European Court of Human Rights

 

 

 

FIRST SECTION

 

 

 

 

 

 

 

CASE OF MITOVI v. THE FORMER YUGOSLAV REPUBLIC

OF MACEDONIA

 

(Application no. 53565/13)

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

16 April 2015

 

 

 

 

 

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 Mitovi v. the former Yugoslav Republic of Macedonia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

          Elisabeth Steiner, President,
          Khanlar Hajiyev,
          Mirjana Lazarova Trajkovska,
          Julia Laffranque,
          Paulo Pinto de Albuquerque,
          Linos-Alexandre Sicilianos,
          Erik Møse, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 24 March 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 53565/13) against the former Yugoslav Republic of Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three individuals, Mr Marjan Mitov (“the first applicant”), Mrs Cveta Mitova (“the second applicant”) and Mr Denčo Mitov (“the third applicant”), on 20 August 2013. The second and third applicants are the parents of the first applicant. They all have Macedonian and Bulgarian nationality.

2.  The applicants were represented by Ms N. Najdenova Levik, a lawyer practising in Skopje. The Macedonian Government (“the Government”) were represented by their Agent, Mr K. Bogdanov.

3.  The applicants complained under Articles 6, 8 and 13 of the Convention that they were deprived of the right to have contact with M.M. (the daughter of the first applicant), despite the orders to that effect made by the Social Care Centre (“the Centre”).

4.  On 4 November 2013 these complaints were communicated to the Government and the remainder of the application was declared inadmissible. It was also decided to apply Rule 41 of the Rules of Court and grant priority treatment to the application.

5.  On 19 August 2014 the Bulgarian Government informed the Court that they did not wish to exercise their right under Article 36 § 1 of the Convention to intervene in the proceedings.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

6.  The applicants were born in 1972, 1949 and 1950 respectively. The first applicant lives in Sydney, Australia and the second and third applicants live in Skopje.

A.  The first applicant

7.  On 19 September 2008 the first applicant married Mrs J.S.M. in Skopje. They went to Australia, where on 30 August 2010 Mrs J.S.M. gave birth to their daughter, M.M. Relations between the first applicant and Mrs J.S.M. became strained, and on an unspecified date in 2011 Mrs J.S.M. and M.M. came back to the respondent State. In November 2011 the first applicant took eleven months’ unpaid leave from work in Australia and went to the respondent State to stay with his daughter.

8.  On 10 October 2011 Mrs J.S.M. brought a civil claim before the Skopje Court of First Instance (“the first-instance court”) seeking the dissolution of her marriage with the first applicant.

9.  On 13 October 2011, at the request of the first-instance court, the Centre initiated proceedings regarding the parental rights of the first applicant and Mrs J.S.M.

10.  On 6 December 2011 the first applicant requested that the Centre establish his specific rights in respect of contact with his daughter. On 3 January 2012 the Centre gave interim custody of the child to Mrs J.S.M. and set out the first applicant’s contact rights regarding M.M. (one hour twice a month in the Centre under supervision by professionals). Mrs J.S.M. was ordered to bring the child to the Centre. The decision further stated that it would be valid until the final conclusion of the civil proceedings regarding the dissolution of the marriage. It further provided that an appeal would not suspend its enforcement. On 8 April 2012 the Ministry of Labour and Social Policy (“the Ministry”) quashed this decision and ordered the Centre to reconsider the facts of the case, taking into consideration the interests of the child. Before that date the first applicant saw his daughter on only one occasion (13 January 2012).

11.  On 16 May 2012 the first-instance court dissolved the marriage between the first applicant and Mrs J.S.M. It granted custody of the child to the mother, ordered the first applicant to pay child maintenance, and established that he would have continuing contact with his daughter as decided by the Centre. This decision became final on 25 December 2012.

12.  In the meantime, on 10 May 2012, the first applicant made a new application to the Centre for a contact order in respect of M.M. On 4 July 2012 the Centre set out that the first applicant could meet with his daughter four times a month at intervals specified in the decision. It no longer specified supervised meetings in the Centre and ordered his ex-wife to comply with the decision. The decision again stated that an appeal would not suspend its enforcement. On 1 October 2012 the Ministry dismissed an appeal by Mrs J.S.M.

