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MIJUSKOVIC v. MONTENEGRO - 49337/07 [2010] ECHR 1326 (21 September 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1326.html
Cite as:
[2010] ECHR 1326
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FOURTH
SECTION
CASE OF MIJUŠKOVIĆ v. MONTENEGRO
(Application
no. 49337/07)
JUDGMENT
STRASBOURG
21 September 2010
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 Mijušković
v. Montenegro,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
Ján Šikuta,
Mihai
Poalelungi,
Nebojša Vučinić,
judges,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 31 August 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 49337/07) against Montenegro
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Montenegrin national, Ms Svetlana Mijušković
(“the applicant”), on 2 November 2007.
The
applicant was represented by Mr D. Kovačević, a lawyer
practising in Nikšić. The Montenegrin Government (“the
Government”) were represented by their Agent, Mr. Z. PaZin.
The
applicant primarily complained, under Article 8 of the Convention, of
the belated enforcement of a final custody judgment, as well as the
respondent State's prior failure to enforce an interim custody order.
On
2 September 2009 the President of the Fourth Section decided to give
notice of the application to the Government. Under Article 29 §
3 of the Convention, it was also decided to examine the merits of the
application at the same time as its admissibility and to give
priority to the application in accordance with Rule 41 of the Rules
of Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Introduction
The
applicant was born in 1971 and currently lives in Budva.
The
facts of the case, as submitted by the parties, may be summarised as
follows.
On
26 April 1998 the applicant and V.K. married and on 12 October 1998
their twins, A and B, were born.
On
5 June 2003, due to marital problems, the applicant moved back to her
parents' house in Nikšić, together with the children.
On
22 July 2004 the Social Care Centre in Nikšić (“the
NSCC”) issued a decision regulating V.K.'s access to A and B.
It
would appear that during this period V.K. had been seeing the
children in accordance with this decision.
On
5 January 2005 V.K. took the children for the winter holiday and
subsequently refused to return them to the applicant.
On
8 March 2005 the NSCC ordered that the children be returned to the
applicant and entrusted the enforcement of that order to the Social
Care Centre in Budva (“the BSCC”).
On
14 March 2005 the BSCC, with police assistance, attempted to enforce
the order in question, but it appears that V.K.'s parents physically
prevented that from happening.
Between
April and June 2005, at the applicant's requests, the NSCC issued
three additional decisions, urging V.K. to surrender the children.
They provided that should V.K. fail to comply with the applicant's
custody rights he would be fined, and that, ultimately, forcible
enforcement might be called for.
On
one occasion thereafter V.K. brought the children to the BSCC but
refused to surrender them to the applicant, claiming that the
children did not want to live with her.
There
is no evidence in the case file indicating that V.K. had been fined
or, indeed, that a forcible transfer of custody had been attempted
again.
B. The first set of civil proceedings
On
23 June 2003 V.K. lodged a claim with the Court of First Instance in
Kotor, seeking the dissolution of his marriage to the applicant as
well as custody of the children.
On
1 September 2003 the applicant lodged a counter-claim to the same
effect.
On
9 March 2004 the presiding judge joined the two claims into a single
set of proceedings.
On
5 January 2006 the Court of First Instance: (i) dissolved the
marriage, (ii) granted custody of the children to the applicant, and
(iii) ordered V.K. to pay monthly child maintenance.
On
5 May 2006 the High Court upheld that judgment and it thereby became
final.
On
12 September 2006 the Supreme Court dismissed V.K.'s appeal on points
of law (revizija).
C. The enforcement proceedings
On
12 June 2006 the applicant submitted a request for the enforcement of
the final judgment.
On
22 June 2006 the Court of First Instance in Kotor issued an
enforcement order whereby V.K. was given three days to surrender the
children to the applicant. He was also warned that if he failed to
comply he could be fined or even subjected to a forcible transfer of
custody.
