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KRIVOSEJ v. SERBIA - 42559/08 [2010] ECHR 563 (13 April 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/563.html
Cite as:
[2010] ECHR 563
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SECOND
SECTION
CASE OF KRIVOŠEJ v. SERBIA
(Application
no. 42559/08)
JUDGMENT
STRASBOURG
13
April 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 Krivošej v.
Serbia,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
Dragoljub
Popović,
András Sajó,
Nona
Tsotsoria, judges,
and Françoise Elens-Passos,
Deputy
Section Registrar,
Having
deliberated in private on 23 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 42559/08) against Serbia
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Serbian national of Russian origin, Ms Ana
Krivošej (“the applicant”), on 4 August 2008.
The
applicant was represented by Ms A. Stojanović, a lawyer
practising in Niš. The Serbian Government (“the
Government”) were represented by their Agent, Mr S. Carić.
The
President of the Chamber gave priority to the application in
accordance with Rule 41 of the Rules of Court.
The
applicant complained about the non-enforcement of a final access
order in a pressing child-related matter.
On
20 March 2009 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
The
applicant was born in 1969 and lives in Niš, Serbia.
The
facts of the case, as submitted by the parties, may be summarised as
follows.
A. Introduction
On
23 May 1993 the applicant married N.C. and on 1 February 1994 their
son O.C. was born.
The
applicant and N.C., at some point thereafter, started having marital
problems.
In
August 1999 the applicant moved out, but O.C. apparently remained
with N.C.
B. The civil proceedings
In
2000 the applicant filed a claim with the Municipal Court (Opštinski
sud) in Niš, seeking the dissolution of the marriage, the
custody of O.C. and a contribution to his maintenance.
On
7 October 2002 the Municipal Court: (i) dissolved the marriage; (ii)
granted custody of O.C. to N.C.; (iii) ordered the applicant to pay
monthly child maintenance; and (iv) ruled that the applicant could
spend every first and third weekend of each month with O.C., as well
as a part of his winter and summer holidays, respectively. This
judgment became final on 18 November 2002.
C. The judicial enforcement proceedings and the
proceedings before the Social Care Centre
Having
been refused access to O.C., on 5 February 2003 the applicant filed
an enforcement request with the Municipal Court.
On
10 February 2003 the Municipal Court issued an enforcement order.
On
30 July 2003 the Municipal Court fined N.C. in the amount of 5,000
Serbian dinars (RSD) for failing to comply therewith.
On
21 May 2003 the Social Care Centre (Centar za socijalni rad)
in Niš modified the applicant's
rights, granting her access to O.C. every other Saturday between 9
a.m. and 2 p.m. At the same time, however, it placed N.C. under
formal supervision (nadzor nad vršenjem roditeljskog prava)
for refusing to comply with the applicant's access rights.
On
28 August 2003 this decision was confirmed on appeal.
On
17 November 2003 the Municipal Court repealed its decisions of 10
February 2003 and 30 July 2003.
On
5 April 2004 the Social Care Centre informed the Municipal Court of
its decision adopted on 21 May 2003 and observed that, despite her
keen interest, the applicant had only been able to see her child
briefly at the centre's own premises.
On
16 April 2004 the Municipal Court ordered the enforcement of the
judgment rendered on 7 October 2002, as amended by the decision of
the Social Care Centre of 21 May 2003. In so doing, it held that,
should N.C. fail to respect the applicant's access rights, he would
be fined in the amount of RSD 5,000 and, further, that forcible
enforcement might itself ultimately be called for.
On
28 October 2004 the Municipal Court confirmed its decision of 16
April 2004.
Following
N.C.'s two brief appearances before the Municipal Court on 23
September 2005 and 5 October 2006, on an unspecified date the court
informed the applicant that her case file could not be found.
On
13 March 2008 the applicant therefore requested the reconstruction of
the case file and on 5 June 2008 the Municipal Court accepted this
request.
On
2 October 2008, however, the Municipal Court repealed its own
decision, noting that the case file had been found in the meantime.
Simultaneously, the court ordered the enforcement of the fine imposed
previously and stated that a new fine in the amount of RSD 10,000
would be imposed should N.C. fail to comply with the order of 16
April 2004 within an additional period of three days. Lastly, the
court stated that should repeated fines fail to secure the needed
compliance, the applicant's access rights would have to be executed
forcibly.
On
2 December 2008 the Social Care Centre informed the Municipal Court
that the applicant had had no contact with O.C. since September 2007,
which is when N.C. and O.C. had moved from Niš to Belgrade
without informing the applicant of their new address.
On
30 April 2009 the police informed the Municipal Court that N.C. had
registered his residence in Belgrade, and on 5 June 2009 they
provided the court with his new address.
On
4 June 2009 the applicant's case file was forwarded to the Fourth
Municipal Court (Četvrti
opstinski sud) in Belgrade.
On
30 July 2009 the Fourth Municipal Court confirmed that N.C. had never
moved to the address in question.
On
1 October 2009 N.C. informed the Fourth Municipal Court about his
current address in Belgrade.