13.  On 8 October 2012 the first applicant informed the Centre that he was going back to Australia. On 22 October 2012 the Centre set aside its decision of 4 July 2012 and stated, inter alia, that:

“[The first applicant], despite the decision (of 4 July 2012), did not see his minor child at any of the scheduled meetings set up in accordance with the decision dated 4 July 2012.”

14.  This decision was served on the first applicant on 29 October 2012.

15.  In April 2013 the first applicant informed the Centre that he would be staying in the respondent State between 16 May and 2 September 2013. In this connection, on 23 April 2013 he requested that the Centre set out his right to have contact with his daughter during this period, which the Centre did with a decision of 7 June 2013: it specified that the first applicant could meet M.M. twice a month in duration of 8 hours without supervision by the Centre. It also arranged their meetings concerning working days and the child’s birthday. According to the first applicant, he had seen M.M. only once, briefly, in the Centre in the presence of a professional.

16.  The first applicant wrote to the Ministry on 3 July 2013, seeking the assistance of police to enforce the Centre’s decisions.

17.  On 8 July 2013 the first applicant requested enforcement action by the Centre. He also sought, under section 87(4) and (6) of the Family Act (see paragraph 35 below), temporary custody of the child, given the lengthy period in which he had had no contact with her. By a letter of 11 July 2013 addressed to the Centre the first applicant complained that he had not seen his daughter for two years, and demanded that the Centre take responsibility for enforcing its contact orders.

18.  By a letter of 27 August 2013, the Centre informed the first applicant that the Ministry of Justice was responsible, under section 277(2) of the Administrative Proceedings Act (see paragraph 42 below), for enforcing its decisions at the request of the Centre or the party concerned. According to the first applicant, the Ministry of Justice informed him that it had no jurisdiction over enforcement of the Centre’s decisions. The Government did not contest this assertion.

19.  On 2 September 2013 the first applicant left for Australia.

20.  By a letter of 6 September 2013, the Centre gave him the following information:

“[The enforcement of the decision of 7 June 2013] is being totally obstructed by the child’s mother Mrs J.S.M., and none of the scheduled meetings have taken place so far ... The minor child is being completely deprived by the mother of the presence of her father in her life. As a result irreparable damage is being done to her psychological, emotional and social development ... [the decision of 7 June 2013] is being totally obstructed by Mrs J.S.M., who has stated, in the presence of a professional employed by the Centre and a police officer, that she will not comply with the decision ...”

21.  On 20 September 2013 the Centre dismissed the first applicant’s request of 8 July 2013 to obtain temporary custody of the child (see paragraph 17 above), stating:

“... the team of experts considers that the above request is not in the best interests of the minor child, as it may affect the development of little M.M. ... The expert team took into consideration the age of the minor M.M. and the risk of stress and trauma if she is separated from the environment in which she is being brought up, which could affect her psycho-social and emotional development.”

22.  The first applicant appealed against this decision, arguing that the Centre itself had established that the lengthy period with no contact between himself and M.M. was causing “irreparable damage” to her development (see paragraph 20 above) and that his request should therefore be granted. On 10 February 2014 the Ministry dismissed his appeal and upheld the Centre’s decision. The first applicant did not specify whether he had appealed against this decision before the Administrative Court, which has jurisdiction to decide in such matters.

23.  With submissions of 9 April 2014 the first applicant informed the Centre that he would arrive in the respondent State in May 2014. He also sought that the Centre specified his contact rights with M.M.

24.  On 15 May 2014 the Centre set out the first applicant’s right to contact his daughter. It specified five supervised one-hour meetings with the child in the premises of the Centre. The order concerned May and July 2014. The first applicant appealed this decision, which the Ministry confirmed on 25 July 2014. In the meantime, the Centre dismissed his fresh request for more frequent contacts with M.M.

25.  On 1 August 2014 the first applicant requested that the Centre specify his visiting rights regarding his daughter for that month. On 30 September 2014 the Centre dismissed this request since the first applicant had left the respondent State on 4 September 2014.

