not allowing the father to have contact with the second applicant between July and October 2007 resulted in her being convicted a second time and being given a further suspended prison sentence (eight months, suspended for two years, judgment K.br.229/07 of 17 December 2007, upheld on appeal on 14 May 2008). The first applicant was also ordered to allow the father to see the child within 30 days after the judgment would become final. In case of non-compliance, the court specified that the suspension would be revoked and the sentence would be enforced. The court dismissed the first applicant’s defence that the father had failed to observe the scheduled meeting times, that he had turned up instead under the influence of alcohol and drugs and that he had harassed her, her parents and the child. In determining the penalty, the court referred, inter alia, to the first applicant’s age and her standard of living, as mitigating factors. Both judgments (K.br.133/07 and K.br.229/07) were delivered after the court had heard oral evidence from the first applicant, the father and a representative of the Centre. They were given by Judge I.S. of the Gevgelija Court of First Instance. 12. In the meantime, on 21 November 2007, the Centre set a new venue and time for the meetings between the father and the second applicant. It was decided to increase the time to five hours every Friday and for the meetings to take place at the Centre rather than in the first applicant’s house. According to the order, the father’s right to have contact with the second applicant, as specified in the order of 31 May 2007, had been considerably affected by the strained relationship between him and the first applicant. The new arrangement required the first applicant to take the second applicant to the Centre at a specified time each week. The Centre stated, inter alia, that: “... According to the established methodology of work, all efforts have been made for communication to be established between both parents, between the competent body and [the first applicant] and the parents have been alerted to all legal consequences should they fail to enforce their statutory duties as parents that can violate the rights of the minor child. After actions have been taken and facts have been established ... on a meeting held on 12 November 2007 the expert team found that no communication could yet be established with [the first applicant] and the parents could not agree on [the second applicant’s] right to have regular contacts and meetings with the non-cohabitant parent. Such an attitude infringes the right of the minor S. Therefore, given [the second applicant’s] age, the need for an emotional bond to be created between the minor child and the non-cohabitant parent, the need to protect her rights, as well (the need) to eliminate any possibility for manipulation that would prevent the expert team to supervise the enforcement of the contact arrangements between the minor child and the father, (the Centre) decided the father’s visiting rights in respect of the minor S.S...”. 13. The first applicant failed to appear at three scheduled meetings in November and December 2007. On two occasions in January and March 2008, the father did not see his daughter because she was ill. 14. On 29 April 2008, after the Centre had obtained the views of the first applicant and the father and had examined the file, it partially accepted the father’s request for longer and more frequent meetings and issued an order (no. 12-07/33), specifying that his meetings with the second applicant were to take place in the Centre every Monday from 9 a.m. to 4 p.m. The order further stated that: “... The expert team (notes that) the minor S. is still breast-fed, but (since) it is necessary to further strengthen the [child’s] emotional bond with the non-cohabitant parent and to protect the right of [the second applicant] to have contact with the father, it considers that the visiting rights should remain once a week, but longer, which would enable that (the child) stays overnight after she would no longer be breast-fed.” 15. The Centre further set two dates on which the father could meet the second applicant, to replace the meetings missed in January and March 2008 (see paragraph 13 above). The first applicant was ordered to comply with the new contact arrangements or risk criminal proceedings being instituted against her and the father being given temporary custody of the second applicant. 16. As the first applicant failed to comply in full with the order of 29 April 2008, on 28 May 2008 the Centre allowed the order of 29 April 2008 to be enforced by means of a separate order issued under section 14 of the Family Act (see paragraph 46 below). It established that the first applicant had failed to take the child to four of the scheduled meetings, despite being warned of the possible consequences should she fail to comply. The order further stated that: “... Such a warning did not, for unknown reasons, enable the minor S.S. to enjoy the statutory right to contact her father and the mother not only ignores the order, but also engages in unreasonable and constant correspondence to describe incomprehensible situations, and makes accusations in a confused manner about matters which are the subject of other proceedings. In view of the above and by virtue of law, the expert team ... decided unanimously that there are statutory grounds for forceful enforcement of the executive order of 29 April 2008 ... and for proceedings to be instituted regarding custody of the child and criminal liability of [the first applicant]. In view of the above and the fact that (the case concerns) the forceful prevention by [the first applicant] of contacts between minor S.S. and her father V.S. ...the expert team considers that the forceful enforcement (of the order of 29 April 2008) as specified in (this decision) is in the absolute interest of the minor [second applicant] ...” 