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V.A.M. v. SERBIA - 39177/05 [2007] ECHR 210 (13 March 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/210.html
Cite as:
[2007] ECHR 210
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SECOND
SECTION
CASE OF V.A.M. v. SERBIA
(Application
no. 39177/05)
JUDGMENT
STRASBOURG
13
March 2007
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of V.A.M. v. Serbia,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mrs F. Tulkens, President,
Mr A.B.
Baka,
Mr R. Türmen,
Mr M. Ugrekhelidze,
Mr V.
Zagrebelsky,
Ms D. Jočienė,
Mr D. Popović,
judges,
and Mrs F. Elens-Passos, Deputy Section
Registrar,
Having
deliberated in private on 20 February 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 39177/05) against the State
Union of Serbia and Montenegro, succeeded by Serbia on 3 June 2006
(see paragraph 76 below), lodged with the Court under Article 34 of
the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by, at that time, a citizen
of the State Union of Serbia and Montenegro, Ms V.A.M. (“the
applicant”), on 28 October 2005.
The
President of the Chamber acceded to the applicant's request not to
have her name disclosed and gave priority to her application in
accordance with Rules 47 § 3 and 41 of the Rules of Court,
respectively.
The
applicant was represented before the Court by the Lawyers' Committee
for Human Rights (YUCOM), a human rights organisation based in
Belgrade. The Government of the State Union of Serbia and Montenegro,
initially, and the Government of Serbia, subsequently, (“the
Government”) were represented by their Agent, Mr S. Carić.
On
27 February 2006 the Court decided to communicate the application to
the Government. Under the provisions of Article 29 § 3 of the
Convention, it was also decided that the merits of the application
would be examined together with its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Civil proceedings (divorce, custody and child maintenance)
On
22 December 1994 the applicant married D.M. and on 25 January 1995
their daughter S.M. was born.
In
1998 the applicant started having marital problems, apparently as a
result of her contracting HIV.
On
3 July 1998 S.M. left Zemun, a part of Belgrade where she lived with
her parents, to stay with her grandparents for a while.
In
early August of 1998, D.M. brought S.M. back to Zemun.
Shortly
afterwards, however, the applicant's marriage broke down and D.M.
ceased living with the applicant. He also took S.M. to his parents'
flat, denying the applicant any contact with her.
On
11 February 1999 the applicant filed a claim with the Fourth
Municipal Court in Belgrade (“Četvrti opštinski
sud u Beogradu”), seeking dissolution of the marriage, sole
custody of S.M. and child maintenance. In addition, she requested
interim relief, granting her temporary custody or, in the
alternative, regular weekly contacts with S.M. until the conclusion
of the civil proceedings.
On
23 July 1999 the Fourth Municipal Court in Belgrade (hereinafter “the
Municipal Court”) ordered the Social Care Centre (“Centar
za socijalni rad opštine Stari Grad”) to produce an
expert opinion as to which party should be granted custody.
D.M. (hereinafter “the respondent”) appears to have been
informed about the applicant's lawsuit during one of the meetings
held at the Social Care Centre in 1999.
Following
the institution of proceedings, the Municipal Court adjourned 15
separate hearings, including the hearings scheduled for 29 October
2003, 7 October 2004 and 19 October 2005, respectively.
Throughout
this time, though mostly in response to the applicant's numerous
proposals, the Municipal Court attempted to obtain information as
regards the respondent's correct address from various State bodies,
including the tax authorities, municipalities, the Ministry of
Education and even the Commercial Court.
Summonses
were sent to a number of addresses but each time the respondent could
not be served, which led the Municipal Court to conclude, on 17 April
2003, that he was “clearly avoiding receipt” of all court
documents.
On
3 November 2005 the respondent was duly served for the first time,
the summons having been sent to Kotor, Montenegro, on which occasion
he was both provided with the applicant's claim against him and
informed about the next hearing scheduled for 23 December 2005.
On
21 December 2005 the applicant's lawyer informed the Municipal Court
that she could not attend that hearing.
The
applicant maintained that during the proceedings in question the
presiding judge had stated publicly that she would either rule in
favour of the respondent or dismiss the applicant's claim on
procedural grounds. The Government contested this submission.
In
early 2006, the presiding judge was replaced by another and the case
itself taken under review by the Municipal Court's Special Committee
for Family Relations.
B. Request for the removal of the judge
On
31 March 2003, inter alia, the applicant complained to the
President of the Municipal Court, requesting that the presiding judge
in her case be removed.
She
claimed that the judge in question had tried to serve the respondent
via regular mail only but had failed to attempt to do so through the
bailiffs, as envisaged by the Civil Procedure Act (see paragraph 60
below).
Further,
despite the fact that it was up to the courts to establish the
respondent's correct address, she pointed out that on 31 March 2003
the judge had ordered her specifically to provide the court with the
address in question, in default of which her claim would be
dismissed.
Finally,
the applicant alleged that the judge herself had indicated that she
did not know what to do with the case and that the best solution
would have been for the applicant to withdraw her claim. The
Government contested this submission.
On
11 April 2003 the applicant's motion was rejected by the President of
the Municipal Court.
C. Interim access order
On
23 July 1999 the Municipal Court ordered the respondent to facilitate
the applicant's access to S.M., twice a month, until the adoption of
a final decision on the merits of the case.
On
19 October 1999 the applicant filed a submission with the Municipal
Court, stating that the respondent had refused receipt of the said
decision and requesting that he be served formally in accordance with
the relevant provisions of the Civil Procedure Act (see paragraph 60
below).
On
8 November 1999 and 19 February 2001, respectively, the applicant
sent two separate requests to the Municipal Court, seeking effective
enforcement of the interim access order.
On
23 October 2001 the applicant's lawyer withdrew her request of 8
November 1999.
On
4 June 2002 the bailiffs attempted to enforce the said interim access
order but, apparently, there was no one to be found at the
respondent's address. This enforcement would appear to have been
envisaged by means of a seizure of the respondent's movable assets
and their subsequent sale, the proceeds of which would then have been
used to cover the fine apparently imposed on the respondent for his
failure to comply with the order in question (see paragraph 65
below).
On
5 September 2002 the applicant filed another complaint with the
Municipal Court, seeking effective enforcement.
From
25 October 2002 until August 2005 the bailiffs tried again, on a
number of occasions and at several different addresses, but to no
avail.
On
26 August 2005 the applicant was ordered by the Municipal Court to
provide the respondent's correct address.
D. Relevant medical facts
On
10 February 1999 a medical clinic (“Klinički centar
Srbije”) attested that the applicant was HIV positive but
that she was being treated and was feeling well. The clinic added
that there was no reason why she should not be allowed to see S.M.
On
16 March 1999, 18 March 1999 and 21 May 2001, respectively, medical
opinions to the same effect were again issued by the said clinic, as
well as two other medical institutions (“Specijalistička
poliklinika za građanska lica” and “Institut
za infektivne i tropske bolesti”).