On
21 July 2006 the High Court upheld this order.
On
26 February 2009 the applicant submitted a request for a review
(kontrolni zahtjev; see paragraph 46 below) with the Court of
First Instance, seeking execution of the enforcement order.
On
5 March 2009 the execution judge (izvršni sudija)
informed the President of the court that as it was “impossible
to reach an agreement [...] by which the children would be
surrendered” to the applicant, the bailiff was ordered to
enforce “without delay” the fine of EUR 500 in respect of
V.K. He finished his report by stating “that it [was]
impossible to say when and how the enforcement proceedings at issue
shall be concluded”.
On
7 March 2009 the bailiff made an attempt to enforce the fine, but it
was to no avail due to the verbal and physical resistance of V.K.'s
parents. Subsequently, the bailiff requested the President of the
court to release her of the duty to enforce the fine.
On
9 March 2009 V.K. was informed that the forcible payment of the fine
would be executed on 13 March 2009. On 12 March 2009 V.K.'s father
paid the fine imposed.
On
17 March 2009 the Court of First Instance issued another enforcement
order requesting that the children be surrendered to the applicant
within three days, failing which V.K. would be fined EUR 1,000.
On
10 September 2009, after the application had already been
communicated to the respondent Government, the Court of First
Instance issued a decision specifying that the order would be
enforced on 8 October 2009, if need be, by means of a forcible
transfer of custody.
On
8 October 2009 V.K. refused to surrender the children, who,
apparently, also resisted the transfer. The BSCC representative
proposed that a forcible transfer of custody be postponed and the
judge accepted to do so.
On
23 October 2009, when the enforcement was to be attempted again, V.K.
proposed that it be adjourned until the court had decided on his
request for custody (see paragraphs 36-38 below), or that an interim
period be allowed, with the participation of a family psychologist,
to help the children to adapt to the new situation. The BSCC
representative also suggested that a transitional period be allowed
before the enforcement. The applicant insisted on the enforcement.
The house was searched, but the children were not found. The
applicant was invited to submit a proposal as to how the judgment
could be further enforced as well as to inform the court on her
possibility to provide the necessary labour force for the enforcement
(“eventualnog obezbjeđenja potrebne radne snage”).
At the same time, the police were invited to establish the
whereabouts of the children.
On
30 November 2009, during another attempt at enforcement, the children
refused to go with the applicant, claiming that she had not treated
them properly. After V.K.'s parents, who had resisted the
enforcement, were removed, the judgment was enforced and the children
were finally surrendered to the applicant.
The
applicant maintained that as of 5 January 2005 until 30 November
2009 she had only had sporadic and brief contact with her children,
mostly in-between school classes and, even then, in the presence of
V.K. or his father.
D. The second set of civil proceedings
On
an unspecified date V.K. instituted a new civil complaint, seeking
sole custody of the children.
On
1 June 2009 the Court of First Instance ruled in his favour and
ordered the applicant to pay monthly child maintenance. In so
deciding, the court took account of an informal conversation that an
expert psychiatrist had had with the children. The psychiatrist's
conclusion was that A and B wanted to live with their father, that it
would be stressful for them to be taken away from their present home,
but that their mother needed to be allowed regular access. When
specifically asked whether the children had been negatively directed
towards their mother by their father, the expert responded by saying
that “it [was] obvious that the children had been negatively
directed towards their mother by an adult person”. The court
noted that the children had been living with their father, contrary
to the final judgment rendered in 2006, but that they had adapted to
it and liked it. Finally, the court concluded that “the factual
situation [had] lasted for far too long” and that it was in the
children's interest to verify the situation.
On
15 September 2009 the High Court in Podgorica quashed this judgment
and remitted the case to the Court of First Instance.
E. Criminal proceedings against V.K.
On
16 February 2007 V.K. was found guilty of domestic violence, the
victim being the applicant, and was sentenced to three months in
prison, suspended for a period of two years. On 28 June 2007 the High
Court in Podgorica overturned that judgment and dismissed the charges
as the criminal prosecution had become time-barred.