B.  The second and third applicants

26.  On 4 October 2012 the second and third applicants asked the Centre to set out their contact rights in respect of M.M., which the Centre did with a decision of 9 January 2013. The decision further specified that all the scheduled meetings of the second and third applicants with M.M. which had not been held were to take place (да се надомести секое пропуштено видување). The decision stated that an appeal would not suspend its enforcement. As stated by the second and third applicants, and confirmed by a letter that the Centre sent on 8 May 2013 to the Helsinki Committee office in Skopje, they did not meet with M.M. at any of the meeting times specified by the Centre. According to the Centre, this was because:

“... (Mrs J.S.M.) does not respond to any invitations or to telephone calls, does not show any intention of cooperating, and totally obstructs the work of the expert team of the Centre and the enforcement of this decision [9 January 2013].”

27.  On 24 April 2013 the Ministry quashed this decision and remitted the case to the Centre for renewed examination.

28.  The applicants provided copies of letters submitted to the State Administrative Inspectorate and the Ministry of the Interior in which they complained about the non-compliance of Mrs J.S.M. with the decisions of the Centre and that the latter had failed to enforce them.

29.  On 5 September 2013 the second and third applicants asked the Centre to rule on their contact rights in respect of M.M., which the Centre did by a decision of 21 January 2014 (it specified supervised meetings on the Centre’s premises). This decision was served on these applicants on 7 February 2014. The applicants were also instructed to visit the First Family Centre in Skopje, which specialised in issues related to domestic violence. The applicants had no contact with M.M. until 13 February 2014, the date when they first met her on the Centre’s premises. On 27 February 2014 they visited the First Family Centre, which issued a document attesting that it had no jurisdiction in childcare matters and did not consider that there was a need for the second and third applicants to attend sessions regarding domestic violence.

30.  According to the applicants, the Centre did not reply to their requests for it to arrange for the meetings with M.M., as specified by the decision of 9 January 2013 (see paragraph 26 above).

31.  On 2 April 2014 the Centre delivered a new decision, confirmed on appeal on 24 June 2014, setting out the rights of the second and third applicants to contact M.M. According to the applicants, this decision provided for less contact with M.M. than the decision of 21 January 2014. No information was provided as to whether the decision was being enforced in practice.

C.  Criminal proceedings against Mrs J.S.M.

32.  On 26 August and 21 October 2013 the first applicant and the Centre both lodged criminal complaints against Mrs J.S.M. regarding her refusal to comply with the Centre’s orders concerning the first applicant’s rights of contact with M.M. On 29 October 2013 the public prosecutor submitted an indictment to the first-instance court against her for child abduction. On 12 December 2014 Skopje Court of First Instance found Mrs J.S.M. guilty of child abduction because she had prevented the father from contacting the child as specified by the Social Care Centre. It further sentenced her to three months’ imprisonment suspended for one year after the judgment would become final. No information was submitted whether this judgment became final.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

A.  Family Act 2008 (Official Gazette no. 157/2008, consolidated version)

33.  According to section 14(1) and (6) of the Family Act 2008, the Social Care Centre is responsible for providing assistance and protection where needed in family-related matters. An appeal does not suspend enforcement of its decisions.

34.  Section 83 provides that the Social Care Centre is responsible for enforcing parental rights.

35.  Under section 87(4) and (6) of the Family Act, the Centre can order temporary residence (no longer than fifteen days) of a child with a parent if the custodial parent does not comply with the Centre’s decisions and prevents the non-custodial parent from seeing the child at two consecutive scheduled meetings. The Centre can grant temporary residence of a child with a parent if direct contacts cease for over two months because of failure of the custodial parent to comply with the Centre’s decisions.

B.  Administrative Proceedings Act 2005 (Official Gazette no. 38/2005)

36.  Section 30 of the Administrative Proceedings Act provides that the Government decide conflicts of jurisdiction between State administrative bodies and between State administrative bodies and legal and physical persons carrying out public duties.

37.  Under section 31, when two bodies accept or decline jurisdiction to decide a matter, a request for conflict resolution is submitted by the body which last decided the matter or the party concerned. The decision by which the conflict of jurisdiction is settled cannot be subject to an appeal or judicial review.