The
opinion of 21 May 2001 was addressed expressly to “the
competent Social Care Centre”.
E. Other relevant facts
The
applicant stated that she had frequently seen the respondent in the
streets of Belgrade throughout the period in question and pointed out
that he had also appeared in a television programme on several
separate occasions.
The
applicant further noted that she was informed by the Social Care
Centre that the respondent had publicly stated that he did not want
to be bothered by any legal proceedings and, in addition, that he had
told S.M. that her mother, the applicant, had died.
F. Procedural developments following the communication of the
application to the respondent Government
1. Civil proceedings (divorce, custody and child maintenance)
It
would appear that the Municipal Court held a hearing on 30 March 2006
and that it did so in the respondent's absence given that he had been
duly served at one of his addresses in Belgrade.
On
8 May 2006 the Kotor Police Department informed the Municipal Court
that the respondent could not be found at his address in Kotor but
that his neighbours had said that he had moved back to Belgrade.
At
the hearing held on 22 May 2006, the applicant informed the Municipal
Court that the respondent had re-registered his former company and
that its seat was now in Belgrade. She then went on to provide the
court with this address, as well as the current address of the
respondent's parents, and stated that S.M. was in fourth grade in one
of the primary schools in Belgrade.
On
23 May 2006 the Municipal Court sent a letter to the Commercial
Entities Registration Agency (“Agenciji
za privredne registre”) and the tax authorities,
seeking information about the respondent's income and his tax
situation, as well as whether the respondent was the owner, founder,
manager or deputy manager of the said company.
On
12 June 2006 the Municipal Court was informed that the respondent was
indeed the manager of the company in question.
The
next hearing was scheduled for 28 June 2006 and the court summonses
in this respect were sent both to the respondent's address in Kotor
and to his address in Belgrade, via the Kotor and Belgrade police
departments, respectively.
On
30 March 2006, 23 May 2006 and 7 June 2006, the Municipal Court urged
the competent Social Care Centre to “finalise” its report
and submit a proposal as to who should get custody of S.M.
The
Municipal Court thereafter obtained the medical reports concerning
the applicant's health of 16 March 1999 and 21 May 2001, respectively
(see paragraph 34 above), as well as a new report produced by the
Infectious and Tropical Diseases Institute (“Institut za
infektivne i tropske bolesti”) - Centre for HIV/AIDS of 12
April 2006, stating that there was no medical reason why the
applicant should not be granted custody of S.M.
On 28 June 2006 the Municipal Court heard the applicant and ordered
the Social Care Centre to produce its report as to who should be
given custody of S.M.
On 22 September 2006 the Municipal Court heard both the applicant and
the respondent, on which occasion the latter, inter alia,
stated that the former had not been honest about her medical
situation, or conscientious in terms of taking medication, which
seriously endangered his own life as well as that of S.M. The
respondent thus proposed that the applicant's health be reassessed
and the Municipal Court, having so ordered, scheduled the next
hearing for 22 December 2006.
On 22 December 2006 the Municipal Court adjourned the hearing,
stating that the case file was still with the District Court which
was about to rule in respect of the respondent's appeal filed against
the interim custody order issued on 15 June 2006 (see paragraphs 50
and 52 below).
The Municipal Court scheduled the next hearing for 12 March 2007.
2. Interim custody order
On
15 June 2006 the Municipal Court granted provisional custody of S.M.
to the applicant and ordered the respondent to surrender the child,
pending a final decision in the ongoing civil suit. In its reasoning,
inter alia, it found that: i) the respondent had made it
clear, from the outset, that he would “not allow” the
applicant to have contact with S.M. because of his fear that she
might also be “infected” with HIV; ii) the applicant was,
despite the respondent's claims to the contrary, a responsible and
motivated parent whose medical condition was stable, constantly under
review, and who presented no danger to S.M.; and iii) the respondent
had not only failed to comply with his obligation to inform the court
of his correct address but had in addition, for many years,
deliberately avoided receipt of court summonses which, in turn, had
resulted in the applicant being denied all contact with S.M. and
indicated a gross disregard for the interests of S.M. on his part.
Finally, the execution of this order was not to be deferred pending
any appeal filed against it.
On
20 July 2006 the applicant requested enforcement of the above order
and again provided the Municipal Court with the respondent's various
addresses.
On 5 October 2006 the respondent filed an appeal.
On
22 November 2006 the applicant complained to the President of the
Municipal Court, seeking speedy enforcement.
On
13 November 2006 the District Court accepted the respondent's appeal,
quashed the impugned order and instructed the Municipal Court to
re-examine the issue of the applicant's interim custody.
3. Additional proceedings brought by the applicant
In July 2006 the applicant filed a separate civil claim against the
respondent, seeking the removal of his parental rights. These
proceeding were also brought before the Municipal Court and were at
the time of adoption of this judgment apparently still ongoing.
II. RELEVANT DOMESTIC LAW
A. Relevant provisions concerning child custody and maintenance
disputes
1. Marriage and Family Relations
Act (Zakon o braku i porodičnim odnosima; published in the
Official Gazette of the Socialist Republic of Serbia - OG SRS - nos.
22/80, 11/88 and the official Gazette of the Republic of Serbia - OG
RS - nos. 22/93, 25/93, 35/94, 46/95 and 29/01)
Articles
310b, 390 and 391 provided that all maintenance-related suits and
child custody enforcement proceedings were to be dealt with by the
courts urgently.
2. Family Act (Porodični zakon; published in OG RS no. 18/05)
Under
Article 204 all family-related disputes involving children must be
resolved urgently. The first hearing must be scheduled within 15 days
of the date when the claim is filed. First instance courts should
conclude the proceedings following no more than two hearings, and
second instance courts must decide on appeal within a period of 30
days.
Similarly,
Article 280 defines all maintenance suits as “particularly
urgent”. The first hearing must be scheduled within 8 days of
the date when the claim is filed and second instance courts must
decide on appeal within 15 days.
This
Act entered into force on 1 July 2005 and thereby repealed the
Marriage and Family Relations Act referred to above.
B. Civil procedure rules
1. Civil Procedure Act 1977 (Zakon o parničnom postupku;
published in the Official Gazette of the Socialist Federal Republic
of Yugoslavia - OG SFRY - nos. 4/77, 36/77, 6/80, 36/80, 43/82,
72/82, 69/82, 58/84, 74/87, 57/89, 20/90, 27/90, 35/91 and the
Official Gazette of the Federal Republic of Yugoslavia - OG FRY -
nos. 27/92, 31/93, 24/94, 12/98, 15/98 and 3/02)
The
relevant provisions of this Act provided as follows:
Article 84 §§ 1 and 2
“The court shall appoint a temporary
representative to [act on behalf of] the respondent if it finds, in
the course of the proceedings before the court of first instance,
that the regular procedure for appointment of ... [such a
representative] ... could last too long, resulting in harmful
consequences for one or both parties.
