European Court of Human Rights

 

 

 

FIRST SECTION

 

 

 

 

 

 

 

 

CASE OF MITROVA AND SAVIK v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA

 

(Application no. 42534/09)

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

11 February 2016

 

 

 

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 Mitrova and Savik v. the former Yugoslav Republic of Macedonia,

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

          Ledi Bianku, President,
          Mirjana Lazarova Trajkovska,
          Guido Raimondi,
          Kristina Pardalos,
          Robert Spano,
          Armen Harutyunyan,
          Pauliine Koskelo, judges,
and André Wampach, Deputy Section Registrar,

Having deliberated in private on 19 January 2016,

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

PROCEDURE

1.  The case originated in an application (no. 42534/09) 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 Ms Spaska Mitrova (“the first applicant”) and Ms Suzana Savik (“the second applicant”), on 20 July 2009. Both applicants are Macedonian nationals. The first applicant also has Bulgarian nationality. The first applicant is the mother of the second applicant.

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

3.  The applicants alleged that the respondent State had violated their right to respect for their family life under Article 8 of the Convention.

4.  On 4 April 2014 these complaints were communicated to the respondent Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

5.  On 4 November 2014 the Bulgarian Government exercised their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44 § 1 (b)) and submitted comments.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

6.  The applicants were born in 1983 and 2007 respectively and live in Gevgelija, in the former Yugoslav Republic of Macedonia.

7.  On 15 October 2006 the first applicant married Mr V. Savik (“the father”). On 11 February 2007 she gave birth to their daughter, the second applicant.

8.  On 10 May 2007 the Gevgelija Court of First Instance (“the first-instance court”) dissolved the marriage and gave the first applicant custody of the second applicant.

A.  Contacts between the father and the second applicant

9.  On 31 May 2007, on an application by the father, the Gevgelija Social Welfare Centre (“the Centre”) made an order specifying that he could see the second applicant at the first applicant’s house every Friday for two hours. The order was made after the Centre had examined the situation in both families and had discussed the matter with the parents. Тhe order was served on the first applicant on 2 June 2007.

10.  The first applicant’s refusal to allow the father to have contact with the second applicant at four scheduled meetings between 8 and 29 June 2007 led to her being convicted pursuant to Article 198 of the Criminal Code (judgment K.br.133/07 of 2 July 2007). The court, noting the child’s young age, dismissed the first applicant’s defence (that she had not been consulted and notified about the Centre’s order of 31 May 2007; that the child had not been developing properly at the time; and that the father had not shown any interest for the child) and sentenced her to six months’ imprisonment, suspended for one year. In determining the penalty, the court referred to gravity of the crime and the manner in which it had been committed, as aggravating circumstances, as well as to the first applicant’s age, her admitting to the crime, the fact that she had no previous criminal record, her good behaviour and her family situation, as mitigating factors. According to the court, the suspended prison term would deter her from reoffending and help crime prevention as a whole. The judgment was upheld on appeal on 27 December 2007.

11.  A further refusal by the first applicant to comply with the Centre’s order of 31 May 2007 by not allowing the father to have contact with the second applicant between July and October 2007 resulted in her being convicted a second time and being given a further suspended prison sentence (eight months, suspended for two years, judgment K.br.229/07 of 17 December 2007, upheld on appeal on 14 May 2008). The first applicant was also ordered to allow the father to see the child within 30 days after the judgment would become final. In case of non-compliance, the court specified that the suspension would be revoked and the sentence would be enforced. The court dismissed the first applicant’s defence that the father had failed to observe the scheduled meeting times, that he had turned up instead under the influence of alcohol and drugs and that he had harassed her, her parents and the child. In determining the penalty, the court referred, inter alia, to the first applicant’s age and her standard of living, as mitigating factors. Both judgments (K.br.133/07 and K.br.229/07) were delivered after the court had heard oral evidence from the first applicant, the father and a representative of the Centre. They were given by Judge I.S. of the Gevgelija Court of First Instance.

12.  In the meantime, on 21 November 2007, the Centre set a new venue and time for the meetings between the father and the second applicant. It was decided to increase the time to five hours every Friday and for the meetings to take place at the Centre rather than in the first applicant’s house. According to the order, the father’s right to have contact with the second applicant, as specified in the order of 31 May 2007, had been considerably affected by the strained relationship between him and the first applicant. The new arrangement required the first applicant to take the second applicant to the Centre at a specified time each week. The Centre stated, inter alia, that:

“... According to the established methodology of work, all efforts have been made for communication to be established between both parents, between the competent body and [the first applicant] and the parents have been alerted to all legal consequences should they fail to enforce their statutory duties as parents that can violate the rights of the minor child.

After actions have been taken and facts have been established ... on a meeting held on 12 November 2007 the expert team found that no communication could yet be established with [the first applicant] and the parents could not agree on [the second applicant’s] right to have regular contacts and meetings with the non-cohabitant parent. Such an attitude infringes the right of the minor S. Therefore, given [the second applicant’s] age, the need for an emotional bond to be created between the minor child and the non-cohabitant parent, the need to protect her rights, as well (the need) to eliminate any possibility for manipulation that would prevent the expert team to supervise the enforcement of the contact arrangements between the minor child and the father, (the Centre) decided the father’s visiting rights in respect of the minor S.S...”.

13.  The first applicant failed to appear at three scheduled meetings in November and December 2007. On two occasions in January and March 2008, the father did not see his daughter because she was ill.

14.  On 29 April 2008, after the Centre had obtained the views of the first applicant and the father and had examined the file, it partially accepted the father’s request for longer and more frequent meetings and issued an order (no. 12-07/33), specifying that his meetings with the second applicant were to take place in the Centre every Monday from 9 a.m. to 4 p.m. The order further stated that:

“... The expert team (notes that) the minor S. is still breast-fed, but (since) it is necessary to further strengthen the [child’s] emotional bond with the non-cohabitant parent and to protect the right of [the second applicant] to have contact with the father, it considers that the visiting rights should remain once a week, but longer, which would enable that (the child) stays overnight after she would no longer be breast-fed.”

15.  The Centre further set two dates on which the father could meet the second applicant, to replace the meetings missed in January and March 2008 (see paragraph 13 above). The first applicant was ordered to comply with the new contact arrangements or risk criminal proceedings being instituted against her and the father being given temporary custody of the second applicant.

16.  As the first applicant failed to comply in full with the order of 29 April 2008, on 28 May 2008 the Centre allowed the order of 29 April 2008 to be enforced by means of a separate order issued under section 14 of the Family Act (see paragraph 46 below). It established that the first applicant had failed to take the child to four of the scheduled meetings, despite being warned of the possible consequences should she fail to comply. The order further stated that:

“... Such a warning did not, for unknown reasons, enable the minor S.S. to enjoy the statutory right to contact her father and the mother not only ignores the order, but also engages in unreasonable and constant correspondence to describe incomprehensible situations, and makes accusations in a confused manner about matters which are the subject of other proceedings.

In view of the above and by virtue of law, the expert team ... decided unanimously that there are statutory grounds for forceful enforcement of the executive order of 29 April 2008 ... and for proceedings to be instituted regarding custody of the child and criminal liability of [the first applicant].

