European Court of Human Rights

 

 

 

FIRST SECTION

 

 

 

 

 

 

CASE OF BEGOVIĆ v. CROATIA

 

( Application no. 35810/14 )

 

 

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

 

13 June 2019

 

 

 

This judgment is final but it may be subject to editorial revision.

In the case of Begović v. Croatia,

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

Tim Eicke, President,
Jovan Ilievski,
Raffaele Sabato , judges,
and Renata Degener, Deputy Section Registrar ,

Having deliberated in private on 21 May 2019 ,

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

PROCEDURE

1.     The case originated in an application (no. 35810/14) against the Republic of Croatia lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by a Croatian national, Mr Mario Begović ("the applicant"), on 5 May 2014.

2.     The applicant was represented by Mrs V. Šnur , a lawyer practising in Vinkovci . The Croatian Government ("the Government") were represented by their Agent, Mrs Š.   Stažnik .

3.     The applicant alleged that the failure of the State to enforce and facilitate the enjoyment of contact rights with his son had violated his right to respect for family life.

4.     On 30   June 2014 notice of the complaint concerning the right to respect for family life was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I.     THE CIRCUMSTANCES OF THE CASE

5.     The applicant was born in 1973 and lives in Vinkovci .

6.     On 19 September 1998 the applicant married D.M., who gave birth to their son on 17 April 2001.   The family lived together in Sesvete until 2007, when the applicant moved to Vukovar for work-related reasons.

A.     Civil proceedings for divorce, custody and contact rights

1.     Principal proceedings

7 .     On 29 January 2008 D.M. brought a civil action against the applicant in the Sesvete Municipal Court ( Općinski sud u Sesvetama ), seeking divorce, custody of their son and maintenance for the child. She submitted, inter alia, that their marital union had de facto ended in March 2007 when the applicant had moved to Vukovar .

8 .     On 27 March 2008 D.M. asked the court to issue an interim custody and contact order and grant her temporary custody of the child until the adoption of the final judgment. The applicant requested that he be granted temporary custody.

9 .     In its report to the Municipal Court of 4 June 2008 issued as part of the mandatory mediation procedure, the Sesvete social welfare centre established that the relationship between the parents had been deeply and permanently strained; communication between them was poor and they had difficulties agreeing on parental care. The report also stated that the applicant ' s contacts with his son were problematic.

10 .     In the course of the divorce proceedings, the court heard a number of experts, including, on 30 June 2008, a psychologist from the Sesvete social welfare centre, who stressed that the child needed contact with his father in order to maintain an emotional bond with him.

11 .     On 3 July 2008 the Sesvete Municipal Court issued a first interim custody and contact order, awarding temporary custody to the mother and contact rights to the applicant. Following an appeal lodged by D.M., that decision was quashed by the Zagreb County Court ( Županijski sud u Zagrebu ) on 28 October 2008.

12.     Meanwhile, on 30 September 2008 by a partial judgment the Sesvete Municipal Court dissolved the marriage between the applicant and D.M., but the proceedings continued as regards the remaining issues of custody, contact rights and child maintenance, on which the court decided to obtain an expert opinion from the Zagreb Child Protection Clinic ( Poliklinika za zaštitu djece grada Zagreba ).

13.     In the resumed proceedings, on 20 January 2009 the Zagreb Child Protection Clinic carried out an assessment of the applicant, D.M. and their son. It found that the child was depressed about his parents ' separation and burdened with their strained relationship, which put him in a loyalty conflict. It therefore recommended that the parents undergo counselling and that the child receive supportive psychotherapy.

14 .     On 20 March 2009 the Municipal Court issued a second interim custody and contact order, granting the applicant contact rights one day per week, every second weekend, every second public holiday and half of the school holidays. That decision was again quashed on D.M. ' s appeal and the case was remitted.

15 .     On 15 October 2009 the Municipal Court issued a third interim contact order, awarding the applicant contact rights to be exercised two hours every Wednesday, every second weekend and every second public holiday. The relevant part of that decision reads as follows:

"... On the basis of the case-file, the first-instance court concludes that meetings between the father and the son have thus far not been taking place in a manner corresponding to the best interest of the child, because the father had been able to see the son very rarely, and those rare occasions on Wednesdays had been limited to fifteen minutes after school ...

... The lack of co-operation by the parents concerning the exercise of their parental rights, the mother ' s firm attitude and her unwillingness to co-operate with [the applicant] must not run counter to the child ' s interests ...