38.  Section 221(2) of the Administrative Proceedings Act provides that a party whose request was not decided by the first-instance administrative body can lodge an appeal in the same way as if the request was dismissed.

39.  Sections 270(1) and 2(3) of the Act provide that a decision rendered in administrative proceedings is to be executed once it has become enforceable. When an appeal does not suspend enforcement of a first-instance decision, the latter becomes enforceable after it has been served on the party concerned.

40.  Under section 274, the enforcement is carried out of the enforcement body’s own motion or at the request of the party concerned. A decision may be enforced of the enforcing body’s own motion if the public interest so requires. The enforcement of a decision that is in the interest of a party concerned is carried out at his or her request.

41.  Pursuant to section 276(1), the enforcement of a decision that provides for non-pecuniary obligation is carried out administratively.

42.  Section 277 provides that administrative enforcement is carried out by the body that rendered the decision in respect of which enforcement is required in the first instance, unless otherwise specified by law. If that body has no jurisdiction in this respect, the administrative enforcement of a decision falls within the competence of the administrative body of general competence. The Ministry of the Interior is obliged to provide assistance regarding the enforcement of an administrative decision if the competent body requires it.

43.  Under section 278, the competent body renders, on its own motion or on request by the party concerned, immediately or no later than thirty days after an administrative decision becomes enforceable, a separate decision by which it authorises the administrative enforcement (заклучок за дозвола на извршувањето). This decision specifies the manner of enforcement. It can be appealed before the second-instance body.

44.  Sections 286-88 set out the rules on enforcement of non-pecuniary obligations (извршување по пат на принуда), which can be carried out by way of lodging a misdemeanour complaint against the person who refuses to comply with the administrative decision (section 286) or directly (непосредна принуда) if such enforcement is specified by law (section 287).

C.  Administrative Disputes Act of 2006

45.  Section 22(1) and (3) of the Administrative Disputes Act provides that if the second-instance body does not give a decision within 60 days, an interested party can lodge an appeal on points of law with the Administrative Court in the same way as if his or her appeal had been dismissed. The interested party can ask the second-instance body to decide on his or her request if the first-instance body failed to issue a decision within 60 days from the submission of that request. If the second-instance body fails to give a decision, the interested party can lodge an appeal on points of law.

D.  Enforcement Act of 2011, consolidated version (Закон за извршување)

46.  Section 1 of the Enforcement Act of 2011 provides as follows:

Section 1

“(1)  This Act regulates the way in which bailiffs enforce court judgments ...

(2)  Provisions of this Act apply to forcible enforcement of an administrative decision that provides for a pecuniary obligation ...”

E.  Criminal Code

47.  Under Article 198, a person who abducts a minor or prevents him or her from staying with a person who has custody is liable to a fine or one year’s imprisonment. Under § 3 of this Article, if a suspended prison sentence is issued, the court can order the offender to return the minor, or it may enable the enforcement of a final judgment regarding the custody of the child.

F.  Relevant domestic practice

48.  The Government submitted copies of two judgments delivered in 2008 and 2013, in which the first-instance court found a mother guilty of child abduction because she had prevented the father from contacting the child as specified by the Social Care Centre. In both cases the court sentenced the mother to a suspended prison term (K.br.843/08 and K.br.1639/13).

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

49.  The applicants complained under Articles 6 and 8 of the Convention that the domestic authorities had failed to enforce the Centre’s decisions regarding their right to have contact with M.M. Being the master of the characterisation to be given in law to the facts of a case (see Söderman v. Sweden [GC], no. 5786/08, § 57, ECHR 2013 Moretti and Benedetti v. Italy, no. 16318/07, § 27, 27 April 2010), the Court finds it appropriate to examine these complaints only under Article 8 of the Convention in view of the State’s positive obligation in the sphere of family life. Article 8 of the Convention reads as follows:

Article 8

“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

50.  The Government did not raise any objection as regards the admissibility of these complaints.

51.  The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) 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’ submissions

52.  The applicants reiterated that there had been a violation of their rights under this Article. In this connection they maintained that owing to the uncooperative attitude of Mrs J.S.M. and the reluctance of the domestic authorities to enforce the contact orders made by the Centre, the applicants were unable to see M.M.