On
7 December 2007 the Court of First Instance in Kotor acquitted V.K.
of charges of child abduction (oduzimanje maloljetnog lica)
concluding that “[...] although the said acts of the accused
contained all the elements of the criminal offence he had been
charged with, the said offence represented an act of minor
significance”. On 28 May 2008 the High Court in Podgorica
upheld that judgment and it thereby became final.
II. RELEVANT DOMESTIC LAW
A. Constitution of Montenegro 2007 (Ustav Crne Gore; published in
the Official Gazette of Montenegro - OGM - no. 1/07)
The
relevant provisions of the Constitution read as follows:
Article 149
“The Constitutional Court shall ...
(3) ... [rule on a] ... constitutional appeal ... [filed
in respect of an alleged] ... violation of a human right or freedom
guaranteed by the Constitution, after all other effective legal
remedies have been exhausted ...”
This
Constitution entered into force on 22 October 2007.
B. Constitutional Court Act of Montenegro (Zakon o Ustavnom sudu
Crne Gore; published in OGM no. 64/08)
The
relevant provision of the Constitutional Court Act read as follows:
Article 48
“Constitutional appeal can be filed against an
individual decision of a state body [...] for violations of human
rights and freedoms guaranteed by the Constitution, after all other
effective domestic remedies have been exhausted.”
Articles
49-59 provide additional details as regards the processing of
constitutional appeals.
This
Act entered into force on 4 November 2008.
C. Right to a Trial within a Reasonable Time Act (Zakon o zaštiti
prava na suđenje u razumnom roku; published in OGM
no.
11/07)
Relevant
provisions of this Act read as follows:
Article 2 § 1
“The party and the intervener in civil matters
[...] shall have the right to judicial protection in the event of
violation of the right to trial within a reasonable time [...].”
Article 3
“Legal remedies for the protection of right to
trial within a reasonable time shall be:
Request
to accelerate the proceedings (hereinafter referred to as the
request for review);
Action
for fair redress.”
Article 17
“If the judge notifies the president of the court
that certain procedural measures will be undertaken ... no later than
four months after the receipt of the request for review, the
president of the court shall notify the party thereof and thus
finalise the procedure upon the request for review.”
Article 23 § 1
“If the president of the court acted pursuant to
Article 17 [...], the party cannot file another request for review in
the same case before the expiry of the period specified in the
notification [...].”
Article 24 § 1
“If the president of the court [...] does not
deliver [...] notification on the request for review to the party
[...] pursuant to Article 17 the party may lodge an appeal [...].”
Article 31
“Fair redress for the violation of the right to
trial within a reasonable time may be realised by:
payment
of monetary compensation for the damage caused by the violation of
the right to trial within a reasonable time, and/or
by
publishing the judgment that the right of the party to a trial
within a reasonable time has been violated.”
Article 33 § 3
“The action [for fair redress] ... shall be filed
with the Supreme Court no later than six months after the date of
receipt of the final and legally binding decision on the request for
review within the procedure of enforcement of the decision.”
Article 40
“The Supreme Court shall be obliged to make a
decision on the action no later than four months after the date of
receipt of the action.”
Article 44
“This Act shall apply also to judicial proceedings
instituted before the entry into force of this Act but after 3 March
2004.
In cases referred to in paragraph 1 above, in the
determination of a legal remedy for violations of the right to trial
within a reasonable time, the violations of the right which occurred
after 3 March 2004 shall be established.
When establishing the violation of the right referred to
in paragraph 2 above, the Court shall also take into consideration
the length of the judicial proceedings prior to 3 March 2004.”
This
Act entered into force on 21 December 2007, but contained no
reference to the applications involving procedural delay already
lodged with the Court.
D. The relevant domestic court's case-law
Between
1 January 2008 and 30 September 2009 the courts in Montenegro
considered one hundred and two requests for review. Two requests were
withdrawn and eight were being examined. In the same period,
twenty-two actions for fair redress were submitted, out of which
sixteen actions were dealt with and six were still being examined. In
one case the courts awarded the plaintiff non-pecuniary damages for
the length of civil proceedings.