17. The first applicant was ordered to take the second applicant to the Centre on 2 June 2008 or risk being prosecuted for child abduction under Article 198 of the Criminal Code. The order stated that an appeal would not suspend enforcement of the order (правото на жалба не го одлага извршувањето). The first applicant confirmed that she had received the enforcement order of 28 May 2008. She appealed against that order, arguing that she had never been served with the Centre’s order of 29 April 2008. Furthermore, she argued that the delivery that she had received by post on 2 May 2008 had not contained the order of 29 April 2008. No decision on the appeal was made. 18. On 17 June 2008 the first applicant asked the Centre to review the level of contact the father should have with the child. On 24 December 2008, the Centre made an order setting out the level of contact the father should have with the child. It appears that the first applicant complied with this order. 19. On an unspecified date, the father requested that the Centre review the level of contact with the second applicant. The first applicant failed to appear at the Centre to discuss the father’s request, notwithstanding that the Centre invited her to do so at two occasions. On 3 June 2009 the Centre made an order specifying that the father should meet his daughter every Monday to Tuesday (from 9 a.m. to 9 a.m.). The increased amount of contact was justified by the child’s “specific age and stage of development ... when a stable relationship (with the father), as well as an emotional bond between them, were necessary for [the child’s] proper mental and physical development”. 20. Subsequent to the two judgments against her of 2 July and 17 December 2007 (see paragraphs 10 and 11 above), on 19 June 2008, the public prosecutor brought criminal charges against the first applicant. She was accused of failing to allow the meeting scheduled for 2 June 2008 to take place, as required by the Centre’s orders of 29 April and 28 May 2008. In submissions of 30 June 2008, the first applicant denied the charge, arguing that she had never been served with the Centre’s order of 29 April 2008. In this connection, she maintained that she had received another order from the Centre dated 30 April 2008. She also expressed concerns about the fairness of the upcoming trial, given her Bulgarian nationality. She further applied for the removal of Judge I.S., should he be assigned to decide the case. On 1 July 2008 her application was dismissed by “a judge replacing the president” of the first-instance court. In submissions of 7 July 2008 to the first-instance court, the first applicant repeated her arguments and explained that she had sought Judge I.S.’s removal because he had convicted her in the previous criminal cases brought against her. She also maintained that he had allegedly solicited sexual favours from her. Her criminal complaint on the latter subject had allegedly been rejected by the same public prosecutor who had indicted her in the impugned proceedings. She also alleged that the judge who had replaced the president of the first-instance court, and who had dismissed her application for the removal of Judge I.S., was a relative of hers who, in discussions with her, had expressed disagreement with a decision she had made to study in Bulgaria. 21. The first applicant decided not to testify at the hearing held on 10 July 2008. The first-instance court heard the father, who stated that for reasons unknown to him he had not seen his daughter at any of the scheduled meetings since 29 April 2008. A representative of the Centre stated that the first applicant had not complied with its orders of 29 April and 28 May 2008, notwithstanding the fact that she had been informed of the consequences of non-compliance. She confirmed that the first applicant had been served with all the relevant orders the Centre had made. In a judgment of the same date the first-instance court, presided over by Judge I.S., found the first applicant guilty and sentenced her to three months in prison. In doing so, it relied on the oral and documentary evidence admitted at the trial, including the Centre’s orders of 29 April and 28 May 2008, which had provided explicitly for the need of the child to “strengthen the emotional bond with the [father] and to protect [her] right to have contact with [him]” as being “in [the child’s] absolute interest”. The court established that the first applicant had not complied with these orders notwithstanding that she had been alerted about the consequences for non-compliance. She had not allowed the father to see his daughter on several occasions before and after 2 June 2008, the date specified in the enforcement order of 28 May 2008. The court further stated that it could not assess the first applicant’s defence due to the fact that she had remained silent at the trial and provided no arguments regarding the incident. Lastly, it stated that: “In assessing the severity of the sentence, the court took into consideration all relevant circumstances (aggravating and mitigating factors) ... in particular, the gravity of the charges and concrete consequences, the manner in which the crime had been committed, the fact that [the first applicant] had already been convicted of the same offence on 2 July [judgment K.br.133/07] and 17 December 2007 [judgment K.br.229/07] and [sentenced to an alternative penalty-suspended prison term]. The court found no alleviating circumstances related to the [first applicant]. The above stated leads to a conclusion that the suspended prison sentences issued against the [first applicant] had no impact on her, [given that the first applicant] continues committing the same offence. Accordingly, it decided to sentence her to a prison term finding that it would ... deter her from reoffending in the future and would [help crime prevention as a whole]. 22. The first applicant appealed. On 3 December 2008 the Skopje Court of Appeal dismissed the appeal and upheld the lower court’s judgment. It held that the first-instance court had correctly established that she had not complied with the Centre’s orders of 29 April and 28 May 2008. Lastly, it endorsed the reasons of the first-instance court regarding her custodial sentence. 