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GLUHAKOVIC v. CROATIA - 21188/09 [2011] ECHR 645 (12 April 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/645.html
Cite as:
[2011] ECHR 645
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FIRST
SECTION
CASE OF GLUHAKOVIĆ v. CROATIA
(Application
no. 21188/09)
JUDGMENT
STRASBOURG
12 April
2011
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 Gluhaković v.
Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Anatoly
Kovler,
President,
Nina
Vajić,
Christos
Rozakis,
Peer
Lorenzen,
Elisabeth
Steiner,
Khanlar
Hajiyev,
George
Nicolaou,
judges,
and Søren Nielsen,
Section Registrar,
Having
deliberated in private on 22 March 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 21188/09) against the Republic
of Croatia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Croatian national, Mr Stjepan Gluhaković
(“the applicant”), on 7 April 2009.
The
applicant was represented by Mr S. Babić, a lawyer practising in
Zagreb. The Croatian Government (“the Government”) were
represented by their Agent, Ms Š. StaZnik.
On
8 June 2010 the President of the First Section decided to communicate
the complaint concerning the applicant’s right to respect for
his private and family life to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1960 and lives in Rijeka.
In
February 1999 the applicant married A. However, in July, while she
was pregnant, A. left the applicant and on 25 December 1999 gave
birth to a daughter, I.K.
Several
separate proceedings concerning contact between the applicant and his
daughter I.K. were conducted before the Rijeka Municipal Court as
well as before the Rijeka Social Welfare Centre (hereinafter “the
Social Welfare Centre”).
1. The applicant’s request for contact with his
daughter before the Rijeka Social Welfare Centre
At
the beginning of 2000 the applicant asked the Social Welfare Centre
to issue a decision regulating his contact with I.K.
On
26 April 2000 the applicant complained to the Social Welfare Centre
that he saw his daughter only for one hour a week and that the child,
who had started to recognise human faces, was scared of him because
his face was not familiar to her. He requested to be allowed to see
the child every four days, because he worked in Italy and his work
schedule was organised in such a way that he worked for three whole
days and then had a fourth day off.
On
4 May 2000 the applicant saw a psychiatrist at the suggestion of the
Social Welfare Centre’s personnel. A medical report drawn up by
the psychiatrist indicated that the applicant was suffering from
paranoid psychosis and recommended that contact between the applicant
and I.K. be supervised by the child’s mother or another person.
The psychiatrist reiterated that conclusion in his report of 1 June
2000.
On
10 June 2000 the Social Welfare Centre issued a decision giving
custody of I.K. to the child’s mother and ordering that
meetings between the applicant and I.K. take place every Tuesday –
between 9.30 a.m. and 10.30 a.m. at the Rijeka Counselling
Centre for Marriage, Family and Youth (hereinafter “the
Counselling Centre”) in the presence of the child’s
mother and an employee of the Counselling Centre.
On
16 June 2000 the Ministry for Work and Social Welfare quashed the
first-instance decision on the ground that it was necessary to hold
an oral hearing before adopting a decision in the case. Nevertheless,
the meetings between the applicant and I.K. were arranged at the
Counselling Centre.
On
19 January 2003 the Social Welfare Centre issued a decision ordering
meetings between the applicant and I.K. every Tuesday – between
9.30 a.m. and 11.30 a.m. at the Counselling Centre in the presence of
an employee of the Counselling Centre.
The
applicant lodged an appeal on 19 January 2003 which was dismissed on
7 December 2004 by the Ministry of Health and Social Welfare.
2. The contact issue in the civil proceedings before
the Rijeka Municipal Court in the course of the divorce and custody
proceedings
Meanwhile,
on 21 March 2000 A. brought a civil action in the Rijeka Municipal
Court seeking a divorce from the applicant. On 24 July 2002 the
Rijeka County Court adopted a divorce judgment ordering the applicant
to pay maintenance for I.K. and also granting him contact with I.K.
every Tuesday between 9.30 a.m. and 11.30 a.m. in the presence of a
third person. The applicant lodged an appeal arguing, inter alia,
that it was difficult for him to come to Rijeka every Tuesday, due to
his work schedule in Italy. He further explained that in order to see
his daughter on Tuesdays, he often had to drive at night and was
obliged to ask his colleagues to replace him at work, which caused
him significant difficulties.
On
15 January 2003 the Rijeka County Court quashed the part of the
judgment concerning contact between the applicant and I.K. and that
part of the case was remitted to the Municipal Court.