Four
of the requests for review, among the copies provided by the
Government, concerned the length of enforcement proceedings. In two
cases the plaintiffs were informed that the proceedings would be
terminated within the next four months. There is no information in
the provided documents as to whether these time-limits were complied
with. In one case it is unclear whether the enforcement was not
undertaken due to some prior obligations of the parties, and in
another case the judge notified the plaintiff that the enforcement
had since taken place.
In
no case have the plaintiffs attempted to file an appeal following
notifications rendered in accordance with Article 17 of the Act.
With
regard to the case-law, following the action for fair redress, there
were two such actions, among the provided copies, in which the
plaintiffs had sought redress due to the length of enforcement
proceedings. One was declared inadmissible because the plaintiff had
not previously made use of a request for review, and the other was
rejected as premature as the plaintiff had filed his action before
the expiration of the time-limit set in the notification.
E. Family Law Act 1989 (Porodični zakon; published in the
Official Gazette of the Socialist Federal Republic of Montenegro no.
07/89)
Article
68 of this Act provides that, after obtaining the opinion of the SCC,
the court shall decide who will be granted custody of the children,
if there is no agreement between the parents in that respect.
Exceptionally, the court can also decide on the child's contact with
a parent who has not been granted custody if the other parent
prevents him/her from seeing the child. The court shall change these
decisions if the circumstances so require.
Article
333 provides that in proceedings relating to the custody of children,
the court shall ex officio decide on interim measures for the
protection and living arrangements of the children.
Article
343 provides for urgency in forcible enforcements and the need to
protect children as much as possible. If the enforcement cannot be
achieved through fines, children shall be taken and given to the
parent who was granted custody.
F. Family Law Act 2007 (Porodični zakon; published in OGM
no. 01/07)
This
Act entered into force on 1 September 2007, thereby repealing the
Family Law Act 1989. Article 375, however, provides for an identical
provision with regard to forcible enforcement, as per the previous
Act.
G. Enforcement Procedure Act 2004 (Zakon o izvršnom
postupku; published in the Official Gazette of the Republic of
Montenegro – OG RM - no. 23/04)
Article
4 § 1 provides that the enforcement court is obliged to proceed
urgently.
Under
Article 47, if needed, the bailiff may request police assistance;
should the police fail to provide such assistance, the enforcement
court shall inform the Minister of Internal Affairs, the Government,
or the competent parliamentary body.
Articles
224-227 contain, inter alia, provisions relating to the
enforcement of final child custody judgments.
Article
225, while placing special emphasis on the best interests of the
child, provides, in particular, that there shall be an initial period
of three days for voluntary compliance with a child custody order.
Beyond that, however, fines should be imposed and, ultimately, if
necessary, the child should be taken forcibly by the court, in
co-operation with the Social Care Centre.
H. Police Act (Zakon o policiji; published in OG RM no. 28/05)
Pursuant
to Article 7 § 1 the police are obliged to assist other State
bodies in the enforcement of their decisions if there is physical
resistance or such resistance may reasonably be expected.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicant complained under Article 8 of the Convention that due to
the belated enforcement of the final custody judgment of 5 May 2006,
as well as the respondent State's prior failure to enforce the NSCC's
order of
8 March 2005, she had been prevented from exercising her
parental rights in accordance with the relevant domestic legislation.
Article 8 reads as follows:
“1. Everyone has the right to respect for his
private and family life, his home and his correspondence.
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 in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
A. Admissibility
1. Compatibility ratione temporis
The
Government submitted that the Committee of Ministers of the Council
of Europe had decided that Montenegro was a party to the Convention
as of 6 June 2006.
The
applicant made belated comments, which, on that account, were not
admitted to the file.