23. On 18 February 2009 the first applicant applied to the Supreme Court for an extraordinary review of the final judgment, reiterating the arguments she had raised in her appeal. On 5 May 2009 the Supreme Court dismissed her application, finding that the facts, as based on the evidence admitted at the trial, had been correctly established by the lower courts. In this connection, the lower courts had correctly applied the procedural rules and based their judgments on evidence admitted at the trial. Lastly, the court endorsed the reasons given by the lower courts. 24. The first applicant was ordered to present herself at prison on 10 March 2009. On 13 March 2009 the first-instance court postponed the execution of the sentence because the second applicant was ill and a new date was set for 14 June 2009. The first applicant started serving her sentence on 30 July 2009, and was released on 8 October 2009. 25. On 9 July 2009 the Centre gave the father custody of the second applicant for fifteen days. 26. On 30 July 2009, the date when the first applicant started serving the sentence, the Centre gave the father, of its own motion and on the basis of section 87(6) of the Family Act (see paragraph 54 below), temporary custody of the second applicant pending the conclusion of custody proceedings which he had initiated in August 2008 (see paragraph 33 below). According to the order, the first applicant had not allowed the second applicant to have any contact with the father at any of the scheduled meetings since 15 June 2009. After that date, the applicants had gone into hiding, despite the second applicant’s poor health, which required continuous medical supervision. The order further referred to the first applicant’s incarceration. The order did not provide for any contact rights for the first applicant in respect of the second applicant. 27. On 6 October 2009 the first applicant sought permission from the Centre to see the second applicant. According to the Government, the Centre invited her to an interview upon her release from prison. However, it appears that she did not receive the invitation and, accordingly, failed to appear. 28. According to the first applicant, on 23 November 2009 a lawyer acting on her behalf contacted the Centre to find out the whereabouts of her daughter and it was allegedly on that occasion that she was given the Centre’s order of 30 July 2009 (see paragraph 26 above). The lawyer allegedly requested the Centre to decide the contact arrangements between the first and second applicants, which the Centre refused to do, as under the law such orders were only made after both parents had been interviewed by the Centre’s welfare officers. 29. On 4 January 2010 the first applicant again requested that the Centre specify her contact rights. In reply, the Centre twice asked the first applicant to specify a time and place for meeting her daughter. The first applicant refused to be served with these notifications. 30. According to the Government, on 29 January 2010 the first applicant applied to the first-instance court for a decision on the amount of contact she could have with her daughter. Since she had specified a time and place for her contact with the daughter, the Centre, in an order dated 10 February 2010, specified her contact rights, which were to be every Friday from 10 a.m. to 3 p.m. 31. On 19 February 2010 the first applicant met her daughter. 32. On an application lodged by the first applicant, on 5 March 2010, the order of 10 February 2010 was replaced by a new order by the Centre, dated 17 March 2010, according to which the first applicant was allowed to stay with the second applicant every second weekend in the month, from Friday (3 p.m.) to Monday (9 a.m.). 33. On 26 August 2008 the father initiated custody proceedings, seeking to have the first-instance court amend its judgment of 10 May 2007 (see paragraph 8 above) and give him custody of the second applicant. In a judgment of 11 March 2010, the court granted his application and ordered the first applicant to hand the child over to the father. The first applicant would be allowed to maintain personal and direct contact with her. On 20 May 2010, however, the judgment was set aside by the Skopje Court of Appeal, which remitted the case for a fresh examination. The Court of Appeal ordered the first-instance court to reassess the available evidence and provide convincing reasons why the first applicant was unfit to enjoy custody of the child. 34. On 15 October 2010 the first-instance court dismissed the father’s application after hearing evidence from him and the first applicant and admitting expert opinions, of 25 August 2009 and 5 February 2010, which confirmed that both parents were mentally fit and had the required capacity to care for the child. It also admitted a report by the Centre, dated 24 September 2009, in which welfare officers confirmed that the first applicant had the necessary capacity to provide basic care for the child, but that she had continuously prevented her from seeing the father. They had not applied to a court to have her parental rights restricted since there were other ways to protect the interests and rights of the child. They further argued that the first applicant’s behaviour had been inappropriate: she had used insulting language towards everyone involved in the case, and had portrayed herself, without any justification, as a victim of the system. According to the experts, this was not a suitable environment for the second applicant. On the basis of all the available information, the Centre’s welfare officers suggested that it would be in the child’s best interests for the father to be given custody. In that way the child could maintain a relationship with both parents, which she had been unable to do when the first applicant had had custody. 