For
the purposes of the resumed proceedings before the Municipal Court,
on 2 March 2005 the Counselling Centre drew up a report on the
meetings between the applicant and I.K. The report stated that the
applicant and his daughter had been meeting regularly on the
Counselling Centre’s premises since June 2000 and that they had
developed a warm personal relationship. However, in view of the
child’s age and needs, further meetings on the Counselling
Centre’s premises would not be possible because the premises
were not considered appropriate.
At
a hearing held on 6 September 2005 a psychologist from the
Counselling Centre, S.M., stated that the meetings between the
applicant and his daughter had been held in the Centre’s
kitchen or offices of its employees and that the Centre had no
suitable space for the meetings.
That
opinion was reiterated in a further report of 8 November 2005.
In
the resumed proceedings the Rijeka Municipal Court gave judgment on
30 November 2006 granting contact between the applicant and I.K.
every Tuesday – between 9.30 a.m. and 11.30 a.m. in the weeks
when I.K. attended school in the afternoon, and between 3.30 p.m. and
5.30 p.m. when I.K. attended school in the morning – at
the Counselling Centre, in the presence of a member of staff. The
Municipal Court based its decision on reports by a psychologist and a
psychiatrist on the applicant’s mental health, commissioned for
the purposes of the proceedings. The reports established that the
applicant suffered from paranoid psychosis and stipulated that
contact between him and I.K. should be supervised. The Municipal
Court made no comments as regards the applicant’s argument
about the time of the meetings and his work schedule.
As
regards the place of the meetings, the relevant part of the judgments
reads:
“... this court has ordered that contact ...
between the child I.K.G. and her father still be held at the premises
of the Counselling Centre, under the supervision of a third person,
to be designated by ... the Welfare Centre ... because it finds that
this decision is in the interests of the welfare of the child. An
extension of [the father’s] parental rights ... is possible on
the condition that he undergoes the treatment recommended in the
report by the expert [in psychiatry].
This court has ordered that contact take place on the
premises of the Counselling Centre given that during these
proceedings the Welfare Centre did not make an adequate proposal as
to the premises on which contact – which should be limited in
view of the father’s diagnosis – should take place. This
court has also taken into account the fact that the [child] attends
school on a changing schedule and has ordered contact accordingly
...”
On
19 December 2006 the applicant lodged an appeal, in which he again
explained the situation regarding his work schedule. For that reason
he sought an order for contact with I.K. every fourth day for a
duration of ten hours, or every eighth day, with I.K. spending the
night at his home. He also requested to spend half of the winter and
summer school holidays, half of all bank holidays, and half of
Christmas Day, which was also I.K.’s birthday, with her.
On
9 March 2007 the Rijeka County Court upheld the judgment of the
first-instance court. It made no comments as to the applicant’s
arguments related to his work schedule in Italy. The relevant part of
the judgment concerning a suitable place for meetings between the
applicant and his daughter reads:
“On the basis of the report by the Rijeka Welfare
Centre of 28 July 2005 the first- instance court established that the
[opinion of the Welfare Centre] was that the meetings between the
applicant and his daughter could no longer be held at the premises of
the Counselling Centre because it was no longer suitable for the
child’s needs and in this respect the [first-instance] court
heard evidence from witness S.M., a psychologist at the Counselling
Centre. On the basis of her evidence the first-instance court
established that on several occasions the Rijeka Welfare Centre had
sought the opinion of the Counselling centre about the meetings
between the applicant and his daughter; that the witness had actively
participated in these meetings; that the relationship between the
applicant and his daughter was good; and that the staff of the
Counselling centre were of the opinion that the decision by the
Welfare Centre concerning contact should be altered, an opinion with
which she personally agreed, in particular in view of the passage of
time since the last decision by the Welfare Centre, that the daughter
had advanced in age and that the premises of the Counselling Centre
were no longer suitable. However, she had no idea or suggestion as to
a suitable location for the meetings or as to whether the presence of
a third person was necessary. Finally, [she was of the opinion] that
the meetings could also be held outside [the centre], but in the
presence of a third person given that the applicant suffered from
certain disorders, [which could lead to him acting overly]
suspicious.
...
On the basis of a further opinion by ... expert [in
psychiatry] M.B. of 6 November 2006 the first-instance court
established that ... there were no reasons to restrict the rights the
applicant had thus far enjoyed in connection with his contact with
his daughter, and that a possible extension of his parental rights
could be granted on the condition that he cooperated in his medical
treatment.