Under the conditions set forth in Paragraph 1 of this
Article, the court shall appoint a temporary representative ...
4) when the place of residence of the respondent is
unknown and the respondent has no counsel ...”
106 § 2
“Written pleadings ... [including initial claims
aimed at the institution of court proceedings] ... must state ... the
name, occupation and the permanent or current address of the parties
...”
Article 133
“ ... [C]ourt documents shall primarily be
delivered through regular post but may also be delivered by a
designated court employee [“the bailiff”] ... or directly
in court.”
Article 141 §§ 1 and 2
“If the person to whom a court document is to be
delivered does not happen to be [at home], the delivery shall be
accomplished by serving the court documents on an adult member of his
[or her] household who must receive them. If such persons also happen
not to be [at home], the ... [court documents shall be served on] ...
the building manager or neighbour, if they agree.
If the delivery is to be performed at the office of a
person who does not happen to be there, it may be accomplished by
serving the court documents on a person working in the same office,
if that person so agrees.”
Article 142 §§ 1 and 2
“A complaint ... [as well as] ... a court decision
against which a separate appeal may be filed shall be delivered to
... [the respondent] ... in person ...
If a person who is to be served ... does not happen to
be at the place where the delivery is to be performed, the bailiff
shall find out when and where that person can be found and shall
leave a written notice with one of the persons mentioned in Article
141, paragraphs 1 and 2 of this Act, requesting that he [or she] be
present on a certain day and hour in his [or her] flat or office. If
the bailiff does not find the person to be served even after this, he
[or she] shall proceed in accordance with the provisions of Article
141 of this Act and the delivery shall thus be considered as having
been carried out.”
Article 144
“If the person to be served, an adult member of
the household, ... or an employee of a State body or a legal entity
refuses to receive the court documents without legal reason, the
bailiff shall leave the said documents in the flat or at the office
of that person or post it on the door of the flat or the office in
question. The bailiff shall make a note on the delivery slip
concerning the day, hour and reason for refusal of reception, as well
as the place where he or she left the court documents, and thus the
service shall be considered accomplished.”
Article 145 §§ 1, 2 and 3
“When a party ... changes its place of residence
or moves to another flat ... [prior to the adoption of the final
decision in the proceedings] ... [it] ... shall immediately inform
the court thereof.
If ... [it] ... fails to do so and the bailiff is unable
to establish ... [its] ... new flat or place of residence, the court
shall order that all further deliveries in respect of this party be
posted on the court's own notice board.
Eight days ... [thereafter] ... the delivery at issue
shall be deemed duly accomplished.”
Article 146
“The court shall invite a party ... who ... [is]
... abroad and does not have a representative in ... [Serbia] ... to
... authorise ... [another person] ... to receive all ... [Serbian
court-related correspondence] ... If the party ... fails to do so,
the court shall appoint ... [such a person] ... on a temporary basis
... and at the party's own expense ...”
Article 148
“If a party is unable to establish the address of
a person to whom the delivery is to be made, the court shall attempt
to obtain relevant information from ... [other State bodies] ... or
in some other way.”
2. Civil Procedure Act 2004 (Zakon o parničnom postupku;
published in OG RS no. 125/04)
The
substance of Articles 79 § 2 (4), 100 § 2, 127, 135, 136,
138, 139 and 141 of this Act corresponds, in the relevant part, to
that of the provisions of the Civil Procedure Act quoted above.
In
addition, Article 140 provides that, should “normal”
delivery during the course of the proceedings prove to be
unsuccessful, all court documents shall be posted on the court's own
notice board and that eight days thereafter the delivery at issue
shall be deemed duly accomplished.
Finally,
under Article 394 and 396, parties may file an
appeal on points of law (“revizija”) with the
Supreme Court. They may do so under certain very specific conditions
only and against a final judgment rendered at second instance.
This
Act entered into force on 23 February 2005, thereby repealing the
Civil Procedure Act referred to above.
C. Enforcement procedure rules
Article
209 of the Enforcement Procedure Act of 2000 (Zakon o izvršnom
postupku; published in OG FRY nos. 28/00, 73/00 and 71/01), while
placing special emphasis on the best interests of the child, states
that there shall be an initial period of three days for voluntary
compliance with a child custody order. Beyond that, however, fines
shall be imposed and, ultimately, if necessary, the child taken
forcibly, in co-operation with the Social Care Centre. Finally, under
Article 7 of the same Act, only the enforcement order and the court's
decision in respect of any complaints filed against this order shall
be served in accordance with the relevant civil procedure rules. In
all other instances the court's own notice board shall be made use of
for this purpose.
The
Enforcement Procedure Act of 2004 (Zakon o izvršnom
postupku; published OG RS no. 125/04) entered into force on
23 February 2005, thereby repealing the Enforcement
Procedure Act of 2000. In accordance with Article 304 of this Act,
however, all enforcement proceedings instituted prior to 23 February
2005 are to be concluded pursuant to the Enforcement Procedure Act of
2000.
D. Court Organisation Act (Zakon o uređenju
sudova; published in OG RS nos. 63/01, 42/02, 27/03, 29/04, 101/05
and 46/06)
The
relevant provisions of this Act read as follows:
Article 7
“A party or another participant in the court
proceedings shall have the right to complain about the work of a
court when they consider the proceedings delayed, improper, or that
there has been an [untoward] influence on their course and outcome.”
Article 51
“The President of a higher instance court shall
have the right to monitor the court administration of a lower
instance court, and the President of a directly higher court shall
have the authority to adopt an act from within the competence of the
President of a lower instance court, if the latter omits to perform
his duty.
The President of a higher instance court may request
from the lower instance court information regarding the
implementation of existing legislation, information concerning any
problems about trials and all information regarding the work of the
court.
The President of a higher instance court may order a
direct inspection of the work of a lower instance court.”
Article 52
“When a party to a case or another person taking
part in the proceedings files a complaint, the President of the court
must, having considered it, inform the complainant about his views
concerning its merits as well as any measures taken in this respect,
within 15 days of receipt of the complaint.
If a complaint was filed through the Ministry of Justice
or through a higher instance court, the Minister and the President of
a higher court shall be informed of the merits of the complaint and
of any measures taken in this respect.”
E. Rules of Court (Sudski poslovnik; published in OG RS nos.
65/03, 115/05 and 4/06)
Under
Article 8, inter alia, the President of a court must ensure
that the court's work is carried out in a timely manner. He or she
shall also look into every complaint filed by a party to the
proceedings in respect of delay and respond within 15 days, giving
his or her decision and, if necessary, ordering that steps be taken
to remedy the situation.
Article 4, inter alia, provides that the Ministry of Justice
shall supervise the work of the courts in terms of their timeliness.