The
Court has already held that the Convention should be deemed as having
continuously been in force in respect of Montenegro as of 3 March
2004 (see Bijelić v. Montenegro and Serbia, no. 11890/05,
§ 69, 28 April 2009). It sees no reason to depart from this
finding in the present case. The Government's objection must,
therefore, be dismissed.
2. Exhaustion of domestic remedies
(a) Arguments of the parties
The
Government submitted that the applicant had not exhausted all
effective domestic remedies available to her. In particular, she had
failed to lodge an appeal, following the request for review, and an
action for fair redress provided by the Right to a Trial within a
Reasonable Time Act (see paragraph 46 above). Lastly, she had not
made use of the constitutional appeal (see paragraph 43 above).
The
applicant did not file comments within the time-limit set (see
paragraph 63 above).
(b) Relevant principles
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 alleged violations before they are
submitted to the Court.
However,
the only remedies which the Convention requires to be exhausted are
those that relate to the breaches alleged and at the same time are
available and sufficient (see Selmouni v. France [GC], no.
25803/94,
§ 75, ECHR 1999 V). The existence of such remedies
must be sufficiently certain not only in theory but also in practice,
failing which they will lack the requisite accessibility and
effectiveness; it falls to the respondent State to establish that
these various conditions are satisfied (see Vernillo
v.
France, 20 February 1991, § 27, Series A no. 198; and Dalia
v. France, 19 February 1998, § 38, Reports 1998-I).
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 that requirement (see
Dankevich v. Ukraine, no. 40679/98, § 107, 29 April
2003).
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).
(c) Court's assessment
(i) As regards the appeal following the request for
review
The
Court notes that, pursuant to Article 17 of the Right to a Trial
within a Reasonable Time Act, notification is provided as one of the
means of dealing with a request for review (see paragraph 46 above).
The Court further notes that in the present case the domestic court
apparently did resort to such a notification, informing the applicant
that V.K. would be fined “without delay” but that it was
“impossible to say when and how the enforcement proceedings at
issue shall be concluded” (see paragraph 27 above). In
accordance with Article 17, with this notification the applicant's
request for review was considered to be dealt with.
Article
24, however, provides for the right of appeal, inter alia, in
cases where the court fails to deliver the notification to the
applicant within the specified time. Since the notification was duly
delivered to the applicant, she had no statutory right to lodge an
appeal. The domestic courts' case-law in this regard, submitted by
the Government itself, confirms this (see paragraph 50 above).
Therefore, the said appeal cannot be considered an available remedy
in the applicant's case and the Government's objection in this regard
must be dismissed.
(ii) As regards the action for fair redress
Article
31 of the Right to a Trial within a Reasonable Time Act (see
paragraph 46 above) provides for redress in the form of monetary
compensation and/or publishing the judgment that the right to a trial
within reasonable time has been violated. Even assuming that the
applicant could have obtained compensation for the past delay and/or
have had the judgment on the violation of her right to trial within
reasonable time published, the said action was clearly not capable of
expediting the enforcement at issue while it was still pending, which
was clearly the applicant's main concern (see, mutatis mutandis,
V.A.M. v. Serbia,
no. 39177/05, § 86, 13 March 2007).
Therefore, the applicant had had no obligation to make use of this
avenue of redress. In any event, it would appear that the ultimate
enforcement of the judgment in question was primarily, if not
exclusively, the consequence of the present case having been
communicated to the Government rather than the result of any domestic
remedy.
(iii) As regards the constitutional appeal
Pursuant
to Article 48 of the Constitutional Court Act of Montenegro, a
constitutional appeal can be filed against an individual decision
concerning one's human rights and freedoms (see paragraph 43 above).
As the Court understands the said provision, the applicant is
supposed to have a final decision, which by its contents and
substance violates his/her human rights. The applicant is allowed to
file a constitutional appeal against such a decision.
74. The
Court notes that in this case the applicant complains about the
respondent State's continued failure to enforce the final court's
decision. Taking into account that the Government have presented no
case-law to the contrary, the Court considers that the constitutional
appeal cannot be considered an available remedy in cases of
non-enforcement due to there being no “individual decision”
against which such an appeal could be filed.