In view of the above and the fact that (the case concerns) the forceful prevention by [the first applicant] of contacts between minor S.S. and her father V.S. ...the expert team considers that the forceful enforcement (of the order of 29 April 2008) as specified in (this decision) is in the absolute interest of the minor [second applicant] ...”

17.  The first applicant was ordered to take the second applicant to the Centre on 2 June 2008 or risk being prosecuted for child abduction under Article 198 of the Criminal Code. The order stated that an appeal would not suspend enforcement of the order (правото на жалба не го одлага извршувањето). The first applicant confirmed that she had received the enforcement order of 28 May 2008. She appealed against that order, arguing that she had never been served with the Centre’s order of 29 April 2008. Furthermore, she argued that the delivery that she had received by post on 2 May 2008 had not contained the order of 29 April 2008. No decision on the appeal was made.

18.  On 17 June 2008 the first applicant asked the Centre to review the level of contact the father should have with the child. On 24 December 2008, the Centre made an order setting out the level of contact the father should have with the child. It appears that the first applicant complied with this order.

19.  On an unspecified date, the father requested that the Centre review the level of contact with the second applicant. The first applicant failed to appear at the Centre to discuss the father’s request, notwithstanding that the Centre invited her to do so at two occasions. On 3 June 2009 the Centre made an order specifying that the father should meet his daughter every Monday to Tuesday (from 9 a.m. to 9 a.m.). The increased amount of contact was justified by the child’s “specific age and stage of development ... when a stable relationship (with the father), as well as an emotional bond between them, were necessary for [the child’s] proper mental and physical development”.

B.  Criminal proceedings against the first applicant (K.br.98/08)

20. Subsequent to the two judgments against her of 2 July and 17 December 2007 (see paragraphs 10 and 11 above), on 19 June 2008, the public prosecutor brought criminal charges against the first applicant. She was accused of failing to allow the meeting scheduled for 2 June 2008 to take place, as required by the Centre’s orders of 29 April and 28 May 2008. In submissions of 30 June 2008, the first applicant denied the charge, arguing that she had never been served with the Centre’s order of 29 April 2008. In this connection, she maintained that she had received another order from the Centre dated 30 April 2008. She also expressed concerns about the fairness of the upcoming trial, given her Bulgarian nationality. She further applied for the removal of Judge I.S., should he be assigned to decide the case. On 1 July 2008 her application was dismissed by “a judge replacing the president” of the first-instance court. In submissions of 7 July 2008 to the first-instance court, the first applicant repeated her arguments and explained that she had sought Judge I.S.’s removal because he had convicted her in the previous criminal cases brought against her. She also maintained that he had allegedly solicited sexual favours from her. Her criminal complaint on the latter subject had allegedly been rejected by the same public prosecutor who had indicted her in the impugned proceedings. She also alleged that the judge who had replaced the president of the first-instance court, and who had dismissed her application for the removal of Judge I.S., was a relative of hers who, in discussions with her, had expressed disagreement with a decision she had made to study in Bulgaria.

21.  The first applicant decided not to testify at the hearing held on 10 July 2008. The first-instance court heard the father, who stated that for reasons unknown to him he had not seen his daughter at any of the scheduled meetings since 29 April 2008. A representative of the Centre stated that the first applicant had not complied with its orders of 29 April and 28 May 2008, notwithstanding the fact that she had been informed of the consequences of non-compliance. She confirmed that the first applicant had been served with all the relevant orders the Centre had made. In a judgment of the same date the first-instance court, presided over by Judge I.S., found the first applicant guilty and sentenced her to three months in prison. In doing so, it relied on the oral and documentary evidence admitted at the trial, including the Centre’s orders of 29 April and 28 May 2008, which had provided explicitly for the need of the child to “strengthen the emotional bond with the [father] and to protect [her] right to have contact with [him]” as being “in [the child’s] absolute interest”. The court established that the first applicant had not complied with these orders notwithstanding that she had been alerted about the consequences for non-compliance. She had not allowed the father to see his daughter on several occasions before and after 2 June 2008, the date specified in the enforcement order of 28 May 2008. The court further stated that it could not assess the first applicant’s defence due to the fact that she had remained silent at the trial and provided no arguments regarding the incident. Lastly, it stated that:

“In assessing the severity of the sentence, the court took into consideration all relevant circumstances (aggravating and mitigating factors) ... in particular, the gravity of the charges and concrete consequences, the manner in which the crime had been committed, the fact that [the first applicant] had already been convicted of the same offence on 2 July [judgment K.br.133/07] and 17 December 2007 [judgment K.br.229/07] and [sentenced to an alternative penalty-suspended prison term]. The court found no alleviating circumstances related to the [first applicant].

The above stated leads to a conclusion that the suspended prison sentences issued against the [first applicant] had no impact on her, [given that the first applicant] continues committing the same offence. Accordingly, it decided to sentence her to a prison term finding that it would ... deter her from reoffending in the future and would [help crime prevention as a whole].

22.  The first applicant appealed. On 3 December 2008 the Skopje Court of Appeal dismissed the appeal and upheld the lower court’s judgment. It held that the first-instance court had correctly established that she had not complied with the Centre’s orders of 29 April and 28 May 2008. Lastly, it endorsed the reasons of the first-instance court regarding her custodial sentence.

23.  On 18 February 2009 the first applicant applied to the Supreme Court for an extraordinary review of the final judgment, reiterating the arguments she had raised in her appeal. On 5 May 2009 the Supreme Court dismissed her application, finding that the facts, as based on the evidence admitted at the trial, had been correctly established by the lower courts. In this connection, the lower courts had correctly applied the procedural rules and based their judgments on evidence admitted at the trial. Lastly, the court endorsed the reasons given by the lower courts.

24.  The first applicant was ordered to present herself at prison on 10 March 2009. On 13 March 2009 the first-instance court postponed the execution of the sentence because the second applicant was ill and a new date was set for 14 June 2009. The first applicant started serving her sentence on 30 July 2009, and was released on 8 October 2009.

C.  Custody of the child and the first applicant’s right to contact her during and immediately after her detention

25.  On 9 July 2009 the Centre gave the father custody of the second applicant for fifteen days.

26.  On 30 July 2009, the date when the first applicant started serving the sentence, the Centre gave the father, of its own motion and on the basis of section 87(6) of the Family Act (see paragraph 54 below), temporary custody of the second applicant pending the conclusion of custody proceedings which he had initiated in August 2008 (see paragraph 33 below). According to the order, the first applicant had not allowed the second applicant to have any contact with the father at any of the scheduled meetings since 15 June 2009. After that date, the applicants had gone into hiding, despite the second applicant’s poor health, which required continuous medical supervision. The order further referred to the first applicant’s incarceration. The order did not provide for any contact rights for the first applicant in respect of the second applicant.

27.  On 6 October 2009 the first applicant sought permission from the Centre to see the second applicant. According to the Government, the Centre invited her to an interview upon her release from prison. However, it appears that she did not receive the invitation and, accordingly, failed to appear.