Should certain problems be identified, the Ministry shall “propose”
specific measures to be undertaken within a period of 15 days.
F. Judges Act (Zakon o sudijama; published in OG RS nos. 63/01,
42/02, 60/02, 17/03, 25/03, 27/03, 29/04, 61/05 and 101/05)
The
relevant provisions of this Act read as follows:
Article 40a §§ 1 and 2
“The Supreme Court of Serbia shall set up a
Supervisory Board [“Nadzorni odbor”] (“the
Board”).
This Board shall be composed of five Supreme Court
judges elected for a period of four years by the plenary session of
the Supreme Court of Serbia.”
Article 40b
“In response to a complaint or ex officio,
the Board is authorised to oversee judicial proceedings and look into
the conduct of individual cases.
Following the conclusion of this process, the Board may
initiate, before the High Personnel Council, proceedings for the
removal of a judge based on his unconscientious or unprofessional
conduct, or propose the imposition of other disciplinary measures.”
G. Obligations Act (Zakon o obligacionim odnosima; published in OG
SFRY nos. 29/78, 39/85, 45/89, 57/89 and OG FRY
no. 31/93)
Article
172 § 1 provides that a legal entity (“pravno lice”),
which includes the State, is liable for any damage caused by one of
“its bodies” (“njegov organ”) to a
“third person”.
Under
Articles 199 and 200 of the Obligations Act, inter alia,
anyone who has suffered fear, physical pain or mental anguish as a
consequence of a breach of “personal rights” (“prava
ličnosti”) may, depending on
their duration and intensity, sue for financial compensation before
the civil courts and, in addition, request other forms of redress
“which may be capable” of affording adequate
non-pecuniary satisfaction.
H. Criminal Code (Krivični zakonik;
published in OG RS nos. 85/05, 88/05 and 107/05)
Article
134 § 1 provides, inter alia, that “whoever”
by means of “deceit” removes or holds another with the
intent to ... coerce” him or her, or another person, to “endure
something” shall be sentenced to a prison term of one to ten
years.
Under
Article 191 anyone who, inter alia, obstructs the enforcement
of a child custody decision shall be fined or sentenced to a prison
term not exceeding two years.
Article
340 states that “an official or another 'person in charge' who
refuses to enforce a final court decision, or does not enforce it
within the period prescribed by law or a period set forth in the
decision itself, shall be fined or sentenced to a prison term not
exceeding two years”.
I. Relevant provisions concerning the Court of Serbia and
Montenegro and the succession of the State Union of Serbia and
Montenegro
The
relevant provisions concerning the Court of Serbia and Montenegro and
the succession of the State Union of Serbia and Montenegro are set
out in the Matijašević v.
Serbia judgment (no. 23037/04, §§ 12, 13 and 16-25, 19
September 2006).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained about the length of the civil proceedings at
issue and the bias demonstrated by the presiding judge during those
proceedings. In so doing, she relied on Article 6 § 1 of the
Convention which, in the relevant part, reads as follows:
“In the determination of his [or her] civil rights
and obligations ... everyone is entitled to a fair ... hearing within
a reasonable time by an ... impartial tribunal ... ”
A. Admissibility
1. Arguments of the parties
a) As regards length
The
Government submitted that the applicant had not exhausted all
available, effective domestic remedies. In particular, she had failed
to complain about the delay in question to the President of the
Municipal Court, the President of the District Court, the Minister of
Justice and the Supreme Court's Supervisory Board, respectively (see
paragraphs 67-70 above). Further, she had not made use of the
complaint procedure before the Court of Serbia and Montenegro,
pursuant to the Constitutional Charter, the Charter on Human and
Minority Rights and Civic Freedoms, and the Court of Serbia and
Montenegro Act (see paragraph 76 above). Finally, the Government
maintained that the applicant had failed to bring a separate civil
lawsuit under Articles 199 and 200 of the Obligations Act (see
paragraphs 71 and 72 above).
The
applicant stated that a complaint to the Court of Serbia and
Montenegro, vaguely defined as it was, could not be considered an
effective domestic remedy in terms of Article 35 § 1 of the
Convention, and that, having complained to the President of the
Municipal Court on 31 March 2003, she had not complained to
the President of the District Court or the Ministry of Justice as
this would only have resulted in additional delay and, in any event,
could not have provided her with any effective redress. Finally, the
applicant stated that Article 199 of the Obligations Act was
irrelevant, as it concerned civil defamation primarily, and that a
successful lawsuit based on Article 200 of the same Act could, at
best and after years of litigation, have provided her with
compensation for the non-pecuniary damage suffered, but could not
have expedited the proceedings of which she complained.
b) As regards the alleged bias demonstrated by the
presiding judge
The
Government submitted that in view of the overall conduct of the judge
in question this complaint was groundless. In any event, the
applicant's request for the judge's removal had been duly considered
and subsequently rejected by the President of the Municipal Court
personally.
The
applicant provided no additional comments in this respect.
2. Relevant principles concerning length
The
Court recalls that, according to its established case-law, the
purpose of the domestic remedies rule in Article 35 §
1 of the Convention is to afford the Contracting States the
opportunity of preventing or putting right the violations alleged
before they are submitted to the Court. However, the only remedies to
be exhausted are those which are effective. It is incumbent on the
Government claiming non-exhaustion to satisfy the Court that the
remedy was an effective one, available in theory and in practice at
the relevant time (see, inter alia, Vernillo v. France,
judgment of 20 February 1991, Series A no. 198, pp. 11–12,
§ 27, and Dalia v. France, judgment of 19 February
1998, Reports 1998-I, pp. 87-88, § 38). Once this
burden of proof has been satisfied, it falls to the applicant to
establish that the remedy advanced by the Government was in fact
exhausted, or was for some reason inadequate and ineffective in the
particular circumstances of the case, or that there existed special
circumstances absolving him or her from this requirement (see
Dankevich v. Ukraine, no. 40679/98, § 107, 29 April
2003).
The
Court emphasises that the application of this rule must make due
allowance for the context. Accordingly, it has recognised that
Article 35 § 1 must be applied with some degree of
flexibility and without excessive formalism. The Court has recognised
that the rule of exhaustion of domestic remedies is neither absolute
nor capable of being applied automatically; in reviewing whether the
rule has been observed, it is essential to have regard to the
particular circumstances of the individual case. This means, amongst
other things, that the Court must take realistic account not only of
the existence of formal remedies in the legal system of the
Contracting Party concerned, but also of the general context in which
they operate, as well as the personal circumstances of the applicant
(see, Akdivar and Others v. Turkey, judgment of 16 September
1996, Reports 1996-IV, p. 1211, § 69). It must examine
whether, in all the circumstances of the case, the applicant did
everything that could reasonably be expected in order to exhaust
domestic remedies.