53.  The Government stated that this was a sensitive matter and, referring to the facts of the case, maintained that there had been no violation under this head.

2.  The Court’s assessment

(a)  General principles

54.  The Court recalls that the essential object of Article 8 is to protect the individual against arbitrary interference by public authorities. There may however be positive obligations inherent in an effective “respect” for family life. These obligations may involve the adoption of measures designed to secure respect for family life even in the sphere of relations between individuals, including both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals’ rights and the implementation, where appropriate, of specific steps (see Zawadka v. Poland, no. 48542/99, § 53, 23 June 2005).

55.  Article 8 includes for parents a right to have measures taken to reunite them with their children and an obligation on the national authorities to facilitate such reunions, including in the event of conflict between the two parents. This applies not only to cases dealing with the compulsory taking of children into public care and the implementation of care measures, but also to cases where contact and residence disputes concerning children arise between parents and/or other members of the children’s family (see Mihailova v. Bulgaria, no. 35978/02, § 80, 12 January, 2006; Iglesias Gil and A.U.I. v. Spain, no. 56673/00, § 49, ECHR 2003-V; Nuutinen v. Finland, no. 32842/96, § 127, ECHR 2000-VIII; and Ignaccolo-Zenide v. Romania, no. 31679/96, § 94, ECHR 2000-I).

56.  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. The key consideration is whether those authorities have taken all necessary steps to facilitate contact as can reasonably be demanded in the special circumstances of each case (see Zawadka, cited above, § 56 and Ignaccolo-Zenide, cited above, § 96). 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 non-resident parent (see Krivošej v. Serbia, no. 42559/08, § 52, 13 April 2010; Felbab v. Serbia, no. 14011/07, § 67, 14 April 2009; and Maire v. Portugal, no. 48206/99, § 74, ECHR 2003-VII).

(b)  Application of these principles to the present case

57.  The Court reiterates that it is a common ground 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 Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 169, ECHR 2000-VIII, and Monory v. Romania and Hungary, no. 71099/01, § 70, 5 April 2005). This Article is therefore applicable to the situation of which the first applicant complained.

58.  As regards the second and third applicants, who are the child’s paternal grandparents, the Court notes that the relationship between grandparents and grandchildren is different in nature and degree from the relationship between parent and child and thus by its very nature generally calls for a lesser degree of protection. The right to respect for family life of grandparents in relation to their grandchildren primarily entails the right to maintain a normal grandparent-grandchild relationship through contacts between them, even though those contacts normally take place with the agreement of the person who has parental responsibility (see Kruškić v. Croatia (dec.), no. 10140/13, §§ 120-122, 25 November 2014).

59.  The Court notes that the Centre delivered three decisions specifying the second and third applicants’ contact rights in respect of M.M. (9 January 2013 and 21 January and 2 April 2014, see paragraphs 26, 29 and 31 above). Accordingly, these applicants were given, under the domestic law, the right to establish, through frequent contacts, close relationships with their grandchild. The Court is therefore satisfied that this entitlement, the aim of which was to create a tie between the second and third applicants and M.M., may fall under the scope of “family life” within the meaning of Article 8 of the Convention.

60.  Accordingly, the Court must determine whether there has been a failure to respect the applicants’ family life.

61.  The Court observes that the Centre delivered seven orders regulating the applicants’ contact rights in respect of M.M. The Court cannot but note the delays in the Centre’s dealing with the applicants’ requests regarding their rights to have contact with M.M. (it took between two and five months for the Centre to decide on the applicants’ requests, see paragraphs 12, 26 and 29 above). No explanation was put forward to justify those delays. Such a lengthy period of time was excessive, in particular regarding the first applicant, who had a limited stay in the respondent State.

62.  Given that an appeal did not suspend the enforcement of those decisions, they became binding and enforceable as soon as they were served on the parties (see paragraph 39 above). On the facts, the Court notes that the authorities did not take any measures to create the necessary conditions for executing these orders, notwithstanding that they were aware of the uncooperative behaviour of the mother and the fact that they were competent to proceed of their own motion (see paragraph 40 above).