Given that so far the mother has not been co-operative as regards the time scheduled for father-son meetings once a week, it was in the interest of the child to supplement the previous decision ..."

16.     An appeal lodged by D.M. against that order was dismissed.

17.     In January 2011, at the request of the Sesvete Social Welfare Centre, the court ordered an expert assessment of the parties, taking into account the growing resistance of the child to contacts with his father. D.M. and the child refused to undertake the court-ordered assessment.

18.     On 28 September 2012 the Sesvete Municipal Court held a hearing at which the child said that he wanted to live with his mother.

19 .     On 12 October 2012 the Sesvete Municipal Court rendered a judgment awarding custody rights to the mother and contact rights to the applicant. It also ordered the applicant to pay 2,000 kunas (HRK) per month for child maintenance. The relevant part of that judgment reads as follows:

"The child is eleven and a half years old and, notwithstanding the significance of the mother ' s influence on his development (concerning the father ' s allegations of manipulation) , he leaves the impression of a boy standing firmly behind his beliefs and attitudes, who expresses his will openly and clearly ...

The child wishes to live with his mother and to spend a maximum of two hours on Saturdays with his father, without supervision, as his weekly schedule is full of school and music assignments. He uses the court to ask his parents to do everything they can in order to bring the court proceedings to an end.

... [ the Vinkovci social welfare centre] suggested father-son meetings every Saturday from 10 a.m. to 5 p.m. ... for seven days during the winter holidays, fifteen days during the summer holidays and on alternate public holidays.

... [ the Vinkovci social welfare centre ' s supervising officer from 15 July 2010 to 15   July 2011] saw the child once on the doorstep. He refused to talk to the father or to her, and showed resistance towards them. [The Vinkovci social welfare centre ' s supervising officer since 15 February 2012] said that a first meeting had been held, and there had been meetings after that, but only partially and not in line with the court ' s decision. [The supervising officer also said] that the boy had been resisting the meetings, so another date had been scheduled, but the next meeting again had not taken place. The boy had asked his father to terminate the lawsuits against his mother, and said that the father would then be able to see him ...

In an essay which the child wrote in the third grade, one can detect a firm connection with his mother, the heavy burden of the pending court proceedings (enforcement proceedings, criminal proceedings, present case) and the child ' s feeling that his father has left his mother and does not respect the love he feels for her. He is also burdened with the feeling that he ' must spend time with the father ' when he does not want to and the feeling that his father does not understand him and did not understand him earlier. Finally, he is sad about the fact that his father has a new family ...

In the present case the child has had a stronger emotional bond with his mother since birth and shows resistance to his father. He also shows a significant level of resistance towards the set schedule of meetings, and his parents despite everything fail to reach the minimum level of co-operation and dialogue in the interests of their child. With the passage of time, they are drifting apart and argue more and more, which is evident from the enforcement proceedings and the supervision of meetings, which negatively influence their child, deprived of the freedom of choice.

The joint parental care necessary for the healthy, proper and successful development and upbringing of every child is lacking in the present case. No court decision can replace a good agreement between the parents on joint care. Such a decision in the present case is being enforced imperatively on the child, but ultimately protects his ' right to both parents ' .

... in order that a father-son emotional bond can be established and developed, and taking into account the child ' s wishes and his free time, the court decides to start with Saturday meetings for two hours ... so that the child can see that the court has respected his ability to independently express the wish to spend more or less time with the father, and afterwards every Saturday from 10 a.m. to 5 p.m. [as suggested by the Vinkovci Social Welfare Centre ] ...

Having regard to the events and the length of these proceedings, the Centre ' s proposal of 28 September 2012 that the court order the parents and the child to undergo an assessment at the Zagreb Child Protection Clinic, after which the Centre would give its final opinion, was dismissed, as there are no reasons for the court to delay its decision after more than four years, given that the Vinkovci Social Welfare Centre has issued its recommendation and that the decisions in the proceedings are subject to change within the meaning of section 102 of the Family Act."

20.     Both parties lodged appeals against that judgment, which were dismissed by the second-instance court. The applicant ' s subsequent constitutional complaint was also dismissed.

2.     First set of enforcement proceedings

21 .     Meanwhile, on 12 February 2010 the applicant sought enforcement of the third interim order of the Sesvete Municipal Court of 15 October 2009 (see paragraph 15 above). He asked the court to order D.M. to enable him to have contacts with his son or to face a HRK 5,000 fine. If she failed to comply with the court order, the applicant suggested that the court enforcement officer, the police and the representatives of the social welfare centre intervene at the scene.