Finally,
the Court reiterates that the decisive question in assessing the
effectiveness of a remedy concerning a complaint about the length of
proceedings is whether or not there is a possibility for the
applicant to be provided with direct and speedy redress, rather than
an indirect protection of the rights guaranteed under Article 6 (see
Scordino v. Italy (no. 1) [GC],
no. 36813/97, § 195, ECHR 2006, and Sürmeli v.
Germany [GC], no. 75529/01, § 101, 8 June 2006).
In particular, a remedy of this sort shall be “effective”
if it can be used either to expedite a decision by the courts dealing
with the case or to provide the litigant with adequate redress for
delays which have already occurred (see Kudła v. Poland
[GC], no. 30210/96, §§ 157-159, ECHR 2000-XI, Mifsud
v. France (dec.), [GC], no. 57220/00, § 17, ECHR
2002-VIII, and Sürmeli v. Germany [GC],
cited above, § 99).
3. The Court's assessment
a) As regards the length
The
Court notes that requests to the President of the Municipal Court,
the President of the District Court, the Ministry of Justice and the
Supreme Court's own Supervisory Board to speed up the proceedings at
issue, as referred to by the Government, all represent hierarchical
complaints or, in other words, no more than mere information
submitted to a higher instance with full discretion to make use of
its powers as it sees fit (see paragraphs 67-70 above). In addition,
had any of these proceedings ever been instituted, they would have
taken place exclusively between the supervisory instance in question
and the judge/court concerned. The applicant herself would not have
been a party to such proceedings and would, at best, have only had
the right to be informed of their outcome (see, mutatis mutandis,
Horvat v. Croatia, no. 51585/99, § 47, ECHR 2001 VIII).
None of these remedies can therefore be considered effective within
the meaning of Article 35 § 1 of the Convention.
A
separate claim for damages caused by procedural delay (see
paragraphs 71 and 72 above) would also have been ineffective.
Even assuming that the applicant could have obtained compensation for
the past delay, the Government have failed to show that such
proceedings would have been speedier than any other “ordinary”
civil suit which could have lasted for years and gone through several
levels of jurisdiction (see, mutatis mutandis, Merit v.
Ukraine, no. 66561/01, § 59, 30 March 2004, and Scordino
v. Italy (no. 1), cited above, § 195). Moreover, for
the same reason, the said claim was clearly not capable of
expediting the proceedings at issue.
Finally,
as regards the Government's submission that the applicant should have
filed a complaint with the Court of Serbia and Montenegro, the Court
recalls that it has already held that this particular remedy was
unavailable until 15 July 2005 and, further, that it remained
ineffective until the break up of the State Union of Serbia and
Montenegro (see Matijašević
v. Serbia, cited above, §§ 34-37). The Court sees no
reason to depart in the present case from this finding and concludes,
therefore, that the applicant was not obliged to exhaust this
particular avenue of redress.
In
view of the above, the Court concludes that the applicant's complaint
about the undue length of the proceedings cannot be declared
inadmissible for non-exhaustion of domestic remedies under Article 35
§ 1 of the Convention. Accordingly, the Government's objection
in this respect must be dismissed. The Court also considers that
this complaint is not manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention and finds no other ground to
declare it inadmissible. The complaint must therefore be declared
admissible.
b) As regards the alleged bias
As
regards the applicant's additional complaint concerning the alleged
judicial bias demonstrated during the civil proceedings, the Court
notes that these proceedings are still pending, so this complaint is
premature and must, as such, be rejected for non-exhaustion of
domestic remedies, in accordance with Article 35 §§ 1 and 4
of the Convention.
B. Merits
1. Arguments of the parties
The
Government submitted that the impugned proceedings were extremely
complex and sensitive, in view of the applicant's health, the legal
and factual issues involved, and what was at stake for the parties.
They
argued that it was the applicant who had failed in her duty to
provide the Municipal Court with the respondent's correct address,
which, in turn, led to the delay complained of, and pointed out that
the hearing scheduled for 23 December 2005 was adjourned at the
applicant's explicit request (see paragraphs 16 and 17 above).
The
Government maintained that the Municipal Court had, however, acted
upon all of the applicant's proposals and done everything in its
power to establish the respondent's correct address. Nevertheless, it
could not, under domestic law, have ordered that the respondent be
brought to court forcibly. Nor indeed could it have appointed a
“temporary representative” to act on his behalf (see
paragraph 60, in particular Article 84 of the Civil Procedure Act
1977, and paragraph 61 above).
Finally,
the Government submitted that the proceedings at issue had
effectively commenced on 3 November 2005, when the respondent was
duly served with the relevant court documents for the first time,
although they also pointed out that the respondent State had ratified
the Convention on 3 March 2004 which is why these proceedings had
been within the Court's competence ratione temporis for a
period of “a little more than two years”.
The
applicant argued that the proceedings in question had been pending at
first instance since 1999, despite their pressing nature, and that it
was up to the State to organise its judicial system in a way which
would guarantee everyone's right to a fair hearing within a
reasonable time.
Further,
the applicant maintained that she had provided the respondent's
correct address in her initial claim filed with the Municipal Court
on 11 February 1999 and, moreover, that the respondent had been duly
served at that very address by the Social Care Centre prior to the
institution of the civil proceedings, as well as by the Municipal
Court recently (see paragraphs 12, 37 and 38 above).
In
any event, from the outset, the respondent had made it abundantly
clear that he would not take part in any proceedings and thereafter
had done everything to avoid receipt of the court summonses/documents
sent to him (see paragraphs 15, 37 and 50 above). In such
circumstances, the applicant could not reasonably have been expected
to submit the respondent's new address, time and time again, and nor
was she legally obliged to do so. On the contrary, it was up to the
respondent to inform the court of any change in his address, while
the Municipal Court, for its part, had clearly failed to make use of
the numerous procedural tools at its disposal in order to have the
respondent served formally (see paragraphs 60-62 above).
Finally,
the applicant pointed out that the actions of the Municipal Court
referred to by the Government were undertaken at her own insistence
primarily, as well as in response to proposals made by her lawyer.
The applicant's claim contained all of the information necessary for
the Municipal Court to proceed effectively, and the applicant herself
could not be blamed for the evasive conduct of the respondent or the
inactivity of the Serbian judiciary.
2. Relevant principles
The
reasonableness of the length of proceedings must be assessed in the
light of the circumstances of the case and having regard to the
criteria laid down in the Court's case-law, in particular the
complexity of the case, the behaviour of the applicant and the
conduct of the relevant authorities.
In
cases relating to civil status, what is at stake for the applicant is
also a relevant consideration and special diligence is required in
view of the possible consequences which the excessive length of
proceedings may have, notably on the enjoyment of the right to
respect for family life (see, among other authorities, Laino
v. Italy [GC], no. 335158/96, § 18, ECHR 1999-I).