63.  In such circumstances, the Centre’s contact orders remained unenforced for a lengthy period, during which the applicants were unable to see M.M. The first applicant did not see his daughter (with two exceptions, see paragraphs 10 and 15 above) during his limited stay in the respondent State, namely between November 2011 and October 2012 (see paragraphs 7 and 13 above) and between April and September 2013 (see paragraphs 15 and 19 above). The Government did not provide any information as to whether the first applicant had seen his daughter during his stay in the respondent State between May and September 2014 (see paragraphs 23-25 above). Similarly, the second and third applicants were unable to see M.M. until 13 February 2014, which was a year and four months after they had requested that the Centre establish their rights in this respect (see paragraphs 26 and 29 above).

64.  In view of the facts of the case, the Court considers that the authorities have failed to do everything in their power that could reasonably have been expected of them in order to secure the applicants’ rights under this head. Whereas the Centre examined the long-term effects which the separation from her father might have on M.M. (see paragraph 20 above), the legitimate interest of the applicants in developing and sustaining a bond with M.M. were not considered. In this connection the Court reiterates that the likelihood of family reunification will be progressively diminished and eventually destroyed if the biological father and the child are not allowed to see each other at all, or only so rarely that no natural bonding between them is likely to occur (see, mutatis mutandis, Görgülü v. Germany, no. 74969/01, § 46, 26 February 2004). Similar considerations apply to the second and third applicants, who had the right, as established by the domestic authorities, to maintain a normal grandparent-grandchild relationship through contacts between them.

65.  Having regard to the foregoing, and notwithstanding the sensitivity of the matter, the Court concludes that the domestic authorities failed to make adequate and effective efforts to enforce the applicants’ right to respect for their family life, as guaranteed by Article 8 of the Convention. There has consequently been a violation of this Article.

II.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

66.  The applicants complained of a violation of their right to an effective remedy in respect to their rights under Article 8 of the Convention, as specified above. They relied on Article 13 of the Convention, which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A.  Admissibility

67.  The Government did not raise any objection as regards the admissibility of this complaint.

68.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) 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’ submissions

69.  The applicants submitted that all the remedies used were ineffective since they had not enabled them to see M.M. at the meeting times specified by the Centre. They argued that the relevant legislation did not provide for clear rules as to which body had competence to enforce the Centre’s decisions regarding their right to have contact with M.M.

70.  The Government submitted that the applicants had sufficient effective remedies regarding their claims. The Centre and Ministry had notified the applicants of their decisions in good time. Criminal proceedings against Mrs J.S.M. were under way.

2.  The Court’s assessment

71.  The Court has reiterated on numerous occasions that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they are secured in the domestic legal order. The effect of this Article is thus to require the provision of a domestic remedy allowing the competent national authority both to deal with an “arguable complaint” under the Convention and to grant appropriate relief. The scope of the Contracting States’ obligations under Article 13 varies depending on the nature of the applicant’s complaint. The States are afforded some discretion as to the manner in which they conform to their obligations under this provision. However, the remedy required by Article 13 must be “effective” in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see De Souza Ribeiro v. France [GC], no. 22689/07, § 78 and 80, ECHR 2012).

72.  In addition, particular attention should be paid to the speediness of the remedial action itself, since it is not inconceivable that the adequate nature of the remedy can be undermined by its excessive duration (see Doran v. Ireland, no. 50389/99, § 57, ECHR 2003-X).

73.  In the present case the applicants made use of the following remedies: the first applicant requested the Centre and the Ministry of Justice to enforce the Centre’s contact orders (see paragraphs 17 and 18 above); he unsuccessfully sought, under section 87 of the Family Act (see paragraph 17 above) temporary custody of the child; and he brought a criminal complaint against Mrs J.S.M. for child abduction (see paragraph 32 above). The proceedings regarding the latter two remedies apparently are still pending. The applicants also sought assistance from other national authorities (see paragraphs 16 and 28 above).