Taking the above-mentioned report as a starting point
... the [first-instance] court ordered that the meetings between
I.K.G. and the applicant should continue at the premises of the
Counselling Centre in the presence of an expert ... since during the
proceedings the Welfare Centre had made no adequate proposal as to
the premises on which contact, which, in view of the applicant’s
diagnosis, should be restricted, should take place. The
[first-instance] court found that that decision had also taken into
account that the daughter attended school on a changing schedule and
ordered contact with her father accordingly. An extension of his
parental rights ... was possible on the condition that he undergo
treatment, as recommended in the opinion of the expert.
...
... in its reasoning the first-instance court cites
correct and valid reasons which this court endorses completely. ...
the first-instance court ordered that the meetings between the
applicant and his daughter were to be held on the premises of the
Counselling Centre, because during the proceedings the Welfare Centre
did not make an adequate proposal as to suitable premises for those
meetings ...”.
On
5 June 2007 the applicant lodged a constitutional complaint. Inter
alia, he reiterated his arguments about the time of the meetings
with I.K. and his work schedule and the arguments concerning the
suitability of the premises for their meetings.
On
25 September 2008 the Constitutional Court dismissed the
applicant’s constitutional complaint. It made no comments as to
the applicant’s arguments about the time of the meetings and
his work schedule and his arguments concerning suitable premises for
the meetings.
3. The applicant’s further requests concerning
contact between the applicant and I.K. before the Rijeka Municipal
Court
(a) First set of proceedings
In
the meantime, and subsequent to the judgment of the Rijeka County
Court of 9 March 2007 (see paragraph 22 above) on 27 August 2007 the
applicant sought the Rijeka Municipal Court to change the decision on
contact between him and I.K. in view of his work schedule, and in
view of the statement of the Counselling Centre that there was no
suitable space there for meetings between the applicant and I.K. He
also stated that on 23 July 2007 the Counselling Centre had
informed him that meetings were no longer possible on its premises.
The applicant asked that meetings between him and I.K. be held in his
flat in Rijeka.
In
his submissions of 6 September 2007 the applicant complained that he
had not seen I.K. since July 2007 because the Counselling Centre had
been closed.
At
a hearing held on 29 October 2007 the applicant stated that he had
had no contact with I.K. for the past three months.
On
29 October 2008 the Rijeka Municipal Court ordered contact between
the applicant and I.K. one day a week for two hours on the premises
of the Rijeka Social Welfare Centre in the presence of J.T., a
retired special needs expert. The relevant part of the decision
reads:
“... this court has ordered that the meetings
[between the applicant and his] daughter shall take place one day a
week for a duration of two hours, depending on the child’s
school activities and the day when the father is in Croatia. Since
the father is free every fourth day, because he works for three whole
days, he is always free on one day of the week.
Since the applicant had no adequate suggestion as to the
premises of the meetings, this court holds that the meetings are to
be held on the premises of the Rijeka Social Welfare Centre, which is
the most suitable place [in terms of] space for the meetings.”
On
7 January 2009 the applicant lodged an appeal with the Rijeka County
Court complaining that the meetings were not possible at the Social
Welfare Centre and asking that the meetings be held in his flat in
Rijeka. He also complained that for the past seventeen months he had
had no contact with I.K.
On
20 January 2009 the Social Welfare Centre submitted to the Rijeka
County Court that they had no suitable place for meetings between the
applicant and I.K. since, owing to a shortage of space, two to three
staff members shared the same office. The only space where the
applicant and I.K. could meet was the corridor, which, in the
Centre’s view, was not a suitable location.
On
3 November 2009 the Rijeka County Court upheld the decision of the
Rijeka Municipal Court of 29 October 2008 and specified that meetings
be held between the applicant and I.K. every Thursday – between
9.30 a.m. and 11.30 a.m. in the weeks when I.K. attended school
in the afternoon, and between 3.30 p.m. and 5.30 p.m. when I.K.
attended school in the morning – at the Social Welfare Centre,
in the presence of J.T. The relevant part of the decision reads:
“The assessment of the first-instance court as
regards the place for the meetings is correct ...
... the first-instance court correctly assessed that, in
view of the circumstances of the case, the most suitable place for
the meetings could for now only be the premises of a State
institution, since an institutional setting would enable an
appropriate response to made to any unexpected situation. ...