On
the same date the Fourth Municipal Court ordered that the decision of
2 October 2008 be served on N.C. and carried out.
Throughout
the proceedings the applicant repeatedly complained about the
domestic courts' inability to effectively enforce her access rights.
D. Other relevant facts
On
25 July 2007 the Municipal Court in Niš terminated the
employment of its bailiff in charge of the applicant's case, and on
20 May 2008 discovered the applicant's missing case file under his
desk.
II. RELEVANT DOMESTIC LAW
A. Enforcement procedure legislation
Article
209 of the Enforcement Procedure Act of 2000 (Zakon o izvršnom
postupku; published in the Official Gazette of the Federal
Republic of Yugoslavia - 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 and/or access order. Beyond that,
however, fines shall be imposed and, ultimately, if necessary, the
child taken forcibly, in co-operation with the Social Care Centre.
The
Enforcement Procedure Act of 2004 (Zakon o izvršnom
postupku; published in the Official Gazette of the Republic of
Serbia - OG RS - no. 125/04) entered into force in 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.
B. Other relevant legislation
Other
relevant provisions are set out in the case of Vinčić
and Others v. Serbia (nos. 44698/06,
44700/06, 44722/06, 44725/06, 49388/06, 50034/06, 694/07, 757/07,
758/07, 3326/07, 3330/07, 5062/07, 8130/07, 9143/07, 9262/07,
9986/07, 11197/07, 11711/07, 13995/07, 14022/07, 20378/07, 20379/07,
20380/07, 20515/07, 23971/07, 50608/07, 50617/07, 4022/08, 4021/08,
29758/07 and 45249/07, §§ 24-35,
1 December 2009).
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 AND 8 OF THE CONVENTION
The
applicant complained about the non-enforcement of the final access
order adopted on 7 October 2002, as modified on 21 May 2003.
Being
the master of the characterisation to be given in law to the facts of
any case before it, the Court considers that the above complaint
falls to be examined under Articles 6 § 1 and 8 of the
Convention (see Akdeniz v. Turkey, no. 25165/94, § 88,
31 May 2005, and Felbab v. Serbia,
no. 14011/07, 14 April 2009).
The
relevant provisions of the said Articles read as follows:
Article 6 § 1
“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 ...”
Article 8
“1. Everyone has the right to respect for his
[or her] 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.”
A. Admissibility
The
Government invited the Court to reject the application for
non-exhaustion of domestic remedies. In particular, they submitted
that the applicant had failed to lodge an appeal with the
Constitutional Court under Article 170 of the new Serbian
Constitution.
The
applicant maintained that she had complied with the exhaustion
requirement.
The
Court has already held that the constitutional remedy in question
should, in principle, be deemed effective within the meaning of
Article 35 § 1 of the Convention in respect of all applications
introduced as of 7 August 2008 (see Vinčić and Others v.
Serbia, cited above, § 51). Since the application in the
present case was brought before that date, on 4 August 2008, and
given that it finds no reason to depart from its conclusion in
Vinčić, the Court considers that the Government's
objection must be dismissed.
The
Court further notes that the applicant's complaint, considered under
Articles 6 and 8 of the Convention, is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It also
notes that it is not inadmissible on any other ground. It must
therefore be declared admissible.
B. Merits
1. As regards the applicant's complaint considered
under Article 6 § 1 of the Convention
The
Government maintained that there had been no violation of Article 6 §
1 of the Convention. The impugned delay was partly attributable to
the court's bailiff who was ultimately sanctioned for his
malfeasance, and the Social Care Centre did its utmost to enforce the
final judgment in question. Lastly, the Government emphasised that
the applicant has not been deprived of all contacts with her child
and pointed out that her former husband's new address was only
established in October 2009.
The
applicant reaffirmed her complaint.
The
Court recalls its settled case-law to the effect that Article 6 §
1 of the Convention, inter alia, protects the implementation
of final, binding judicial decisions, which, in States that accept
the rule of law, cannot remain inoperative to the detriment of one
party. Accordingly, the execution of a judicial decision cannot be
prevented, invalidated or unduly delayed (see, among many other
authorities, Felbab v. Serbia,
cited above, § 61).
Further,
the Court notes that, irrespective of whether enforcement is to be
carried out against a private or State actor, it is up to the State
to take all necessary steps to execute a final court judgment as well
as to, in so doing, ensure the effective participation of its entire
apparatus, failing which it will fall short of the requirements
contained in Article 6 § 1 (see, mutatis mutandis, in the
child custody context, Pini and Others v. Romania, nos.
78028/01 and 78030/01, §§ 174-189, ECHR 2004-V, and Felbab
v. Serbia, cited above, § 62).
Turning
to the present case, the Court firstly observes that the final access
order of 7 October 2002, as modified on 21 May 2003, has remained
unenforced to date. Secondly, having adopted the enforcement order,
the domestic courts were under an obligation to proceed ex
officio. Thirdly, Serbia ratified the Convention on 3 March 2004,
meaning that the proceedings in question have been within the Court's
competence ratione temporis for a period of almost five years.