74.  The Court observes that the first applicant’s requests for enforcement of the Centre’s decisions were to no avail. This was so because both the Centre and the Ministry of Justice declined jurisdiction in this respect. Accordingly, the system of administrative enforcement of administrative decisions specified under the Administrative Proceedings Act (see paragraphs 40-44 above) could not have been set in motion. In this connection the Court underlines that the Government did not bring to the Court’s attention any special piece of legislation or domestic practice regarding which body had competence for the administrative enforcement of the Centre’s contact orders. This issue remained open in the applicants’ case notwithstanding the mechanism for resolution of conflicts of jurisdiction between administrative bodies provided for by the domestic law (see paragraphs 36 and 37 above). In so far it concerns enforcement by bailiffs, the Court is not convinced, and the Government did not provide any comments to the contrary, that the enforcement machinery provided for in the Enforcement Act (see paragraph 46 above) applied to the Centre’s access orders. It is so since that machinery concerns enforcement of court judgments or administrative decisions that provide for a pecuniary obligation, which was not the case with the Centre’s contact orders. In such circumstances the Court cannot but note that there was no effective remedy under domestic law for the applicants’ complaint about the non-enforcement of the Centre’s contact orders in respect of M.M.

75.  Furthermore, the Court notes that the criminal proceedings brought in October 2013 against Mrs J.S.M. apparently are still pending before the domestic courts. No such proceedings were instituted in view of her refusal to comply with the access orders regarding the grandparents. The foregoing and the domestic practice to which the Government referred (see paragraph 48 above) cannot persuade the Court that the criminal avenue of redress provided for an effective remedy regarding the applicants’ rights under Article 8 of the Convention.

76.  Against this background, the Court considers that the applicants did not have an effective remedy regarding their complaints under Article 8 of the Convention. There has, accordingly, been a violation of Article 13 taken in conjunction with Article 8 of the Convention.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

77.  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

78.  The first applicant claimed 100,000 euros (EUR) in respect of pecuniary damage for unpaid salary of which he had been deprived during his stay in the respondent State. He also claimed EUR 50,000 in respect of non-pecuniary damage for mental stress suffered owing to the alleged violations. The second and third applicants claimed EUR 10,000 each for non-pecuniary damage.

79.  The Government contested these claims as unsubstantiated. They further argued that there was no causal link between the damage and the alleged violations.

80.  The Court does not discern any causal link between the violations found and the pecuniary damage claimed by the first applicant; it therefore rejects this claim. On the other hand, it considers that the applicants suffered non-pecuniary harm as a result of the violations found. Ruling on an equitable basis it awards, under this head, the first applicant EUR 13,000 and the second and third applicants EUR 7,000 jointly, plus any tax that may be chargeable.

B.  Costs and expenses

81.  The applicants also claimed EUR 11,000 for the costs and expenses incurred before the domestic courts and the Court.

82.  The Government contested this claim as unsubstantiated, arguing that the applicants had not presented any evidence that the costs claimed had been “actually and necessarily” incurred.

83.  The Court notes that the applicants did not submit supporting documents in respect of their claim for reimbursement of costs and expenses. However, they were represented by a lawyer in the proceedings before the Court and observations, as requested, were submitted. In these circumstances, the Court finds it appropriate to award EUR 850 under this head, plus any tax that may be chargeable, to the applicants jointly.

C.  Default interest

84.  The Court considers it appropriate that the default interest rate 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,

1.  Declares the application admissible;

 

2.  Holds that there has been a violation of Article 8 of the Convention in respect of the applicants’ right to respect for their family life;

 

3.  Holds that there has been a violation of Article 13 of the Convention taken together with Article 8 of the Convention;

 

4.  Holds

(a)  that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into national the currency of the respondent State at the rate applicable at the date of settlement:

(i)  to the first applicant, EUR 13,000 (thirteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  to the second and third applicants, EUR 7,000 (seven thousand euros) jointly, plus any tax that may be chargeable, in respect of non-pecuniary damage; and

(iii)  to the applicants jointly, EUR 850 (eight hundred and fifty euros), plus any tax that may be chargeable to them, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

 

5.  Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 16 April 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

   Søren Nielsen                                                                    Elisabeth Steiner
       Registrar                                                                              President