Further,
according to the Court's established case-law, a chronic backlog of
cases is not a valid explanation for excessive delay (see Probstmeier
v. Germany, judgment of 1 July 1997, Reports 1997-IV,
p. 1138, § 64). Indeed, Article 6 § 1 imposes on the
Contracting States the duty to organise their judicial systems in
such a way that their courts can meet each of its requirements,
including the obligation to hear cases within a reasonable time (see
Portington v. Greece, judgment of 23 September 1998,
Reports 1998-VI, p. 2633, § 33).
Finally,
the Court has required exceptional diligence in dealing with cases
where the plaintiff was HIV positive, as well as in all matters where
the impugned proceedings concerned a child custody dispute (see,
mutatis mutandis, A. and Others v. Denmark, judgment of
8 February 1996, Reports 1996 I, § 78, and Nuutinen
v. Finland, no. 32842/96, § 110, ECHR 2000 VIII,
respectively).
3. Period to be taken into account
The
Court observes that the proceedings at issue commenced on 11 February
1999, when the applicant lodged her civil claim with the Municipal
Court. However, the period which comes within the Court's competence
ratione temporis did not begin on that date, but on
3 March 2004, after the Convention entered into force in
respect of Serbia (see, mutatis mutandis, Foti and Others
v. Italy, judgment of 10 December 1982, Series A
no. 56, pp. 18-19, § 53). The civil proceedings are currently
still pending at first instance. They have thus so far lasted eight
years, of which more than two years and eleven months fall to be
examined by the Court.
The
Court further notes that, in order to determine the reasonableness of
the length of time in question, regard must also be had to the state
of the case on the date of ratification (see, among other
authorities, Styranowski v. Poland, judgment of 30 October
1998, Reports 1998-VIII) and finds that on 3 March 2004 the
proceedings at issue had already been pending for some five years at
first instance.
4. The Court's assessment
The
Court notes firstly that the impugned proceedings involved
dissolution of marriage, child custody and child maintenance, and
that, as such, they were of a relatively complex nature.
Secondly,
the issues in these proceedings were clearly of particular
significance for the applicant as well as her child, and required
special diligence on the part of the domestic authorities (see
paragraphs 99 and 101 above).
Thirdly,
the applicant herself was HIV positive, a fact at the very least
known to the Social Care Centre (itself a State agency involved in
the proceedings), which required exceptional diligence (see
paragraphs 33-35 and 101 above).
Fourthly,
the applicant made every reasonable effort to expedite the
proceedings and can only be held responsible for the adjournment of
the hearing scheduled for 23 December 2005 (see paragraphs 16 and 17
above).
Fifthly,
she spared no effort to provide the Municipal Court with the
respondent's address, even though, following the institution of the
proceedings, she was clearly under no legal obligation to do so (see
paragraphs 14, 40 and 60 above, in particular Articles 106, 145 and
148 of the Civil Procedure Act 1977, as well as paragraphs 61 and 62
above).
Finally,
the Municipal Court consistently failed to make use of the available
domestic procedural tools to have the respondent served formally,
which would have facilitated the continuation of the proceedings in
question. In particular, even assuming that the legal conditions for
the appointment of a “temporary representative” had not
been fulfilled, as alleged by the Government, the Municipal Court
could and should have resorted to other measures at its disposal,
including, though not limited to, the placement of the summonses and
other court documents addressed to the respondent on its own notice
board (see paragraph 60, in particular Article 145 of the Civil
Procedure Act 1977, and paragraph 62 above, as well as paragraphs 60
and 61 passim).
In
the light of the criteria laid down in its case-law and having regard
to the circumstances of the case, as well as the parties'
submissions, the Court considers that the length of the proceedings
complained of, and which are still pending, has failed to satisfy the
reasonable time requirement.
There
has, accordingly, been a violation of Article 6 § 1 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
Under
Article 8 of the Convention, the applicant complained that the delay
in the civil case meant that she has been unable to see her child or
exercise any of her parental rights for some eight years.
In
addition, under Article 6 § 1 of the Convention, she complained
about the respondent State's failure to enforce the interim access
order of 23 July 1999.
Article
8 reads, insofar as relevant, as follows:
“1. Everyone has the right to respect
for his private and family life, ...
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society ...
for the protection of health or morals, or for
the protection of the rights and freedoms of others.”
115. Being
the master of the characterisation to be given in law to the facts of
any case before it, the Court considers that the applicant's
complaint made under Article 6 § 1 above also falls to be
examined under Article 8 of the Convention (see Akdeniz v. Turkey,
no. 25165/94, § 88, 31 May 2005, and Hokkanen v.
Finland, judgment of 23 September 1994, §§ 60-62,
Series A no. 299 A).
A. Admissibility
The
Government and the applicant both relied on the arguments already
summarised at paragraphs 78 and 79 above.
In
addition, the Government implied that the applicant had failed to
file either an appeal on points of law (“revizija”)
or, in respect of the non-enforcement of the interim access order
alone, a criminal complaint under Articles 134 § 1, 191 § 2
and 340 of the Criminal Code (see paragraphs 63 and 73-75 above).
The
applicant stated that there were no factual or legal bases to allege
that any of the crimes referred to by the Government had been
committed and, further, that an appeal on points of law could only
have been filed against a final court judgment, had there been one.
The
Court notes that there was indeed no final judgment rendered at
second instance against which an appeal on points of law could
formally have been lodged. Further, a criminal complaint, though
possible, would also have been ineffective: that is, no speedier than
any other “ordinary” criminal matter which could have
lasted for years and gone through several instances. Finally, the
Government themselves offered no evidence to the contrary. Both an
appeal on points of law and a criminal complaint were consequently
remedies which did not have to be exhausted in terms of Article 35 §
1 of the Convention.
As
regards other admissibility arguments, already described at
paragraphs 78 and 79 above, the Court has considered them, but again
comes to the same conclusions as described at paragraphs 85-88 above.
The
Court notes therefore that the applicant's complaints under Article
8, concerning the non-enforcement of the interim access order as well
as the length of the civil proceedings, are not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that they are not inadmissible on any
other grounds. They must therefore be declared admissible.
A. Merits
1. Arguments of the parties
a) As regards the non-enforcement of the interim
access order
The
Government noted that the best interests and the opinion of S.M. had
to be taken into account, that S.M. had spent the last eight years of
her life with her father alone and that the obligation to reunite the
parent and the child was not absolute, meaning that the child's
interests could override the parent's request for access and/or
custody.
The
Government recalled that any coercion in this area had to be limited,
as the interests and rights of all concerned had to be considered
carefully.
The
Government further observed that the Municipal Court had taken all
reasonable steps at its disposal in order to facilitate the
enforcement of the interim access order in question even though on
23 October 2001 the applicant's lawyer had withdrawn her request
to have this order enforced.
Finally,
the Government pointed out that, on 15 June 2006, the Municipal Court
had granted interim custody of S.M. to the applicant and had ordered
the respondent to surrender the child, pending a final decision in
the ongoing civil suit.