28.  According to the first applicant, on 23 November 2009 a lawyer acting on her behalf contacted the Centre to find out the whereabouts of her daughter and it was allegedly on that occasion that she was given the Centre’s order of 30 July 2009 (see paragraph 26 above). The lawyer allegedly requested the Centre to decide the contact arrangements between the first and second applicants, which the Centre refused to do, as under the law such orders were only made after both parents had been interviewed by the Centre’s welfare officers.

29.  On 4 January 2010 the first applicant again requested that the Centre specify her contact rights. In reply, the Centre twice asked the first applicant to specify a time and place for meeting her daughter. The first applicant refused to be served with these notifications.

30.  According to the Government, on 29 January 2010 the first applicant applied to the first-instance court for a decision on the amount of contact she could have with her daughter. Since she had specified a time and place for her contact with the daughter, the Centre, in an order dated 10 February 2010, specified her contact rights, which were to be every Friday from 10 a.m. to 3 p.m.

31.  On 19 February 2010 the first applicant met her daughter.

32.  On an application lodged by the first applicant, on 5 March 2010, the order of 10 February 2010 was replaced by a new order by the Centre, dated 17 March 2010, according to which the first applicant was allowed to stay with the second applicant every second weekend in the month, from Friday (3 p.m.) to Monday (9 a.m.).

D.  Custody proceedings regarding the second applicant

33.  On 26 August 2008 the father initiated custody proceedings, seeking to have the first-instance court amend its judgment of 10 May 2007 (see paragraph 8 above) and give him custody of the second applicant. In a judgment of 11 March 2010, the court granted his application and ordered the first applicant to hand the child over to the father. The first applicant would be allowed to maintain personal and direct contact with her. On 20 May 2010, however, the judgment was set aside by the Skopje Court of Appeal, which remitted the case for a fresh examination. The Court of Appeal ordered the first-instance court to reassess the available evidence and provide convincing reasons why the first applicant was unfit to enjoy custody of the child.

34.  On 15 October 2010 the first-instance court dismissed the father’s application after hearing evidence from him and the first applicant and admitting expert opinions, of 25 August 2009 and 5 February 2010, which confirmed that both parents were mentally fit and had the required capacity to care for the child. It also admitted a report by the Centre, dated 24 September 2009, in which welfare officers confirmed that the first applicant had the necessary capacity to provide basic care for the child, but that she had continuously prevented her from seeing the father. They had not applied to a court to have her parental rights restricted since there were other ways to protect the interests and rights of the child. They further argued that the first applicant’s behaviour had been inappropriate: she had used insulting language towards everyone involved in the case, and had portrayed herself, without any justification, as a victim of the system. According to the experts, this was not a suitable environment for the second applicant. On the basis of all the available information, the Centre’s welfare officers suggested that it would be in the child’s best interests for the father to be given custody. In that way the child could maintain a relationship with both parents, which she had been unable to do when the first applicant had had custody.

35.  Referring to the aforementioned facts, (see paragraphs 7-32 above), the court found that the first applicant had, for a protracted period of time, prevented the father from having contact with his daughter at the scheduled meetings. She had not been cooperative or shown any insight in her dealings with the State authorities, unlike the father, whose behaviour had been of no concern. Her past behaviour had been the result of her lack of trust in the authorities and her strained relationship with the father, but this had not affected her ability to care for the child. In this connection, the court stated:

“The court took into consideration the [Centre’s welfare officers’] opinion, but it has found that it would be in the best interests of the child, given the child’s (young) age and current stage of her development, for her to remain in the custody of the mother. The father may maintain a personal relationship and direct contact with the child. The court also took into consideration the fact that, as a consequence of these proceedings, the parties have understood the need for mutual communication in order to ensure the rights of the child. They ... have reached an agreement regarding their right to have contact with the child, which reduces the need for the competent body to determine those relationships ... In this connection, there is always the possibility that the parents reach their own agreement, at any given time, regarding custody of the child, as befits her interests.”

36.  Lastly, the court concluded that the first applicant’s nationality was of no relevance to the case. On 3 February 2011 the Skopje Court of Appeal upheld the judgment.

37.  After the judgment became final, on 7 March 2011 the Centre specified the contact rights of the father and allowed him to meet his daughter on the second and fourth weekend of the month, between Friday (3 p.m.) and Monday (9 a.m.).

38.  On 1 March 2012 the Supreme Court upheld an appeal on points of law (ревизија) by the father, finding that there had been a “wrongful application of the substantive law given the established facts” (погрешна примена на материјалното право, ако се има предвид утврдената фактичка состојба). The court overturned the lower courts’ judgments and gave custody of the second applicant to the father. The first applicant was further ordered to pay maintenance of 2,000 Macedonian denars (approximately 30 euros) per month. Referring to the first applicant’s non-compliance with the Centre’s orders of 31 May and 21 November 2007, the fact that she had been convicted on three occasions, as well as to the Centre’s expert opinion, as “the competent and responsible body” (надлежен и меродавен орган), the court held that there were grounds to amend the first-instance court’s order of 10 May 2007 regarding custody of the child. Relying on sections 8, 45, 47, 76 and 80 of the Family Act (see paragraphs 45-52 below) the Supreme Court stated, inter alia:

“This court considers that after [the first-instance court’s] judgment of 10 May 2007, which granted [the first applicant] custody of [the second applicant], the child was deprived of the fundamental right to receive parental care from both parents because of the first applicant alone. That is the fundamental, most important and decisive reason for amending the judgment [of 10 May 2007] (and) granting the [father] custody of the minor [the second applicant]. The court notes that the lower courts disregarded the change in circumstances and the Centre’s expert opinion, without any legally justified and reasonable grounds. This court considers, contrary to the findings of the lower courts, that ... it is in the best interests of the minor, S., with a view to her enjoying the company of both parents, and ensuring her development, that [the father] should be given custody. His past behaviour has shown that he is a constructive and cooperative parent whose main concern is the interests of the minor, S.

This court further considers that the reason why the lower courts dismissed the appellant’s claim to have custody of [the second applicant], namely that she was three years and eight months old and that at that age she needed to stay with the mother, with whom she was biologically connected, cannot be regarded as the only relevant legal ground (единствено правно решавачка причина). The child’s age is an important ground, but it is not the only [element] which is decisive for the court. A court order determining which of the parents of a minor child should be given custody is dependent on other factors, such as the parents’ personalities; their views regarding their rights and duties in respect of their child; the rights and interests of the child, including, certainly, [the child’s] right to both parents; and the need for the child to have the best environment for [his or her] healthy mental and physical development. In the present case, and having regard to all the circumstances, not only the [second applicant’s] age, a final conclusion can be drawn that it is in the [child’s] interests, and best for her mental and physical development, that [the father] should have custody rights.”

39.  The applicant was served with the judgment on 18 June 2012.

E.  Further developments

40.  On an application by the first applicant, on 12 July 2012 the Centre specified how much contact she could have with her daughter. According to the order, which was based on the explicit consent of both parents, the first applicant was to live with the second applicant between Monday and Friday. Both parents were allowed a ten-day summer holiday and a five-day winter holiday with her. The order further specified who would stay with the child on religious and family holidays.