22 .     On the same day the Vinkovci Municipal Court ( Općinski sud u Vinkovcima ) issued an enforcement order, setting an eight-day time-limit for D.M. to comply with the third interim order or face a HRK 5,000 fine. Following an appeal lodged by D.M., on 21 May 2010 the Vukovar County Court ( Županijski sud u Vukovaru ) quashed the enforcement order and remitted the case, finding that the first-instance court had to seek an opinion from the relevant social welfare centre.

23.     On 5 October 2010 the Vinkovci social welfare centre delivered a report in which it recommended that the enforcement proceedings be completed because it was in the best interests of the child to establish regular contacts with his father.

24 .     On 11 October 2010 the Vinkovci Municipal Court issued a fresh enforcement order. An appeal lodged by D.M. against that order was dismissed.

25.     On 21 January 2011 the Vinkovci Municipal Court fined D.M. HRK   5,000 for non-compliance with the Sesvete Municipal Court ' s interim custody and contact order. She was also ordered to enable the applicant to exercise his contact rights within eight days, failing which she would face a further HRK 7,000 fine. D.M. appealed.

26 .     On 30 May, 30 June and 25 July 2011 the applicant informed the Municipal Court that he had not had any contact with his son and again requested that the police and the social welfare centre intervene.

27.     On 3 August 2011 the Vinkovci Municipal Court converted the fine imposed on D.M. into twenty-eight days ' imprisonment, fined her an additional HRK 7,000 and ordered her to allow the applicant to exercise his contact rights within eight days or face a further HRK 10,000 fine. An appeal lodged by D.M. against that decision was dismissed.

28.     On 23 April 2012 the applicant informed the Vinkovci Municipal Court that he still had no contact with his son.

29.     The enforcement proceedings were ultimately discontinued because the applicant had not amended his application for enforcement in accordance with the new decision on contact rights of 12 October 2012 (see paragraph 19 above).

3.     Second set of enforcement proceedings

30.     On 27 August 2013 the applicant sought enforcement of the contact arrangements as set out in the Sesvete Municipal Court ' s final judgment of 12 October 2012 (see paragraph 19 above).

31.     On 30 October 2013 the Vinkovci Municipal Court held a hearing, at which D.M. claimed that she had not prevented the applicant from seeing his son, but that the child did not want to see his father.

32.     In February 2014 the Vinkovci Municipal Court requested the Vinkovci social welfare centre to appoint a special guardian for the child, which it did. On 14 April 2014 the child ' s special guardian stated that he agreed with the enforcement request. Given the suggestive influence and manipulative behaviour of the mother, it was the mother ' s wish, and not the wish of the child, not to have contacts with the father.

33.     In an enforcement order of 9 February 2015 the Vinkovci Municipal Court ordered D.M. to allow the applicant contacts with his son as established in the final court judgment of 12 October 2012, failing which she would be fined HRK 5,000. That decision was upheld on appeal.

34.     In February 2016 the applicant informed the court that meetings with his son were still not taking place and on 24 February 2016 the court imposed another fine on D.M., which was subsequently quashed by the second-instance court.

35.     According to the available information, the enforcement proceedings appear to be still ongoing.

B.     Criminal proceedings

36.     Meanwhile, on 9 June 2011 the applicant brought criminal charges against D.M. before the Vukovar Municipal Court ( Općinski sud u Vukovaru ) for obstruction of child-protection measures laid down in Article   215 of the Criminal Code (see paragraph 47 below).

37 .     During those proceedings, on 11 October 2012 the court heard the applicant ' s son, who stated that he did not wish to have contacts with the applicant and that this attitude had not been induced by his mother. A forensic psychologist concluded that the child ' s desire to break ties with the father should be seen in the context of extremely suggestive behaviour and manipulation by his mother and that the cessation of contact with his father did not contribute to the child ' s welfare.

38 .     On 16 May 2013 the Vukovar Municipal Court found D.M. guilty as charged and judicially admonished her ( sudska opomena - see paragraph 47 below). The applicant was instructed to pursue his civil claim for damages in separate civil proceedings. Appeals lodged by both parties were dismissed.

39 .     On 13 November 2013 the Vukovar State Attorney ' s Office ( Op ć insko dr ž avno odvjetni š tvo u Vukovaru ) indicted D.M. for non - implementation of decisions for the protection of child welfare, in particular for obstructing the enforcement of the applicant ' s contact rights pursuant to the final court judgment of 12 October 2012 (see paragraph 19 above).