The
applicant stated that the interim access order had not been enforced
because the respondent had openly refused to comply with it and had
for years thereafter successfully avoided being duly summoned.
She
added that throughout this time the Serbian authorities had failed in
their obligation to locate the respondent's residence, or make use of
any coercive measures aimed at the enforcement of the order in
question.
Finally,
the applicant stressed that the State had an obligation to reunite
her with S.M. and that the passage of time alone could result in
irremediable consequences for herself and her child.
b) As regards the length of the civil proceedings
The
Government and the applicant both relied on the arguments already
outlined at paragraphs 90-97 above.
2. Relevant principles
The
Court notes that the mutual enjoyment by parent and child of each
other's company constitutes a fundamental element of “family
life” within the meaning of Article 8 of the Convention (see,
among other authorities, Monory v. Romania and Hungary, no.
71099/01, § 70, 5 April 2005).
Further,
even though the primary object of Article 8 is to protect the
individual against arbitrary action by public authorities, there are,
in addition, positive obligations inherent in effective “respect”
for family life. In both contexts, regard must be had to the fair
balance which has to be struck between the competing interests of the
individual and of the community as a whole; in both contexts the
State enjoys a certain margin of appreciation (see Keegan v.
Ireland, judgment of 26 May 1994, Series A no. 290, p. 19,
§ 49).
In
relation to the State's obligation to implement positive measures,
the Court has held that Article 8 includes for parents a right that
steps be taken to reunite them with their children and an obligation
on the national authorities to facilitate such reunions (see, among
other authorities, Ignaccolo-Zenide v. Romania, no. 31679/96,
§ 94, ECHR 2000-I; Nuutinen v. Finland, no.
32842/96, § 127, ECHR 2000-VIII; Iglesias Gil and
A.U.I. v. Spain, no. 56673/00, § 49,
ECHR 2003-V).
In
cases concerning the enforcement of decisions in the sphere of family
law, the Court has repeatedly found that what is decisive is whether
the national authorities have taken all necessary steps to facilitate
the execution as can reasonably be demanded in the special
circumstances of each case (see, mutatis mutandis, Hokkanen
v. Finland, cited above, § 58; Ignaccolo-Zenide,
cited above, § 96; Nuutinen v. Finland, cited above,
§128; Sylvester v. Austria, nos. 36812/97
and 40104/98, § 59, 24 April 2003).
In
this context, the adequacy of a measure is to be judged by the
swiftness of its implementation, as the passage of time can have
irremediable consequences for relations between the child and the
parent who do not cohabit (see Ignaccolo-Zenide, cited above,
§ 102).
Finally,
the Court has held that although coercive measures against the
children are not desirable in this sensitive area, the use of
sanctions must not be ruled out in the event of unlawful behaviour by
the parent with whom the children live (see Ignaccolo-Zenide,
cited above, § 106).
3. The Court's assessment
The
Court notes that it was common ground that the tie between the
applicant and her child fell within the scope of “family life”
within the meaning of Article 8 of the Convention (see paragraph 130
above).
a) As regards the non-enforcement of the interim
access order
The
Court observes that the attempts to enforce the interim access order
of 23 July 1999 clearly continued beyond 23 October 2001, and,
further, that this order became temporarily irrelevant between 15
June 2006 and 13 November 2006, that is whilst the subsequently
adopted interim custody order had itself been in force (see
paragraphs 25-32, 50 and 54 above).
It
is also noted that even though the applicant's lawyer had withdrawn
her enforcement request of 8 November 1999, on 19 February 2001
the applicant filed another request to the same effect, and that
several attempts to enforce the interim access order were made
thereafter (see paragraphs 27-31 above).
That
being so and having regard to more than four years of non-enforcement
prior to ratification, it must be determined whether there has been a
failure to respect the applicant's family life during the subsequent
two years and two months of non-enforcement prior to 15 June 2006, as
well as in respect of the time which has elapsed since 13 November
2006, both periods falling within the Court's competence ratione
temporis.
In
this context, the Court notes that from 3 March 2004 until 15 June
2006 the Municipal Court attempted enforcement on several occasions,
but each time there was no one to be found at the respondent's
address. However, after 13 November 2006 no attempts were made to
enforce it.
Further,
throughout the period at issue, the Municipal Court failed to make
use of the available domestic procedural tools to have the respondent
served formally (see paragraphs 60, in particular Article 145 of the
Civil Procedure Act 1977, and 62 above, as well as paragraphs 60 and
61 passim), being content instead occasionally to order the applicant
to provide the respondent's address even though she was clearly not
under a legal obligation to do so (see paragraphs 32 and 60 above, in
particular Articles 145 and 148 of the Civil Procedure Act 1977, as
well as paragraph 61).
Finally,
despite the respondent's consistent attempts to avoid taking part in
any proceedings (see paragraphs 15, 37 and 50 above), it would appear
that the Municipal Court had not even considered the use of coercion
pursuant to the relevant enforcement procedure rules (see paragraphs
29 and 65 above).
Having
regard to the facts of the case, including the passage of time, the
best interests of S.M., the criteria laid down in its own case-law
and the parties' submissions, the Court, notwithstanding the State's
margin of appreciation, concludes that the Serbian authorities have
failed to make adequate and effective efforts to execute the interim
access order of 23 July 1999.
There
has, accordingly, been a breach of the applicant's right to respect
for her family life and a violation of Article 8 of the Convention.
b) As regards the length of the civil proceedings
The Court has considered the arguments put forward by
the parties as described at paragraphs 90-97 above, as well as the
relevant facts, and again comes to the same conclusions described at
paragraphs 104-110 above.
Given
the compelling circumstances of the present case, in particular what
is at stake for the applicant, the conduct of the Serbian authorities
and, indeed, the difference in the nature of the interests protected
by Article 6 § 1 and Article 8 of the Convention (see, mutatis
mutandis, McMichael v. the United Kingdom, judgment of 24
February 1995, Series A no. 307 B, § 91, and H.N.
v. Poland, no. 77710/01, 13 September 2005), the Court finds that
the length of the impugned civil proceedings amounts to a separate
breach of Article 8.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
Under
Article 13 of the Convention, the applicant complained that she had
no effective domestic remedy in order to expedite the civil
proceedings at issue. Article 13 reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. Admissibility
The Court notes that this complaint raises issues of
fact and law under the Convention, the determination of which
requires an examination of the merits. It also considers that the
complaint is not manifestly ill-founded within the meaning of Article
35 § 3 of the Convention and that it cannot be declared
inadmissible on any other grounds. The complaint must therefore be
declared admissible.
B. Merits
1. Arguments of the parties
The
Government contested the applicant's claim and, in so doing, relied
on their arguments described at paragraph 78 above.
The
applicant provided no additional comments in this respect.