41.  On an unspecified date, the first applicant applied to the first-instance court for custody of the second applicant. The first-instance court accepted the application and granted custody to the first applicant. On 13 March 2014 that judgment was set aside. The custody proceedings are allegedly still pending before the first-instance court.

42.  While the custody proceedings were pending, on 10 June 2013 the father applied to the Centre to change the living arrangements to allow him to live permanently with the second applicant. The mother would have the child two weekends a month. By a decision of 3 July 2013, the Centre suspended the proceedings relating to that application until the custody proceedings launched by the first applicant had been completed.

43.  The parties confirmed that the Centre’s order of 12 July 2012 was being complied with by all involved.

II.  RELEVANT DOMESTIC LAW

A.  Criminal Code

44.  Article 198(1), (3) and (4) of the Criminal Code provides that a person who, inter alia, unlawfully takes a minor child, prevents the child from being with an authorised person or hinders the enforcement of a legally binding order concerning custody of a child, is liable to a fine or imprisonment for up to one year. When imposing a suspended prison sentence, the court may order the return of the child or enforcement of the order. If the parent complies with previous orders, he or she may be released (ослободи од казна).

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

45.  Pursuant to section 8(1) of the Family Act, parents have equal rights and obligations as regards their children (parental rights).

46.  In accordance with section 14(1) and (6), a welfare centre provides assistance and protection in family-related matters. An appeal does not suspend the enforcement of its orders.

47.  Pursuant to section 45(1) of the Family Act, parental rights belong equally to both the father and the mother.

48.  Section 47 of the Family Act provides for the right of a child to live with the parents. Under section 47(3), a child has the right to maintain personal relations and have direct contact with a non-cohabitant parent. Under section 47(4), the non-cohabitant parent has the right and obligation to maintain personal relations and to have direct contact with the child.

49.  Section 76 provides that parents exercise their parental rights mutually and in consensus with each other. A welfare centre decides on the exercise of parental rights in cases where there is disagreement between the parents on that issue.

50.  Under section 78(1) and (2), a welfare centre may decide on the custody of a child if the parents do not live together and cannot reach an agreement themselves. The welfare centre may, of its own motion or upon an application by one of the parents, decide on the custody of the child if there has been a relevant change in circumstances.

51.  Section 79(1) provides that when parents do not live together, they decide, in consensus with each other, about the manner of maintaining personal relations and direct contact with the child. Under subsection 3, a welfare centre may, upon an application by a parent, decide how much contact he or she may have with the child, in accordance with the change in circumstances of the case.

52.  Section 80(4) provides that a court, upon an application by a parent or the welfare centre, may amend a judgment regarding custody of a child if the circumstances of the case so require.

53.  Section 83 provides that welfare centres supervise the enforcement of parental rights.

54.  Under section 87(4) and (6), a welfare centre may grant temporary custody (no longer than fifteen days) to a parent if the parent with custody does not comply with the centre’s orders and prevents the parent without custody from having contact with the child at two or more consecutive meetings. A welfare centre may grant temporary custody to a parent, if direct contact is interrupted for over two months and the parent with custody fails to comply with the welfare centre’s orders.

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

55.  Sections 270(1) and 2(3) of the Act provide that a decision given 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.

56.  Under section 274, enforcement is carried out by the enforcement body of its own motion, or on an application by the party concerned. A decision may be enforced by an enforcement body of its own motion if the public interest so requires. The enforcement of a decision that is in the interests of the party concerned is carried out on an application by him or her.

57.  Pursuant to section 276(1), the enforcement of a decision that provides for a non-pecuniary obligation is carried out by an administrative body.

58.  Section 277 provides that administrative enforcement is carried out by the body that gave 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 the matter, the administrative enforcement of a decision falls within the competence of the administrative body of general jurisdiction. The Ministry of the Interior is obliged to provide assistance regarding the enforcement of an administrative decision if the competent body requires it.

59.  Under section 278, the competent body, of its own motion or on an application by the party concerned, gives a separate decision by which it authorises administrative enforcement (заклучок за дозвола на извршувањето). Such a decision is given immediately, or no later than thirty days after an administrative decision has become enforceable. The decision specifies the manner of enforcement. An appeal against the decision can be lodged with a higher court.

D.  Civil Proceedings Act of 2005

60.  Under section 375(1)3 and (3) of the Civil Proceedings Act of 2005, an appeal on points of law can be lodged on account of an incorrect application of substantive law. It cannot be lodged on account of incorrect or incomplete facts.

61.  Under section 387(1), in the event of an incorrect application of substantive law, the Supreme Court upholds the appeal on points of law and overturns the impugned judgment.

E.  Non-Contentious Proceedings Act (Official Gazette no. 9/2008)

62.  Sections 106 to 111 of this Act concern proceedings relating to restrictions of a person’s parental rights. As specified in those provisions, a court decides, upon an application by a parent and the competent welfare centre, whether there are any grounds to restrict such rights.

THE LAW

ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

63.  The applicants complained that the custodial sentence imposed on the first applicant by the judgment of 10 July 2008; the Centre’s failure to determine the first applicant’s rights to have contact with the child for several months during and immediately after her imprisonment; and the Supreme Court’s judgment revoking her custody of the second applicant, violated their rights under 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

64.  The Government did not raise any objection to the admissibility of these complaints.

65.  The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B.  Merits

1.  The parties’ submissions

(a) The Government

66.  The Government submitted that the first applicant had failed to comply with the Centre’s orders, which had led the Centre to take the necessary measures to protect the best interests of the child, who had the right to have contact with the father. It was in that connection that the criminal proceedings (K.br.98/08), in which the first applicant had been found guilty and sentenced to a prison term, had taken place. The penalty was proportionate given her previous convictions for the same offence and the fact that the suspended prison sentence had proved inadequate.

67.  The first applicant had remained uncooperative during her detention and immediately after she had been released from prison. Thus, she had refused to accept being served with any correspondence from the Centre, including the replies and summonses concerning her applications of 6 October 2009 and 4 January 2010 for the Centre to determine her contact rights with the second applicant. In any event, the Centre could not have made a decision on those applications because they had not included specific details; namely, they had not contained any proposal by the first applicant regarding the living arrangements of her daughter. After the first applicant had submitted a detailed application (on 29 January 2010), the Centre had determined her visiting rights.

68.  Lastly, the Supreme Court’s judgment of 1 March 2012 granting the father custody of the second applicant had contained relevant and sufficient reasons. That judgment had not prevented the parents agreeing on their contact rights with their daughter, as long as that arrangement was in the child’s best interests. It was on that basis that the Centre had made its order of 12 July 2012, which had been given on the basis of the parents’ consent to determine their rights to contact with the second applicant. Since then the child had had regular contact with both parents and there had been no obstruction from either party. Accordingly, the Government maintained that there had been no violation of the applicants’ rights under Article 8 of the Convention.

(b) The applicants

69.  The applicants submitted that the first applicant’s conviction and imprisonment had not been “necessary in a democratic society” and had been grossly disproportionate, given the gravity of the offence. As regards the penalty imposed on her, the courts had not taken into consideration any alleviating circumstances, namely the child’s young age and the fact that she was still being breastfed at the time. Furthermore, the courts had not examined the possibility of imposing a fine instead of a prison sentence. They had also failed to specify the first applicant’s contact rights during her imprisonment. Her detention had affected the very essence of the applicants’ right to respect for their family life, notably the right to live together, both during the first applicant’s detention and over the following four months. Her conviction and detention had also suspended the first applicant’s custody rights.