... this court finds that the [Rijeka Social Welfare
Centre] as a public institution responsible for ... implementation of
measures aimed at protecting the interests of minor children, is
obliged to enforce such measures, including the supervision of
meetings between children and their parents, and to ensure that all
necessary conditions are met. This includes [providing] the premises
for meetings where they cannot be organised in a different manner.
...
... this court finds that it is in the interest of the
daughter, irrespective of her current age ..., to meet her father
every Thursday for two hours, depending on her school schedule,
because Thursday is, owing to the child’s weekly schedule, the
most appropriate day.”
(b) Second set of proceedings
On
7 May 2009, while his appeal against the decision of the Municipal
Court was still pending, the applicant again requested the Rijeka
Municipal Court to change its decision on contact between him and
I.K. He relied on the above allegations of the Centre about the
shortage of space.
The
applicant also reiterated his arguments as regards his work schedule.
On
8 March 2010 the Rijeka Municipal Court ordered contact between the
applicant and I.K. once a week when the applicant was free for a
duration of three hours in the presence of a third person. The
parents were to find a solution as to the place of the meetings.
The
applicant alleged that this judgment was not properly enforced
because no suitable place for the meetings was found and the child’s
mother refused to let him meet I.K. in his flat.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The
relevant articles of the Croatian Constitution (Ustav Republike
Hrvatske, Official Gazette no. 85/2010. of 9 July 2010,
consolidated text) provide:
Article 35
“Everyone has the right to respect and legal
protection of his or her private and family life ...”
The
relevant part of the Family Act from 1998 (Obiteljski zakon,
Official Gazette no 162/1998), in force until 22 July 2003, reads:
Section 99
“When parents do not live together a social
welfare centre shall decide with which parent the child shall live
and also order the manner and time of the contact with the other
parent, where it is not decided by this Act that such decision is to
be adopted by a court.
...”
The
relevant part of the Family Act (Obiteljski zakon, Official
Gazette nos. 116/2003, 17/2004, 136/2004 and 107/2007) reads:
Section 100
“(1) When parents do not live together a court
shall decide with which parent the child shall live and also order
the manner and time of the contact with the other parent.
(2) In order to ensure the child’s welfare contact
and meetings between the child and the parent he or she is not living
with may be restricted or banned, and in view of the circumstance of
each case a court may also designate a person who shall be present
during contact.
...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicant complained that the national authorities had not fulfilled
their positive obligation of ensuring that his right to contact with
I.K. was effective. He relied on Article 8 of the Convention, which
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. Exhaustion of domestic remedies
(a) The parties’ arguments
The
Government argued that the applicant had not exhausted all available
domestic remedies because he had failed to lodge an administrative
complaint against the decision of the Ministry of Health and Social
Welfare of 7 December 2004. He had also failed to exhaust the
available remedies in respect of the two sets of non-contentious
proceedings conducted before the Rijeka Municipal Court because he
had failed to lodge a constitutional complaint.
The
applicant argued that he had exhausted all available remedies.
(b) The Court’s assessment
(i) General principles
The
Court reiterates that in accordance with Article 35 § 1 of the
Convention, it may only deal with an issue after all domestic
remedies have been exhausted. The purpose of Article 35 is to afford
the Contracting States the opportunity of preventing or putting right
the violations alleged against them before those allegations are
submitted to the Court (see, for example, Hentrich v. France,
22 September 1994, § 33, Series A no. 296-A, and Remli
v. France, 23 April 1996, § 33, Reports 1996-II).
Thus, the complaint submitted to the Court must first have been made
to the appropriate national courts, at least in substance, in
accordance with the formal requirements of domestic law and within
the prescribed time-limits. To hold otherwise would mean duplicating
the domestic process with proceedings before the Court, which would
hardly be compatible with the subsidiary nature of the Convention
(see Gavril Yosifov v. Bulgaria, no. 74012/01, § 42,
6 November 2008). Nevertheless, the obligation to exhaust domestic
remedies requires only that an applicant make normal use of remedies
which are effective, sufficient and accessible in respect of his or
her Convention grievances (see Balogh v. Hungary,
no. 47940/99, § 30, 20 July 2004, and John
Sammut and Visa Investments Limited v. Malta (dec.), no.
27023/03, 28 June 2005).