(iv) Conclusion
The
Court also considers that the complaints are not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention and finds no other ground to declare them inadmissible.
They must therefore be declared admissible.
B. Merits
1. Arguments of the parties
The
Government submitted that, pursuant to Article 68 of the Family Act
in force at the time, ruling on the custody of children was
exclusively in the courts' competence (see paragraph 52 above) from
the moment when the action for divorce was brought. In that context,
the Government submitted that, if the applicant had wanted an interim
decision with regard to the custody of children before the judgment
was rendered, she should have submitted a request to the court to
that effect. The Social Care Centre, according to the Government, had
no competence in that respect, except to provide its opinion on the
matter.
The
Government further noted that the Court of First Instance in Kotor
primarily had the interests of the children in mind, who, “from
the beginning of the dispute” had refused to live with the
applicant, and for whom the forcible transfer would have been an
irremediable trauma, as stated by the BSCC expert. Such conditions,
as submitted by the Government, had required sensitivity on the part
of all involved so that the necessary conditions could be created
with a view to reducing the trauma for the children as much as
possible.
The
applicant's belated submissions were not admitted to the file (see
paragraph 63 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).
Even
though the primary object of Article 8 is to protect the individual
against arbitrary action by the public authorities, there are, in
addition, positive obligations inherent in effective “respect”
for family life (see Keegan v. Ireland, 26 May 1994, §
49, Series A no. 290). In this context, the Court has repeatedly held
that Article 8 includes a right for parents to have measures taken
that will permit them to be reunited with their children and an
obligation on the national authorities to take such action (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; and Sylvester v.
Austria, nos. 36812/97 and 40104/98, § 58, 24 April 2003).
However,
the national authorities' obligation to take measures to facilitate
reunion is not absolute, since the reunion of a parent with children
who have lived for some time with the other parent may not be able to
take place immediately and may require preparatory measures to be
taken. The nature and extent of such preparation will depend on the
circumstances of each case, but the understanding and co-operation of
all concerned are always an important element (see Ignaccolo-Zenide,
cited above, § 94).
The Court, therefore, has to ascertain whether the
national authorities took all such necessary steps to facilitate
reunion as could reasonably be demanded in the special circumstances
of the case (see Ignaccolo-Zenide, cited above, § 96,
Nuutinen v. Finland, cited above, § 128, Hokkanen v.
Finland, 23 September 1994, § 58, Series A no. 299 A,
and Šobota-Gajić v. Bosnia and Herzegovina, no.
27966/06, § 53, 6 November 2007).
In
this connection, the Court states that, in a case such as the present
one, 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 children and the parent who
does not live with them (see Ignaccolo-Zenide, cited above, §
102).
3. The Court's assessment
The
Court considers that, while the applicant could have theoretically
requested the domestic court to render an interim measure on custody
during the proceedings, she was not required to do so pursuant to
Article 333 of the Family Act in force at the time, which provided
for the court to decide on such measures ex officio (see
paragraph 53 above). In addition, had the NSCC considered that it
lacked competence to decide on the matter it would have declared so
and rejected the applicant's requests. Therefore, the first decision
aimed at reuniting the applicant with her children was rendered by
the NSCC on 8 March 2005.
Between
April and June 2005, at the applicant's requests, the NSCC issued
three additional decisions to the same effect. The Court notes,
however, that there has been only one unsuccessful attempt to enforce
the first NSCC decision, which was on 14 March 2005.
The
NSCC decisions became irrelevant on 5 May 2006, when the court's
judgment, granting the custody of A and B to the applicant, became
final. On 12 June 2006 the applicant sought the enforcement of the
judgment. In this context, the Court notes that the first attempt to
fine V.K. for failing to surrender the children took place only on 9
March 2009, and the first attempt to actually enforce the judgment by
forcible transfer took place on 8 October 2009, which is after the
application had been communicated. On 30 November 2009, on the third
attempt, the applicant was reunited with her children.