Fourthly, during this time, the domestic courts fined N.C. only once,
without ever having collected this fine, misplaced the case file,
and, most strikingly, took no substantive steps between 28 October
2004 and 2 October 2008. Fifthly, the bailiff in question was
employed by the Municipal Court in Niš, which is why his
inaction is attributable to the respondent State irrespective of
whether his employment was subsequently terminated. Sixthly, it took
the Serbian authorities more than two years to ascertain N.C.'s new
address in Belgrade, the applicant herself having apparently been
afforded no contact with her child since September 2007. Lastly, it
is noted that throughout the proceedings the applicant has done
everything in her power to have the final access order enforced,
whilst the domestic authorities have failed to make use of any
coercive measures in spite of the clearly uncooperative attitude
expressed by the other party, including N.C.'s apparent attempt to
conceal his new place of residence between September 2007 and October
2009. Notwithstanding the sensitivity of the impugned
proceedings, as well as the fact that the applicant was able to see
her child occasionally prior to September 2007, the Court concludes
that the Serbian authorities did not act diligently or take
sufficient steps to execute the final access order of 7 October
2002, as modified on 21 May 2003. There has, consequently, been
a violation of Article 6 § 1 of the Convention.
2. As regards the applicant's complaint considered
under Article 8 of the Convention
The
Government relied on their arguments outlined at paragraph 43 above.
The
applicant reaffirmed her complaint.
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).
Article
8 further 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).
What
is decisive, therefore, is whether the national authorities have
taken all necessary steps to facilitate the execution of a
child-related court decision as can reasonably be demanded in the
specific 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).
The
Court lastly recalls that, although coercive measures 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).
Turning
to the matter at hand, in view of the above-cited jurisprudence, the
specific facts of the applicant's case, and the parties' own
submissions already considered under Article 6 (see paragraph 47
above), the Court finds that the Serbian authorities have failed to
do everything in their power which could reasonably have been
expected of them. In particular, although the applicant had sporadic
contact with her child until September 2007, and seemingly none
thereafter, her access rights as specified in the final access order
of 7 October 2002 and modified on 21 May 2003, were never
properly enforced. The legitimate interest of the applicant to
develop and sustain a bond with her child and his own long-term
interest to the same effect were thus not duly considered (see,
mutatis mutandis, Görgülü
v. Germany, no. 74969/01, § 46, 26 February
2004. Consequently, the Court concludes that the applicant has
suffered a separate breach of the right to respect for her family
life as guaranteed by Article 8 (see, mutatis
mutandis, McMichael v. the United Kingdom, judgment
of 24 February 1995, Series A no. 307-B, § 91; see
also Felbab v. Serbia, no. 14011/07, § 69, 14 April
2009).
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
Under
Article 13 of the Convention, the applicant complained that she has
had no effective domestic remedy to secure her access rights.
The
Government contested that argument.
Having regard to its findings in respect of Articles 6
and 8 of the Convention, the Court declares this complaint admissible
but considers that it is not necessary to examine separately whether,
in this case, there has also been a violation of Article 13 (see,
mutatis mutandis,
Ilić v. Serbia, no. 30132/04, §§ 96 and
106, 9 October 2007).
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
Finally,
under Article 14 of the Convention, the applicant complained about
being discriminated against by the Serbian authorities on the bases
of her Russian origin and her indigence.
The
Government contested the applicant's submissions.
In
view of the facts of the instant case, the Court finds that the
available evidence is insufficient for it to conclude that the
applicant has indeed been discriminated against on any of the grounds
prohibited by Article 14. It follows that this complaint is
manifestly ill-founded and must be rejected in accordance with
Article 35 §§ 3 and 4 of the Convention.
IV. 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 20,000 euros (EUR) in respect of non-pecuniary
damage.
The
Government contested that claim.
The
Court sees no reason to doubt that the applicant suffered distress as
a result of the non-enforcement of her access rights, which is why a
finding of a violation alone would not constitute sufficient just
satisfaction within the meaning of Article 41.
Having
regard to the above and on the basis of equity, as required by
Article 41, the Court awards the applicant EUR 7,300 under this head.
Lastly,
the Court considers that the Government should, with particular
diligence and by appropriate means, secure the effective and speedy
enforcement of the final access order of 7 October 2002, as modified
on 21 May 2003 (see, mutatis mutandis, Jevremović v.
Serbia, no. 3150/05, § 135, 17 July 2007).
B. Costs and expenses
The
applicant did not specify her claim in this respect. Accordingly, the
Court makes no award under this head.
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, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaints considered under
Articles 6 § 1, 8 and 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 of the Convention;
Holds that there is no need to examine
separately the complaint under 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 7,300
(seven thousand three hundred euros), plus any tax that may be
chargeable, in respect of the non-pecuniary damage suffered, to be
converted into Serbian Dinars at the rate applicable at the date of
settlement;
(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 the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 13 April 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy
Registrar President