The
Court reiterates further that where an applicant has a choice of
domestic remedies, it is sufficient for the purposes of the rule of
exhaustion of domestic remedies that he or she make use of a remedy
which is not unreasonable and which is capable of providing redress
for the substance of his or her Convention complaints (see, inter
alia, Hilal v. the United Kingdom (dec.), no. 45276/99, 8
February 2000, and Krumpel and Krumpelová v. Slovakia,
no. 56195/00, § 43, 5 July 2005). Indeed, where an
applicant has a choice of remedies and their comparative
effectiveness is not obvious, the Court interprets the requirement of
exhaustion of domestic remedies in the applicant’s favour (see
Budayeva and Others v. Russia, nos. 15339/02, 21166/02,
20058/02, 11673/02 and 15343/02, § 110, ECHR 2008-...
(extracts), and the cases cited therein). Once the applicant has used
such a remedy, he or she cannot also be required to have tried others
that were available but probably no more likely to be successful (see
Ivan Vasilev v. Bulgaria, no. 48130/99, § 56,
12 April 2007, and the cases cited therein).
(ii) Application of these principles to
the present case
The
Court agrees with the Government that the applicant did not use all
remedies envisaged by the national law in each and every set of the
proceedings concerning his contact rights. It is true that, in
respect of the decisions adopted before the administrative
authorities, he failed to lodge an administrative complaint before
the Administrative Court and, in the event of the unfavourable
outcome of these proceedings, also a separate constitutional
complaint.
It
is also true that the applicant did not lodge a constitutional
complaint against the Rijeka County Court’s decision of 3
November 2009. However, the Court also notes that the main argument
of the applicant was that the national courts repeatedly ignored his
request that his visiting rights be adjusted to suit his work
schedule and that the Social Welfare Centre had no suitable place for
meetings with his daughter. These very same issues were the subject
of his constitutional complaint (see above, paragraph 23) lodged in
the context of the civil proceedings instituted on 21 March 2000 and
thus the Constitutional Court had an opportunity to examine them.
However, on 25 September 2008 it dismissed the applicant’s
constitutional complaint.
In
these circumstances the Court is of the view that the applicant was
not required to lodge another constitutional complaint against the
Rijeka County Court’s decision of 3 November 2009 or further
remedies in respect of the decision by the Rijeka Municipal Court of
8 March 2010, since the very same issues were at stake.
Furthermore,
the Court notes that the main proceedings at issue are the regular
civil proceedings, which commenced on 21 March 2000, conducted before
the ordinary courts, and that in those proceedings a decision on
contact between the applicant and I.K. had also been taken. In the
course of those proceedings the applicant used all available
remedies, including a constitutional complaint. It follows that the
Government’s objection must be rejected.
2. The applicant’s victim status
The
Government argued that the applicant was not a victim of the
violation claimed because he had been seeing I.K. on the premises of
the Counselling Centre.
The
applicant argued that his problems with maintaining regular contact
in adequate premises had persisted since 2000 and that since July
2007 he had not seen I.K.
The
Court notes that the applicant complained that the national
authorities had not taken into account his work schedule in Italy
without any good reason and that since the Counselling Centre had
been closed in July 2007, he had had no contact with his daughter.
The Court considers that the applicant’s allegations warrant
examination on the merits and therefore rejects the Government’s
objection.
3. Conclusion
The
Court notes that the complaint as regards the proceeding conducted
before the ordinary courts is not manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention. It further notes
that it is not inadmissible on any other grounds. It must therefore
be declared admissible.
B. Merits
1. The parties’ arguments
The
applicant argued that when deciding when contact between him and his
daughter was to take place, the national authorities had ignored his
arguments concerning his work schedule and had not found a proper
place for meetings between them even though he had suggested that the
meetings be held in his flat in Rijeka.
The
Government argued that, owing to the applicant’s mental
illness, contact between him and I.K. had to be supervised. They
further argued that the national authorities had never prevented the
applicant’s contact with I.K. The meetings between them had
been held on the premises of the Counselling Centre. The meetings had
had to be scheduled on a fixed day in the week because a child had
needed to maintain a regular schedule.
2. The Court’s assessment
(a) 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, and
Fuşcă v. Romania, no. 34630/07, § 32, 13 July
2010).
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 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, 26 May 1994, § 49,
Series A no. 290).
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, cited above,
§ 94; Nuutinen v. Finland, no. 32842/96, § 127,
ECHR 2000-VIII; and Iglesias Gil and A.U.I. v. Spain,
no. 56673/00, § 49, ECHR 2003-V). This applies not
only to cases dealing with the compulsory taking of children into
public care and the implementation of care measures (see, inter
alia, Olsson v. Sweden (no. 2), 27 November 1992, § 90,
Series A no. 250), but also to cases where contact and residence
disputes concerning children arise between parents and/or other
members of the children’s family (see, for example, Hokkanen
v. Finland, 23 September 1994, § 55, Series A no. 299).