70. The revocation of her custody of the child, without informing her, and the failure of the Centre to specify the first applicant’s contact rights between 30 July 2009 and 19 February 2010, at a time when the second applicant had been at a very young age, was a flagrant interference with the applicants’ right to respect for their family life. By its order of 30 July 2009, the Centre had granted custody of the child to the father until the custody proceedings were completed. Since that order had been based on the first applicant’s imprisonment, the prolonged revocation of her custody rights until 2012 (when the custody proceedings had ended) had not been supported by relevant and sufficient reasons. While the Centre had revoked her rights to custody of the child, it had failed to specify her visiting rights, notwithstanding that it had been competent ex officio to make such a decision. In this connection the applicants referred to section 78 of the Family Act (see paragraph 50 above). That the Centre had indeed been vested with the power to specify the visiting rights of its own motion had been confirmed by the orders of 31 May and 21 November 2007, as well as the order of 29 April 2008, in which the Centre had determined the venue and day of the meetings between the father and the child, although no specific proposal in this respect had been made by the father. Accordingly, the applicants argued that nothing had prevented the Centre from specifying of its own motion the first applicant’s visiting rights between 30 July 2009 and 19 February 2010. The fact that the applicants had not seen each other during that time was wholly attributable to the Centre. There had been no legitimate aim for such a radical measure, which had entailed the total severance of contact between the applicants.

71.  The Supreme Court’s judgment of 1 March 2012, revoking the first applicant’s custody rights, had not provided for an independent consideration of the dispute. This was due to the fact that that judgment had been based on the conviction and imprisonment of the first applicant, as well as on the opinion of the Centre, which had been considered “an expert institution issuing correct and reliable decisions”. Since the first applicant’s failure to allow the father to meet the child on the scheduled meeting days had been the main grounds on which the Supreme Court had based its judgment, the latter had amounted to a repeat punishment for the first applicant, who had already been sentenced in criminal proceedings (K.br. 98/08). Furthermore, the courts should have commissioned and relied on independent medical expert examinations.

72.  Lastly, the applicants maintained that all the grievances raised before the Court stemmed from the Centre’s biased and one-sided approach. The Centre had always given decisions on the father’s applications, whereas no decisions had been given on the first applicant’s requests. Furthermore, the Centre had failed to serve its orders of 29 April 2008 and 3 June and 30 July 2009 on the first applicant. The order of 29 April 2008 had been issued after the parents had been on good terms for several months and the first applicant had for five months (from December 2007 to May 2008) fully complied with the contact arrangements established by the Centre. Furthermore, judicial control over the Centre had been ineffective. The Centre’s order for the child to live with the mother (see paragraph 40 above) had post-dated the Supreme Court’s judgment awarding custody of the child to the father. Similarly, the Centre’s order of 30 July 2009 determining custody rights had been contrary to the court’s judgment of 10 May 2007 delivered in the divorce proceedings.

73.  The present case demonstrated that national law granted extraordinary powers to the Centre to interfere with the rights protected by Article 8 of the Convention, without a clear legal basis or guidelines and without any effective judicial control. Such a system created significant potential for abuse in the exercise of those powers, as in the present case.

(c) The third-party intervener

74.  In written submissions, the Bulgarian Government argued that the respondent State had violated the applicants’ rights under Article 8 of the Convention by imposing a criminal conviction and prison term on the first applicant, and revoking her custody of the second applicant in the Supreme Court judgment.

75.  As to the conviction and imprisonment of the first applicant, they submitted that there had been “no evidence of the efforts of the domestic authorities to examine the child’s interests, defined by the Court as ‘paramount’”. Since the father’s rights to contact and not the custody of the child had been at stake, the interference with the applicants’ rights under Article 8 had not corresponded to a pressing social need and had accordingly been disproportionate. Notwithstanding the State’s margin of appreciation, the first applicant’s imprisonment had had the effect of depriving her of her parental rights in respect of her daughter. It had been a radical measure and disproportionate to its purported aim, namely, the protection of the child’s interests.

76.  Similarly, the Supreme Court’s judgment revoking the first applicant’s right to custody of the child had not been supported by sufficient reasons. Given that the child had been a minor at the time, that measure could have had “irremediable consequences for relations between the child and the non-cohabitant parent” (in this connection they referred to Zoltán Németh v. Hungary, no. 29436/05, § 45, 14 June 2011, and Ignaccolo-Zenide v. Romania, no. 31679/96, § 102, ECHR 2000-I). Accordingly, such a measure had been disproportionate.

2.  The Court’s assessment

(a) General principles

77.  The Court points out that while the essential object of Article 8 is to protect the individual against arbitrary interference by public authorities, there may in addition be positive obligations inherent in effective “respect” for family life. As to the State’s obligation to take positive measures, Article 8 includes the right of a parent to the taking of measures with a view to his or her being reunited with his or her child and an obligation on the national authorities to take such action, including in the event of conflict between the two parents. The obligation of the national authorities to take measures to facilitate reunion or contact by a non-custodial parent with children after divorce is not, however, absolute. The nature and extent of those measures will depend on the circumstances of each case, but the understanding and cooperation of all concerned are always important ingredients. In addition, when difficulties arise, the appropriate authorities should impose adequate sanctions for any lack of cooperation and, whilst coercive measures are not desirable in this sensitive area, the use of sanctions must not be ruled out in the event of manifestly unlawful behaviour by the parent with whom the child lives. Lastly, the adequacy of a measure is to be judged by the swiftness of its implementation. Proceedings relating to the award of parental responsibility, including the enforcement of a final decision, require urgent handling as the passage of time can have irremediable consequences for relations between the child and the parent with whom the child does not live (see Maumousseau and Washington v. France, no. 39388/05, § 83, 6 December 2007).

78.  The boundaries between the State’s positive and negative obligations under this provision do not lend themselves to precise definition (see Gnahoré v. France, no. 40031/98, § 59, ECHR 2000-IX). In this area the decisive issue is whether a fair balance between the competing interests at stake - those of the child, of the two parents, and of public order - has been struck, within the margin of appreciation afforded to States in such matters, bearing in mind, however, that the child’s best interests must be the primary consideration. The child’s best interests may, depending on their nature and seriousness, override those of the parents. The parents’ interests, especially in having regular contact with their child, nevertheless remain a factor when balancing the various interests at stake (see Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 134, ECHR 2010, and the numerous authorities cited therein).

79.  Where the measures at issue concern disputes between parents over their children, it is not for the Court to substitute its own assessment for that of the competent domestic authorities - which often have the benefit of direct contact with the persons concerned - in regulating contact questions, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation. In so doing, it must determine whether the reasons purporting to justify any measures taken with regard to an applicant’s enjoyment of his right to respect for family life are relevant and sufficient (see Zawadka v. Poland, no. 48542/99, § 54, 23 June 2005).