Therefore,
the impugned situation lasted nearly four years and nine months after
the NSCC's decision was rendered, that is three years and seven
months after the court judgment to the same effect became final.
During this time the competent national authorities had: (a)
attempted only once to enforce the NSCC decision, (b) fined V.K. only
once, two years and nine months after the applicant had sought the
enforcement of the judgment, (c) attempted the forcible transfer only
after the case had been communicated to the respondent Government,
and (d) enforced the judgment within less than three months from the
communication of the case.
Whilst
the Government maintained that the children had refused “from
the beginning of the dispute” to be transferred to the
applicant, the information provided by the Government showed that
there had been no attempt aimed at such a transfer for two years and
nine months. The Government provided no explanation in this regard.
At the same time, there is no indication that this delay can be
attributed to the applicant.
As
noted above, the reunion of a parent with a child who has lived for
some time with the other parent may not be able to take place
immediately and without the necessary preparation, particularly in
the circumstances of A and B's case. However, there is no evidence
that any such preparatory work explained the above-mentioned delays
by the authorities.
Having
regard to the facts of the case, including the passage of time, the
best interests of A and B, the criteria laid down in its own case-law
and the Government's submissions, notwithstanding the State's margin
of appreciation as well as the fact that A and B were eventually
surrendered to the applicant, the Court concludes that the
Montenegrin authorities have failed to make adequate and effective
efforts to execute the NSCC decision and the final court judgment in
a timely manner.
There
has accordingly been a violation of Article 8 of the Convention.
II. OTHER COMPLAINTS
To
the extent that the applicant implicitly complained of the
non-enforcement of the judgment, in that V.K. had not paid the
child-maintenance as specified, the Court notes that the
beneficiaries of such maintenance are, by default, the children. As
the children, although contrary to the judgment, lived with V.K. as
of 5 January 2005 until 30 November 2009, the applicant cannot claim
child maintenance for that period having had no expenses herself in
that respect. Therefore, even assuming that the applicant's complaint
is compatible ratione personae, it must be declared
inadmissible as manifestly ill-founded. As for the period after 30
November 2009, due to the short time which elapsed after the children
had been surrendered, the applicant's complaint is manifestly
ill-founded and must be dismissed pursuant to Article 35 §§
3 and 4 of the Convention. It is also open to the applicant to obtain
a further order from the domestic courts requiring her former spouse
to comply with his maintenance obligations.
III. 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 claimed damages of EUR 50,000 after the expiry of the
time-limit for submitting Article 41 claims.
However,
the Government, with reference to the same amount claimed in the
application form filed by the applicant, nevertheless stated in their
observations on the admissibility and merits that the claim was
excessive and contrary to the case-law of the Court.
The
Court is of the view that it has not been duly substantiated that the
applicant sustained pecuniary damage as a result of the violation of
Article 8. However, the Court accepts that the applicant has suffered
non-pecuniary damage which cannot be sufficiently compensated by the
sole finding of a violation. Making its assessment on an
equitable basis and having regard to the particular circumstances of
the case, the Court awards the applicant EUR 10,000 under this
head.
B. Costs and expenses
The
Court notes that the applicant's claim for costs was submitted after
the expiry of the original deadline and, unlike the claim for
damages, was never the subject of submissions by the Government.
The applicant has therefore failed to comply with Rule 60 §§
2 and 3 of the Rules of Court, and her claim must therefore
be dismissed.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the
complaint concerning the respondent State's belated enforcement of
the final custody judgment and its prior failure to enforce the
interim custody order admissible and the remainder of the
application inadmissible;
Holds that there has been a violation of Article
8 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 10,000 (ten thousand euros) in respect of
non-pecuniary damage, 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
amount 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 applicant's claim for
just satisfaction.
Done in English, and notified in writing on 21 September 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