The
obligation of the national authorities to take measures to facilitate
contact by a non-custodial parent with children after divorce is not,
however, absolute (see, mutatis mutandis, Hokkanen,
cited above, § 58). The establishment of contact may not be
able to take place immediately and may require preparatory or
phased measures. The co-operation and understanding of all concerned
will always be an important ingredient. While national authorities
must do their utmost to facilitate such co-operation, any obligation
to apply coercion in this area must be limited since the interests as
well as the rights and freedoms of all concerned must be taken into
account, and more particularly the best interests of the child and
his or her rights under Article 8 of the Convention (see Hokkanen,
cited above, § 58, and Olsson (no. 2), cited above, §
90).
What
is decisive is whether the national authorities have taken all
necessary steps to facilitate the execution that can reasonably be
demanded in the specific circumstances of each case (see, mutatis
mutandis, Hokkanen, cited above, § 58;
Ignaccolo-Zenide, cited above, § 96; Nuutinen,
cited above, § 128; and 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 does not live with the child (see Ignaccolo-Zenide,
cited above, § 102).
(b) Application of the above principles in
the present case
The Court notes that it is common ground that the tie
between the applicant and his child falls within the scope of “family
life” within the meaning of Article 8 of the Convention.
As
regards the background of the present case, the Court notes that the
applicant was granted by way of judicial decisions the right to
regular contact with his daughter, who lived with her mother.
Initially, until 29 October 2008, the meetings were ordered
every Tuesday for a duration of two hours, in the presence of a third
person. On 29 October 2008 the meetings were ordered once a week at
the Social Welfare Centre and then on 3 November 2009 every Thursday
at the same Centre. On 8 March 2010 the meetings were ordered once a
week at an unspecified place.
Thus,
the applicant’s right to see his daughter at regular intervals
was never in dispute for the national courts and they all agreed that
the applicant should be able to enjoy that right. However, in view of
the principle that the object and purpose of the Convention, which is
an instrument for the protection of human rights, requires its
provisions to be interpreted and applied in such a way as to make
their stipulations not theoretical or illusory but practical and
effective (see, among many other authorities, United Communist
Party of Turkey and Others v. Turkey, 30 January 1998, §
33, Reports 1998 I; Chassagnou and Others v. France
[GC], nos. 25088/94, 28331/95 and 28443/95, § 100, ECHR
1999 III; and Lykourezos v. Greece, no. 33554/03, §
56, ECHR 2006 VIII), the national court should have also ensured
that the applicant was able to exercise his right to contact with his
daughter effectively.
The
Court accepts that ordering that the meetings be supervised by a
third person was a reasonable measure in view of the applicant’s
health problems as described by experts in psychology and psychiatry.
The
Court notes that as early as April 2000 the applicant explained to
the national authorities that his work schedule allowed him to take
every fourth day off and asked that the meetings between him and his
daughter be ordered accordingly. He repeatedly put forward the same
argument in all the proceedings conducted before the national
authorities which concerned contact with his daughter. He clearly and
explicitly argued that owing to the fact that he worked in Vicenza,
Italy, and since his work schedule was organised in such a way that
he worked three full days and then had every fourth day off, it was
very difficult for him to come to Rijeka every Tuesday. He asked
that, instead, meetings be held every fourth or every eighth day.
However,
these arguments were constantly ignored. Thus, neither in the
judgment of the Rijeka Municipal Court of 30 November 2006, nor in a
judgment by the Rijeka County Court of 9 March 2007, adopted in the
appeal proceedings, did these courts make any comments as to the time
of the visits and the applicant’s work schedule, but continued
to order the meetings every Tuesday.
The
applicant again reiterated his arguments in his constitutional
complaint of 5 June 2007, lodged in connection with the
above-mentioned judgments of the ordinary courts. The Constitutional
Court also ignored them.
It
is true that on 29 October 2008 the Rijeka Municipal Court did order
meetings to be held once a week, without further specification of the
day. However, this judgment was altered on 3 November 2009 by the
Rijeka County Court and the meetings were ordered every Thursday,
despite the applicant’s repeated argument that seeing his
daughter on a fixed day of the week was very difficult for him owing
to his work schedule.
Contrary
to the attitude of the national courts, the Court finds the
applicant’s arguments relevant for the exercise of his right of
contact and accepts that it was difficult for the applicant to travel
from Vicenza to Rijeka on a fixed day in view of his work schedule.