(b) Application of the general principles to the present case

(i) Scope of the case before the Court

80.  The Court notes that the applicants’ complaints concern court judgments by which the first applicant was sentenced to a prison term and had her custody rights revoked, as well as the alleged failure of the domestic authorities to specify contact arrangements between them from 30 July 2009 to 19 February 2010. They also alleged that the Centre had not acted in good faith and criticised alleged defects in the applicable legislation.

81.   In this latter context the Court underlines that its task is not to review the relevant legislation or a particular practice in the abstract. Instead, it must confine itself as far as possible to examining the issues raised by the case before it (see Maskhadova and Others v. Russia, no. 18071/05, § 227, 6 June 2013). However, in exercising its supervisory jurisdiction, the Court cannot confine itself to considering the impugned decisions in isolation, but must look at them in the light of the case as a whole (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 148, ECHR 2000-VIII). In so doing it must ascertain whether the State authorities acted reasonably, carefully and in good faith (see Olsson v. Sweden (no. 1), 24 March 1988, § 68, Series A no. 130) in view of the concrete effect on the applicants’ right to family life (see, mutatis mutandis, Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 70, 20 October 2011).

(ii) Alleged violation of the applicants’ rights under Article 8 of the Convention

82.  The Court reiterates that the mutual enjoyment by a 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 Gnahoré, cited above, § 50, and the references cited therein). This Article is therefore applicable to the situation of which the applicants complained.

83.  On the facts of the case, the Court notes that on 10 May 2007 the first-instance court dissolved the marriage between the parents and granted the first applicant custody of the child, who was three months old at the time (see paragraph 8 above). After the divorce, the contact rights of the non-custodial parent were determined by the Centre. That was in compliance with the applicable legislation, under which a social welfare centre was competent to decide family-related issues concerning parental rights (sections 76 and 83 of the Family Act - see paragraphs 49 and 53 above); custody (sections 78 and 87 of the Family Act - see paragraphs 50 and 54 above); and contact rights, when divorced parents could not agree (section 79 of the Family Act - see paragraph 51 above). The Centre issued nine orders specifying the contact rights of the non-custodial parent at the time. All those orders were issued on the basis of a request by the non-custodial parent at the time, including the mother (see paragraphs 18, 29, 32 and 40 above). Such a practice was in compliance with section 79(3) of the Family Act. The Court is not persuaded that the Centre had been competent ex officio to specify contact rights of the non-custodial parent, as argued by the applicants (see paragraph 70 above). Such competence neither had a basis in the applicable legislation, nor was it confirmed by any example of domestic practice. The applicants’ arguments on this point concerned the Centre’s competence to regulate custody-related matters of its own motion, as provided for in section 78 of the Family Act. The Centre’s orders specifying the father’s contact rights, to which the applicants referred in their submissions (31 May and 21 November 2007, as well as 29 April 2008), were issued on an application by the father (see paragraphs 9, 12 and 14 above). That those requests did not contain enough specific details, as alleged by the applicants, cannot be interpreted as conferring competence on the Centre ex officio to determine parents’ contact rights.

84.  The first order specifying the father’s contact rights in respect of the second applicant was issued on 31 May 2007 (see paragraph 9 above). According to that order, the father was allowed to meet his daughter every Friday for two hours at the mother’s house.

85.  The first applicant did not comply with the order. Her refusal to allow the father to meet the child at four meetings scheduled in June 2007 was the reason why the first-instance court convicted her by its judgment dated 2 July 2007 (see paragraph 10 above). While the criminal proceedings were pending before the Court of Appeal, the first applicant continued to hinder the execution of the Centre’s order of 31 May 2007, by not allowing the father to meet the child at all the meetings scheduled between July and October 2007. That led to her again being convicted by the judgment of 17 December 2007 (see paragraph 11 above). In both proceedings, the first applicant was given a suspended prison term, which was considered sufficient to deter her from reoffending. In both sets of proceedings, the first applicant’s conviction and sentence were upheld by the Skopje Court of Appeal.

86.  In those circumstances, on 21 November 2007 the Centre issued a fresh order specifying an increased amount of contacts between the father and the child, which was to take place at the Centre (see paragraph 12 above). The Centre noted the strained relationship between the parents and justified its decision by the “need ... to protect [the child’s] rights”. The first applicant failed to appear at three meetings scheduled for November and December 2007 (see paragraph 13 above).

87.  On 29 April 2008 the Centre issued a new order in which it further increased the amount of contacts between the father and his daughter, the aim of which was to “strengthen the [child’s] emotional bond with the non-cohabitant parent” and “to protect the right of [the second applicant] to have contact with the father”. The order specified that in the event of non-compliance the first applicant risked criminal prosecution and the revocation of her custody rights (see paragraph 15 above).

88.  A tense period followed in which the first applicant did not comply with the order of 29 April 2008. The first applicant’s failure to comply with the order led the Centre to proceed with its administrative enforcement, as provided for by the relevant legislation (see sections 14 and 83 of the Family Act, as well as sections 274-78 of the Administrative Proceedings Act of 2005 - see paragraphs 46, 53, 56-59 above). In this connection it issued the enforcement order of 28 May 2008, in which it instructed the first applicant to take the child to the Centre on 2 June 2008 (in order to meet the father), failing which she risked prosecution. The first applicant did not comply with that order, although she had received it (see paragraphs 16 and 17 above).

89.  Her failure to comply with the Centre’s order of 28 May 2008 resulted in her being prosecuted (on 19 June 2008) and convicted (on 10 July 2008) for a third time. This judgment was given after the trial court had heard the father, a representative of the Centre and the first applicant, who unlike in previous proceedings against her remained silent at the trial. On this occasion, the first-instance court sentenced her to three months’ imprisonment. When determining the penalty, the court had regard to her previous criminal record and the fact that the suspended prison term imposed earlier had not proved sufficient to deter her from reoffending (see paragraph 21 above). The first applicant’s conviction and the custodial sentence were upheld by the Court of Appeal and the Supreme Court, which examined the first applicant’s arguments and dismissed them, supporting the reasons given by the first-instance court (see paragraphs 22 and 23 above).

90.  The parties did not dispute - and the Court does not find any reason to hold otherwise - that the first applicant’s conviction and the custodial sentence imposed in the criminal proceedings (K.br. 98/08) were “in accordance with the law” and pursued a legitimate aim. Such measures were provided for under Article 198 of the Criminal Code (see paragraph 44 above) and aimed to enable the father and the child to enjoy each other’s company, deter the first applicant from reoffending and help crime prevention as whole.