2. Relevant principles
The
Court notes that Article 13 guarantees an effective remedy
before a national authority for an alleged breach of all rights and
freedoms guaranteed by the Convention, including the right to a
hearing within a reasonable time under Articles 6 § 1 (see,
inter alia, Kudła v. Poland, cited above, §
156).
It
recalls, further, that a remedy concerning length is “effective”
if it can be used either to expedite the proceedings before the
courts dealing with the case, or to provide the litigant with
adequate redress for delays which have already occurred (see Sürmeli
v. Germany [GC], cited above, § 99).
Finally,
the Court emphasises that the best solution in absolute terms is
indisputably, as in many spheres, prevention. Where the judicial
system is deficient with regard to the reasonable-time requirement in
Article 6 § 1 of the Convention, a remedy designed to expedite
the proceedings in order to prevent them from becoming excessively
lengthy is the most effective solution. Such a remedy offers an
undeniable advantage over a remedy affording only compensation since
it also prevents a finding of successive violations in respect of the
same set of proceedings and does not merely repair the breach a
posteriori, as does a compensatory remedy. Some States have fully
understood the situation by choosing to combine two types of remedy,
one designed to expedite the proceedings and the other to afford
compensation (see Scordino, cited above, §§ 183 and
186, Cocchiarella v. Italy [GC], no. 64886/01, §§ 74
and 77 ECHR 2006, and Sürmeli v. Germany
[GC], cited above, §100).
3. The Court's assessment
The
Court notes that the Government have already suggested in their
preliminary objection that there were remedies available for the
applicant's complaint about length made under Article 6 § 1 and
that, in so far as they rely on the same reasoning by way of their
response to the Article 13 complaint, their arguments must, just
like their objection, be rejected on the grounds described at
paragraphs 85-87 above.
The
Court concludes, therefore, that there has been a violation of
Article 13 taken together with Article 6 § 1 of the
Convention on account of the lack of an effective remedy under
domestic law for the applicant's complaints concerning the length of
her civil case.
IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
Finally,
the applicant complained that she had suffered a violation of her
rights under Articles 6 § 1 and 8 of the Convention, as
described above, based solely on the fact that she was HIV positive.
In so doing, she relied on Article 14, which provides as follows:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
The
Government contested the applicant's submissions and pointed out that
the Municipal Court was not even aware of the fact that the applicant
was HIV positive until after the communication of the application in
the present case.
The
applicant stated that the first presiding judge in her case had been
aware of this fact throughout the proceedings, even though this
information should have been confidential, and that this may also
account for the fact that she was not granted interim custody from
the very beginning. As regards the second presiding judge, appointed
subsequently, the applicant acknowledged that she had, in fact, been
informed only after the communication of the application in the
present case.
In
view of the facts of the instant case and irrespective of whether,
and if so when, the two presiding judges each found out about the
applicant being HIV positive, the Court finds that the available
evidence is insufficient for it to conclude that the applicant had
indeed been discriminated against on the grounds of her health. It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4
of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The applicant initially claimed 30,000 euros (EUR) in respect of the
non-pecuniary damage suffered, having subsequently increased this
claim to one million euros for each year of procedural delay.
The
Government contested that claim. They added, however, that should the
Court find a violation of the Convention this finding alone should
constitute adequate just satisfaction or, in the alternative, that
any financial compensation awarded should be consistent with the
Court's own case-law in other similar cases.
The
Court considers that the applicant has suffered considerable
non-pecuniary harm as a result the breach of her rights under the
Convention, which is why a finding of a violation alone would clearly
not constitute sufficient just satisfaction within the meaning of
Article 41.
The
impugned conduct of the respondent State's judiciary, in particular,
must have been a constant source of distress for the applicant who
last saw her child in 1998, some eight years ago.
Having regard to the above, the amounts awarded in comparable cases
(see, mutatis mutandis, Ignaccolo-Zenide, cited above,
§ 117) and on the basis of equity, as required by Article 41,
the Court awards the applicant EUR 15,000 under this head.
Finally,
the Court points out that under Article 46 of the Convention the High
Contracting Parties undertook to abide by the final judgments of the
Court in any case to which they were parties, execution being
supervised by the Committee of Ministers. It follows, inter alia,
that a judgment in which the Court finds a breach imposes on the
respondent State a legal obligation not just to pay those concerned
the sums awarded by way of just satisfaction, but also to choose,
subject to supervision by the Committee of Ministers, the general
and/or, if appropriate, individual measures to be adopted in their
domestic legal order to put an end to the violation found by the
Court and to redress, in so far as possible, the effects thereof (see
Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, §
249, ECHR 2000 VIII). The Government shall therefore, by
appropriate means, enforce the interim access order of 23 July 1999
and bring to a conclusion, with particular diligence, the ongoing
civil proceedings (see, mutatis mutandis, MuZević v.
Croatia, no. 39299/02, § 91, 16 November 2006).
B. Costs and expenses
The
applicant also claimed EUR 2,590 for the costs and expenses incurred
before the domestic courts and EUR 6,300 for those incurred before
the Court. In this respect she provided a detailed and itemised
calculation.
The
Government contested that claim, but left the matter to the Court's
discretion in the event that it finds a violation of any of the
rights guaranteed by the Convention.
According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
also reasonable as to their quantum (see, for example, Iatridis v.
Greece (just satisfaction) [GC], no. 31107/96, § 54,
ECHR 2000-XI).
In
the present case, the Court considers that the amounts claimed by the
applicant are excessive. Regard being had to all of the information
in its possession and the above criteria, however, the Court
considers it reasonable to award the applicant the sum of EUR 1,350
for the costs incurred domestically, in particular those undertaken
with a view to expediting the proceedings complained of (see, mutatis
mutandis, Le Compte, Van Leuven and De Meyere v. Belgium,
judgment of 18 October 1982 (Article 50), Series A no. 54,
§ 17; see also, argumentum a contrario, O'Reilly and
Others v. Ireland, no. 54725/00, § 44, 29 July 2004),
and another EUR 3,000 for the costs incurred in the proceedings
before this Court.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank plus
three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaints under Article 6 § 1
(concerning the length of the civil proceedings), Article 8 and
Article 13 of the Convention admissible and the remainder of the
application inadmissible;
Holds that there has been a violation of
Articles 6 § 1 and 8 of the Convention as regards the length of
the civil proceedings;
Holds that there has been a violation of Article
8 of the Convention as regards the non-enforcement of the interim
access order;
Holds that there has been a violation of Article
13 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final, in accordance with
Article 44 § 2 of the Convention, EUR 15,000
(fifteen thousand euros) in respect of non-pecuniary damage and a
total of EUR 4,350 (four thousand three hundred and fifty euros) for
costs, which sums are to be converted into the national currency of
the respondent State at the rate applicable on the date of
settlement, plus any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 13 March 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
F. Elens-Passos F. Tulkens
Deputy Registrar President