In
this connection the Court observes that the national courts gave no
explanation as to why it was not possible to accommodate the
applicant’s proposal as to the time of the meetings. They
repeatedly ordered the contact between the applicant and his daughter
on a fixed day of the week, paying no heed to the applicant’s
arguments.
Another
issue in the present case is the objection of the Counselling Centre,
put forward as early as March 2005, to the effect that they had no
suitable place for the meetings between the applicant and his
daughter. Further to this, when giving evidence before the Rijeka
Municipal Court on 6 September 2005, a psychologist from the
Counselling Centre submitted that the applicant had been seeing his
daughter in the Counselling Centre’s kitchen or in the offices
of its employees. The same problems were reiterated in a further
report by the Counselling Centre dated 8 November 2005.
However,
irrespective of that objection, in its judgment of 30 November
2006 the Rijeka Municipal Court ordered that the meetings between the
applicant and his daughter be held on the Counselling Centre’s
premises, without making any observations as to the suitability of
these premises for the meetings. This decision was upheld by the
Rijeka County Court on 29 March 2007, again with no reference to the
suitability of the premises.
While
it is true that the applicant did see his daughter until July 2007 on
the premises of the Counselling Centre, the Court is mindful of the
fact that these meetings were held in the Centre’s kitchen and
offices of its employees.
While
the national courts never denied the applicant contact with his
daughter and repeatedly ordered that meetings between the applicant
and his daughter should be held, they also constantly ignored the
reality of the applicant’s situation as to his work schedule,
as well as his objections and those of the Counselling Centre
concerning the place of the meetings. This resulted in a situation
where in order to see his daughter the applicant had to go to
significant lengths to organise his replacement at his work and where
the meetings took place in unsuitable places, such as the kitchen and
offices of the Counselling Centre.
In
addition, the Court is also mindful that further developments which
took place after the applicant had lodged his constitutional
complaint (see paragraph 23 above) did not ameliorate the situation.
Thus, in July 2007 the applicant was informed by the Counselling
Centre that no further meetings were possible there. However, a fresh
decision was adopted a year and three months later, on 29 October
2008, without any provisional arrangements having been made in the
meantime.
Further
to this, and in the parallel proceedings, on 29 October 2008 the
Rijeka Municipal Court ordered that the meetings be held at the
Rijeka Social Welfare Centre, without assessing whether those
premises were suitable. In the Court’s view, before designating
that place for the meetings, the Rijeka Municipal Court should have
firstly assessed whether there was a suitable space available on the
premises of the Social Welfare Centre.
Both
the applicant and the Social Welfare Centre, in their respective
appeals, complained that there was no suitable space in the Social
Welfare Centre where the applicant could see his daughter. The Social
Welfare Centre explained that owing to a shortage of space, two to
three staff members shared the same office, and that the only space
where the applicant and I.K. could meet was in the corridor. This
resulted in a situation where the applicant could not see his
daughter. However, on 3 November 2009 the appeal court upheld the
decision that the meetings be held at the Social Welfare Centre,
without addressing the objections raised by the applicant and the
Centre itself.
Only
as late as 8 March 2010 did the Rijeka Municipal Court order that the
applicant was to see his daughter once a week when his work scheduled
allowed. However, it failed to establish where the applicant should
see his daughter, but left it to the parties to find a suitable place
for the meetings.
The
Court is mindful of the applicant’s argument that, owing to the
situation described above, he had had no contact with his daughter
since July 2007.
The
Court finds that the situation, as complained by the applicant before
the Constitutional Court, is sufficient for it to establish that the
national authorities have failed to adequately secure the applicant’s
right to respect for his family life as regards his right to
effective contact with his daughter. Moreover, even before 25
September 2008 when the Constitutional Court decided on the mater
that was before it, the contact between the applicant and his
daughter had completely ceased.
There
has accordingly been a violation of Article 8 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
applicant also complained under Article 6 § 1 of the Convention
about the national courts’ ruling that his contact with I.K.
had to be supervised because he suffered from a mental illness; under
Article 13 of the Convention that he had no effective remedy in
respect of the violation of his Convention rights; and that the fact
that custody of I.K. was given to his former wife violated Article 5
of Protocol No. 7. He also invoked Article 17 of the Convention.
In
the light of all the material in its possession, and in so far as the
matters complained of are within its competence, the Court considers
that this part of the application does not disclose any appearance of
a violation of the Convention. It follows that it is inadmissible
under Article 35 § 3 as manifestly ill-founded and
must be rejected pursuant to Article 35 § 4 of
the Convention.