91.  As to whether the custodial sentence was “necessary in a democratic society”, the Court considers that it cannot examine this issue in isolation, but that it has to look at it in the light of the case as a whole (see paragraph 81 above). In this connection it cannot overlook the fact that this sentence was imposed after the first applicant had already been convicted of the same offence on two occasions and sentenced to a suspended prison term. Those convictions concerned the first applicant’s failure to comply with the Centre’s order of 31 May 2007 specifying the father’s contact rights in respect of the child. Despite those convictions and sentences, the first applicant remained uncooperative and continued to prevent the father from seeing the second applicant. The impugned judgment of 10 July 2008 concerned the first applicant’s failure to enable the father to see the second applicant as specified in the Centre’s orders of 29 April and 28 May 2008 (see paragraph 21 above). It followed after the Centre’s warning that she risked criminal prosecution should she fail to comply with these orders (see paragraphs 15 and 17 above) had proved futile. At this juncture, the Court notes that these orders were given with a view of protecting “the right of [the child] to have contact with the father”, which the Centre, as the competent body in family-related issues, considered to have been “in the absolute interest of [the child]” (see paragraphs 14 and 16 above). Having taken these orders into consideration, it is reasonable that the trial court implicitly accepted and was guided by the best interests of the child as these had been determined and reflected in those orders. In such circumstances, the trial court, being fully aware of all relevant circumstances (see paragraphs 10, 11 and 21 above) and after having consulted a representative of the Centre, imposed the custodial sentence after it had convicted the first applicant for the third time in a year. Whereas such a measure had short-term effects on the applicants’ rights under this head, it had in the long run the child’s best interests, namely to benefit from the company of both parents, as a primary consideration. In those circumstances, the Court is satisfied that the domestic authorities carried out an acceptable assessment of the relevant facts and took a measure which cannot be considered disproportionate to the legitimate aims pursued. 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 Mitovi v. the former Yugoslav Republic of Macedonia, no. 53565/13, § 64, 16 April 2015 and Görgülü v. Germany, no. 74969/01, § 46, 26 February 2004).

92.  The first applicant’s refusal to allow the father to maintain direct contact with his daughter was the reason why he applied to the civil courts for custody of the child. Those proceedings were launched in August 2008, that is to say, after the first applicant had been convicted and sentenced to imprisonment by the first-instance court. While those proceedings were pending, on 9 July 2009 the Centre granted the father, under section 87 of the Family Act (see paragraph 54 above), temporary custody (for fifteen days). Given her continuing refusal to allow the father to meet his daughter, the Centre granted the father temporary custody of the child until the custody proceedings launched by the father had been completed. This order was rendered under section 87(6) of the Family Act on 30 July 2009, namely on the same day the first applicant started serving her prison sentence.

93.  The first applicant was detained until 8 October 2009, that is, for two months and nine days. At this juncture, the Court reiterates that detention, like any other measure depriving a person of his or her liberty, entails inherent limitations on his or her private and family life. However, it is an essential part of a prisoner’s right to respect for family life that the authorities enable him, or if need be, assist him, to maintain contact with his close family. This is because a person does not forfeit his or her Convention rights, including the right to respect for family life, on imprisonment (see Khoroshenko v. Russia [GC], no. 41418/04, §§ 106 and 117, ECHR 2015).

94.  The Court notes that during the first applicant’s detention there was no direct contact between the applicants. However, it was not alleged, nor was any evidence adduced, that during her detention the first applicant made a proper request to the authorities, including the Centre, to allow her to contact the child. In the absence of any such request, the Centre was not empowered to determine of its own motion the applicants’ rights in this respect (see paragraph 83 above).

95.  Immediately before her release (on 6 October 2009) and afterwards (on 4 January 2010), the first applicant lodged two contact requests with the Centre, which could not be examined because she refused to take part in interviews with officials from the Centre. On the basis of a fresh request, made on 29 January 2010, which did contain sufficient details, the Centre decided on arrangements for her contact with the child (see paragraph 30 above). This latter order was issued within a reasonable time (on 10 February 2010) and allowed the applicants to meet each other at the first scheduled meeting on 19 February 2010 (see paragraph 31 above).

96.  In those circumstances, the Court considers that the State cannot be held responsible for the fact that the applicants did not see each other between 30 July 2009 and 19 February 2010.

97.  The first applicant’s contact rights in respect of the child were further determined by the Centre’s order of 17 March 2010, which was given twelve days after the first applicant had made a request to that effect (see paragraph 32 above). According to that order, the first applicant was allowed to stay with her daughter for two weekends a month. Neither party obstructed the enforcement of the order.

98.  The new arrangements lasted until 7 March 2011, when the Centre provided for an increased amount of contact by allowing the applicants to live together, apart from two weekends a month when the child would stay with the father. This order was given after the courts had finally dismissed the father’s claim in the custody proceedings, in which, as stated by the courts, the parents had understood the need to overcome the tensions between them as being in the best interests of the child (see paragraph 35 above). Given the conclusion of the custody proceedings, the Centre’s order of 30 July 2009 (granting the father temporary custody of the child) was no longer in force and the first applicant regained custody of the child, as specified in the court’s final judgment of 10 May 2007.

99.  There then followed the Supreme Court’s judgment, granting the father custody of the child. The Court notes that given the Supreme Court’s limited jurisdiction as regards the facts of the case (see paragraph 60 above), the judgment was based on evidence that had already been admitted and the facts established by the lower courts. The Supreme Court found that the lower courts “had wrongly applied the substantive law given the established facts”. Relying on the first applicant’s refusal to allow the father to see the child at the scheduled meetings during the period under consideration (between 31 May 2007 and December 2008), which it regarded as “the fundamental, most important and decisive reason” for its judgment, the Supreme Court found that it would be “in the best interests of the minor, S. ... that [the father] should be given custody” (see paragraph 38 above). The Court is satisfied that such an assessment, in which primary consideration was given to the child’s best interests (in enjoying the company of both parents), was within the State’s margin of appreciation and that the reasons given were relevant and sufficient.

100.  After that judgment had been served on the first applicant, the Centre determined new living arrangements, which were based on an agreement by the parents (see paragraph 40 above). That was in compliance with section 76 of the Family Act, under which “parents exercise their parental rights mutually and in consensus with each other” (see paragraph 49 above), and had a basis in domestic case-law (see paragraph 35 above). The order in question specified that the applicants would live together during the week, but that the child would stay with the father at the weekend. This order has remained in force until the present time and has not been contested by the applicants.

101.  Having regard to the above and applying an objective standard and assessing the relevant circumstances in the light of the case as a whole (see Nowicka v. Poland, no. 30218/96, § 70, 3 December 2002), the Court considers that the respondent State did not violate the applicants’ right to respect for their family life under Article 8 of the Convention.

FOR THESE REASONS, THE COURT,

1.  Declares, unanimously, the application admissible;

 

2.  Holds, by five votes to two, that there has been no violation of Article 8 of the Convention.

Done in English, and notified in writing on 11 February 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

André Wampach                                                                     Ledi Bianku
Deputy Registrar                                                                       President

 

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Bianku and Spano is annexed to this judgment.

 

L.B.
A.W.

 




JOINT DISSENTING OPINION
OF JUDGES BIANKU AND SPANO

1.  Ms Mitrova, the first applicant, gave birth to her daughter, the second applicant, on 11 February 2007. When the second applicant was only three months old, her parents divorced and custody was given to the mother, the first applicant. The Gevgelija Social Welfare Centre, on 2 June 2007, ordered arrangements for contact between the second applicant and her father.

2.  The first applicant refused to allow the father to have contact with the second applicant at four scheduled meetings between 8 and 29 June 2007. Following these refusals the first-instance court convicted her pursuant to Article 198 of the Criminal Code, apparently for preventing the child from being with an authorised person. She was sentenced to six months’ imprisonment, suspended for one year.