35. Referring to the aforementioned facts, (see paragraphs 7-32 above), the court found that the first applicant had, for a protracted period of time, prevented the father from having contact with his daughter at the scheduled meetings. She had not been cooperative or shown any insight in her dealings with the State authorities, unlike the father, whose behaviour had been of no concern. Her past behaviour had been the result of her lack of trust in the authorities and her strained relationship with the father, but this had not affected her ability to care for the child. In this connection, the court stated: “The court took into consideration the [Centre’s welfare officers’] opinion, but it has found that it would be in the best interests of the child, given the child’s (young) age and current stage of her development, for her to remain in the custody of the mother. The father may maintain a personal relationship and direct contact with the child. The court also took into consideration the fact that, as a consequence of these proceedings, the parties have understood the need for mutual communication in order to ensure the rights of the child. They ... have reached an agreement regarding their right to have contact with the child, which reduces the need for the competent body to determine those relationships ... In this connection, there is always the possibility that the parents reach their own agreement, at any given time, regarding custody of the child, as befits her interests.” 36. Lastly, the court concluded that the first applicant’s nationality was of no relevance to the case. On 3 February 2011 the Skopje Court of Appeal upheld the judgment. 37. After the judgment became final, on 7 March 2011 the Centre specified the contact rights of the father and allowed him to meet his daughter on the second and fourth weekend of the month, between Friday (3 p.m.) and Monday (9 a.m.). 38. On 1 March 2012 the Supreme Court upheld an appeal on points of law (ревизија) by the father, finding that there had been a “wrongful application of the substantive law given the established facts” (погрешна примена на материјалното право, ако се има предвид утврдената фактичка состојба). The court overturned the lower courts’ judgments and gave custody of the second applicant to the father. The first applicant was further ordered to pay maintenance of 2,000 Macedonian denars (approximately 30 euros) per month. Referring to the first applicant’s non-compliance with the Centre’s orders of 31 May and 21 November 2007, the fact that she had been convicted on three occasions, as well as to the Centre’s expert opinion, as “the competent and responsible body” (надлежен и меродавен орган), the court held that there were grounds to amend the first-instance court’s order of 10 May 2007 regarding custody of the child. Relying on sections 8, 45, 47, 76 and 80 of the Family Act (see paragraphs 45-52 below) the Supreme Court stated, inter alia: “This court considers that after [the first-instance court’s] judgment of 10 May 2007, which granted [the first applicant] custody of [the second applicant], the child was deprived of the fundamental right to receive parental care from both parents because of the first applicant alone. That is the fundamental, most important and decisive reason for amending the judgment [of 10 May 2007] (and) granting the [father] custody of the minor [the second applicant]. The court notes that the lower courts disregarded the change in circumstances and the Centre’s expert opinion, without any legally justified and reasonable grounds. This court considers, contrary to the findings of the lower courts, that ... it is in the best interests of the minor, S., with a view to her enjoying the company of both parents, and ensuring her development, that [the father] should be given custody. His past behaviour has shown that he is a constructive and cooperative parent whose main concern is the interests of the minor, S. This court further considers that the reason why the lower courts dismissed the appellant’s claim to have custody of [the second applicant], namely that she was three years and eight months old and that at that age she needed to stay with the mother, with whom she was biologically connected, cannot be regarded as the only relevant legal ground (единствено правно решавачка причина). The child’s age is an important ground, but it is not the only [element] which is decisive for the court. A court order determining which of the parents of a minor child should be given custody is dependent on other factors, such as the parents’ personalities; their views regarding their rights and duties in respect of their child; the rights and interests of the child, including, certainly, [the child’s] right to both parents; and the need for the child to have the best environment for [his or her] healthy mental and physical development. In the present case, and having regard to all the circumstances, not only the [second applicant’s] age, a final conclusion can be drawn that it is in the [child’s] interests, and best for her mental and physical development, that [the father] should have custody rights.” 39. The applicant was served with the judgment on 18 June 2012. 40. On an application by the first applicant, on 12 July 2012 the Centre specified how much contact she could have with her daughter. According to the order, which was based on the explicit consent of both parents, the first applicant was to live with the second applicant between Monday and Friday. Both parents were allowed a ten-day summer holiday and a five-day winter holiday with her. The order further specified who would stay with the child on religious and family holidays. 41. On an unspecified date, the first applicant applied to the first-instance court for custody of the second applicant. The first-instance court accepted the application and granted custody to the first applicant. On 13 March 2014 that judgment was set aside. The custody proceedings are allegedly still pending before the first-instance court. 42. While the custody proceedings were pending, on 10 June 2013 the father applied to the Centre to change the living arrangements to allow him to live permanently with the second applicant. The mother would have the child two weekends a month. By a decision of 3 July 2013, the Centre suspended the proceedings relating to that application until the custody proceedings launched by the first applicant had been completed. 43. The parties confirmed that the Centre’s order of 12 July 2012 was being complied with by all involved.