III. APPLICATION OF ARTICLES 46 AND 41 OF THE CONVENTION
A. Article 46 of the Convention
Article 46 of the Convention provides as far as
relevant:
“1. The High Contracting Parties
undertake to abide by the final judgment of the Court in any case to
which they are parties.
2. The final judgment of the Court shall be
transmitted to the Committee of Ministers, which shall supervise its
execution.”
The
Court has found that the national authorities have failed in their
positive obligation to secure to the applicant the efficient
enjoyment of his right to contact with his daughter in violation of
Article 8 of the Convention.
The Court points out that by 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,
appropriate individual measures to fulfil its obligations to secure
the right of the applicant to respect for his family life (see
Scozzari and Giunta v. Italy [GC], nos. 39221/98 and
41963/98, § 249, ECHR 2000-VIII, and Christine Goodwin
v. the United Kingdom [GC], no. 28957/95,
§ 120, ECHR 2002-VI).
The
Court reiterates that its judgments are essentially declaratory in
nature and that, in general, it is primarily for the State concerned
to choose, subject to supervision by the Committee of Ministers, the
means to be used in its domestic legal order in order to discharge
its obligation under Article 46 of the Convention, provided that
such means are compatible with the conclusions set out in the Court’s
judgment (see, among other authorities, Öcalan v. Turkey
[GC], no. 46221/99, § 210, ECHR 2005-IV; Scozzari and Giunta
v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR
2000-VIII; and Brumărescu v. Romania (just satisfaction)
[GC], no. 28342/95, § 20, ECHR 2001-I). This discretion as
to the manner of execution of a judgment reflects the freedom of
choice attached to the primary obligation of the Contracting States
under the Convention to secure the rights and freedoms guaranteed
(see Papamichalopoulos and Others v. Greece (Article 50),
31 October 1995, § 34, Series A no. 330 B).
However,
exceptionally, with a view to helping the respondent State to fulfil
its obligations under Article 46, the Court will seek to indicate the
type of measure that might be taken in order to put an end to a
violation it has found to exist. In such circumstances, it may
however leave the choice of measure and its implementation to the
discretion of the State concerned (see, for example, Aleksanyan v.
Russia, no. 46468/06, § 239, 22 December 2008; Scoppola
v. Italy (no. 2) [GC], no. 10249/03, § 148, ECHR
2009 ...; and Fatullayev v. Azerbaijan, no. 40984/07, §§
174-177, 22 April 2010).
In
the present case the Court notes that the national courts
consistently ignored the applicant’s arguments as to his work
schedule and finding a suitable place for his meetings with his
daughter.
Having
regard to the particular circumstances of the case and the urgent
need to put an end to the violation of Article 8 of the Convention,
the Court considers that to discharge its obligation under Article 46
of the Convention, the respondent State shall secure effective
contact between the applicant and his daughter at a time which is
compatible with the applicant’s work schedule and on suitable
premises, on the basis of the judgment by the Rijeka Municipal Court
of 8 March 2010.
B. 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.”
1. Damage
The
applicant claimed 100,000 euros (EUR) in respect of non-pecuniary
damage.
The
Government deemed the sum claimed unsubstantiated and excessive.
The
Court considers that the applicant has suffered non-pecuniary damage
as a result of the domestic courts’ failure to secure him the
effective enjoyment of contact with his daughter, which was
incompatible with Convention principles. The damage cannot be
sufficiently compensated by a finding of a violation. Making its
assessment on an equitable basis, the Court awards the applicant EUR
15,000 in respect of non-pecuniary damage, plus any tax that may be
chargeable on this amount.
2. Costs and expenses
The
applicant did not make a claim in respect of costs and expenses.
Accordingly, the Court considers that there is no call to award him
any sum on that account.
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 complaint concerning the
applicant’s right to respect for his private and family life
admissible and the remainder of the application inadmissible;
Holds that there has been a violation of Article
8 of the Convention;
Holds that the respondent State shall secure
effective contact between the applicant and his daughter at a time
which is compatible with the applicant’s work schedule and on
suitable premises, on the basis of the judgment by the Rijeka
Municipal Court of 8 March 2010;
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), plus any tax that may be chargeable to the
applicant, in respect of non-pecuniary damage, to be converted into
Croatian kuna 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 12 April 2011 Rule
pursuant to 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Anatoly
Kovler
Registrar President