3.  The first applicant was convicted a second time and given another suspended prison sentence of eight months, suspended for two years, for refusing to comply with the Gevgelija Social Welfare Centre’s order and not allowing the second applicant to contact her father between July and October 2007. The domestic court specified that, in case of non-compliance, the suspension would be revoked and the prison sentence would be enforced.

4.  In view of the fact that the first applicant had failed to take the child to four of the scheduled meetings, on 28 May 2008 the Gevgelija Social Welfare Centre issued a separate order by which the first applicant was ordered to take the second applicant to the Centre on 2 June 2008 or risk being prosecuted for child abduction under Article 198 of the Criminal Code.

5.  The first applicant appealed. However the first-instance court, on 10 July 2008, found her guilty for failing to allow the meeting scheduled for 2 June 2008 to take place, as required by the Centre’s orders of 29 April and 28 May 2008. The court sentenced her to three months in prison. In assessing the sentence, the first-instance court “... relied on the oral and documentary evidence admitted at the trial, including the Centre’s orders of 29 April and 28 May 2008, which had provided explicitly for the need of the child to ‘strengthen the emotional bond with the [father] and to protect [her] right to have contact with [him]’ as being ‘in [the child’s] absolute interest’.” (see paragraph 21).

6.  The reasons for which we do not agree with the conclusions and the reasoning of the majority are the following.

7.  First, it follows from the case-law of the Court, as cited in paragraph 77 of the present judgment, that the use of measures involving the deprivation of liberty of parents engaged in disputes over custody or contact rights, although not excluded, must, in the assessment of proportionality




under Article 8 § 2 of the Convention, be considered an exceptional measure and only be contemplated where the utility of all other possible means available under domestic law has been assessed.

8.  On this basis, it is in our view highly problematic that the criminal law sanctions in the present case were imposed against the first applicant without any meaningful assessment as to whether other available legal measures would have been capable of deterring her from refusing to abide by the Social Welfare Centre’s contact orders. For example, it does not appear from the facts that the authorities contemplated the imposition of a temporary custody order under the Family Act (see paragraph 54 of the judgment) before resorting to criminal measures against the first applicant, imposing first a suspended sentence and then depriving her of her liberty. It was only on 9 July 2009, more than two years after the District Court had imposed on the first applicant the first criminal sentence, that the Centre gave custody of the second applicant to the father for fifteen days.

9.  Second, the same conclusion can be drawn when analysing the nature of the criminal sanctions imposed on the first applicant. While it is true that she was at the outset given a suspended prison sentence, it does not appear that other more lenient criminal measures, such as a fine (see Article 198 of the Criminal Code in paragraph 44 of the judgment) were ever taken into consideration as a possibility by the domestic authorities.

10.  Third, and most importantly, we would refer to the settled case-law of the Court under Article 8 of the Convention in matters relating to the domestic assessment of the best interests of the child, as set out in the Grand Chamber judgment in X v. Latvia ([GC], no. 27853/09, §§ 95-96, ECHR 2013), where the Court stated as follows:

“The decisive issue is whether the fair balance that must exist between the competing interests at stake - those of the child, of the two parents, and of public order - has been struck, within the margin of appreciation afforded to States in such matters ..., taking into account, however, that the best interests of the child must be of primary consideration and that the objectives of prevention and immediate return correspond to a specific conception of ‘the best interests of the child’ ... The Court reiterates that there is a broad consensus - including in international law - in support of the idea that in all decisions concerning children, their best interests must be paramount ...”

11.  We note that the proceedings in the present case did not relate to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, or to custody proceedings as such, but to contact rights of the father (see M.R. and L.R. v. Estonia (dec.), no. 13420/12, §§ 47-48, 15 May 2012, and Tarkhova v. Ukraine (dec.), no. 8984/11, 6 September 2011). While contact-related proceedings are also extremely important for the best interests of the child, and the authorities have to react promptly in enforcing contact orders, recourse to criminal law sanctions, especially custodial sentences, without assessing the effectiveness of other instruments, in the light of the child’s best interests, might be counterproductive.

12.  In the light of these general principles, we note that in July 2008, when deciding to send the first applicant to prison for three months, the reasoning of the first-instance court did not explicitly or in substance refer to any consideration as to whether separating a young mother from her baby of only 15 months was in conformity with the best interests of the child. We would point out that at that time the first applicant still had custody of her daughter, temporary custody only having being given to the father on 30 July 2009, the date when the first applicant started to serve her sentence. In sum, while aiming to guarantee the contact rights of the father, the national authorities sent the mother to prison and practically separated the child from the parent who had custody of her for a period of 7 months and 19 days, from 30 July 2009 to 19 February 2010 (see paragraphs 26 and 31 of the judgment).

13.  In this regard, we find paragraph 91 of the judgment particularly problematic.

Firstly, the majority consider that “...it is reasonable that the trial court implicitly accepted and was guided by the best interests of the child...” in imposing the custodial sentence on the first applicant. In our view, this is a clear departure from previously established case-law of the Court to the effect that a margin of appreciation in these types of cases will only be granted if it is clear from the reasoning of decisions taken by the domestic authorities that they made an informed and reasonable assessment of the best interests of the child in proceedings of this nature. It goes without saying that this Court cannot accept that such deference be afforded to national authorities on the basis of the kind of “implicit acceptance” test endorsed by the majority, as such a test does not comply in our view with the overriding character of the principle of the best interests of children. We consider it clear from the facts that the main concern of the national authorities in imposing a prison sentence on the first applicant was, as the first instance-court stated, to “deter her from reoffending in the future and [to] [help crime prevention as a whole]” (see paragraph 21 of the judgment in fine). The first two suspended sentences against the first applicant were imposed when the young child was an infant, respectively five months and ten months old. When deciding on the third sentence in July 2008, the first-instance court was, in accordance with the Court’s case-law, required to assess, clearly and directly, to what extent a prison sentence would affect the psychological well-being of the young child and the emotional ties between her and her mother. A fresh assessment of the family’s situation was needed, and in particular of the best interests of the child, at the time when it was being decided to impose a prison sentence on the first applicant, depriving her of her liberty and thus limiting the paramount right of the young child to be with her mother. A mere reference to the assessment that had been made the previous year was not in conformity with the requirement to consider the best interests of the child for the purposes of Article 8 of the Convention. Therefore, we conclude that it has not been demonstrated by the Government that the national authorities duly took into consideration the child’s best interests in the proportionality assessment of the measures taken against the first applicant.

Secondly, we note that in paragraph 91 the majority state: “Whereas such a measure [i.e. the first applicant’s imprisonment] had short-term effects on the applicants’ rights under this head, it had in the long run the child’s best interests, namely to benefit from the company of both parents, as a primary consideration”. With all due respect, we note that nowhere do the domestic authorities refer to such arguments or considerations in their assessment of the facts. It is simply inconsistent with the whole notion of the subsidiary nature of the Court’s role for it to step in and assume that considerations of this nature have been taken into account at domestic level when they do not have any basis in the record.

14.  For the above reasons, we conclude there has been a violation of Article 8 in the present case in respect of both applicants.