40 .     On 30 September 2018 the Vukovar Municipal Court sentenced D.M. as charged to one year ' s imprisonment suspended for two years ( uvjetna osuda ).

C.     Other relevant proceedings

41 .     On 13 October 2008 the Sesvete social welfare centre concluded that the Begović family needed professional assistance and referred them to the Zagreb Child Protection Clinic for assessment and possible treatment. In its letter, the centre stressed that contacts between the applicant and his son were difficult because the mother was always present.

42.     On 10 March 2009, the social welfare centre adopted a child - protection measure provided for in section 109 of the Family Act (see   paragraph 46 below). In particular, it issued a warning to the applicant and D.M. about mistakes leading to shortcomings in the care and upbringing of their son, and cautioning them about their inadequate cooperation, which made contacts between the applicant and his son difficult. It referred them to counselling and indicated that it would undertake further child-protection measures if they failed to attend.     Between March and July 2009 the applicant and D.M. attended counselling sessions.

43.     On 1 July 2010, relying on section 110 of the Family Act, the centre imposed on the applicant and D.M. the child-protection measure of supervision of the exercise of parental authority ( nadzor nad izvr š avanjem roditeljske skrbi ) for a period of one year. The relevant part of that decision reads as follows:

"After their separation the parents did not establish adequate communication regarding [the exercise of their parental authority] which would have enabled both parents to participate adequately in the child ' s life. The fact is that meetings between the son and the father are not taking place despite the final judicial decision. Treatment in [various institutions], as well as treatment by the psychologist [I.P.], yielded no results.

...

Given that in the instant case one of the basic rights of the child provided for in the Convention on the Rights of the Child and the legislation in force is jeopardised, it was necessary to offer the parents professional assistance in establishing an adequate relationship by [imposing] the [child protection] measure of supervision of contacts between the son and the father so as to enable both parents to participate in [the child ' s] upbringing.

...

... [T]he child ' s parents live separately, the father in Zagreb and the mother in Vinkovci . [Therefore,] because of the distance [between the two towns] and work obligations, and [given] the [resultant] impossibility of implementing the court ' s decision in the part concerning contacts between the son and the father during the week owing to changed circumstances, those [contacts] will not be covered by the supervision of contacts between the son and the father."

44.     On 25 January 2012 the centre again imposed the child-protection measure of supervising the exercise of parental authority for a further year. It found that meetings between the applicant and his son were still not taking place, that the applicant did not participate in his son ' s life and that the cooperation between the parents had stopped completely.

45.     In the final report on another child protection measure of supervising the exercise of parental authority, issued for the period between July 2015 and June 2016, the social worker concluded that the measure had produced no results as the contacts between the applicant and his son were still not taking place.

II.     RELEVANT DOMESTIC LAW

A.     Family Act

46 .     The relevant provisions of the Family Act in force at the material time have been cited in K.B. and Others v. Croatia (no. 36216/13, §§   101 - 1 05, 14 March 2017).

B.     Criminal Code

47 .     The relevant provision of the 1998 Criminal Code ( Kazneni zakon , Official Gazette no. 110/97 with subsequent amendments), which was in force from 1   January 1998 to 31 December 2012, reads as follows :

Article 66   § 1

"A judicial admonition is a criminal sanction which may be imposed as a warning to the perpetrator of a criminal offence for which the law prescribes a prison sentence of up to one year or a fine, if the perpetrator ' s modus operandi , and the consequences of the crime suggest that the offence [committed] was light in nature. [It may also be imposed] where in view of the circumstances regarding the perpetrator and particularly his or her attitude towards the victim and the compensation for the damage inflicted by the offence, it is considered that the purpose of the [sanction] can be achieved without imposing a penalty."

Article 215   §   1

"Anyone who obstructs the execution of educational or other measures ordered by the court, social welfare centre or [other] State authorities or is not discharging its statutory duties [aimed at] the protection of a child or minor in due time, shall be punished by a fine or a term of imprisonment of up to one year."

48.     The relevant provision of the 2011 Criminal Code has been cited in K.B. and Others v. Croatia , cited above, § 106.

THE LAW

I.     ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

49.     The applicant complained that the failure of the State to enforce and facilitate the enjoyment of contact rights with his son had violated his right to respect for family life, as provided for in Article 8 of the Convention, which in so far relevant, reads:

"1.     Everyone has the right to respect for his private and family life ...

2.     There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society 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 parties did not make any observations on the admissibility of the application.

51.     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

(a)     The applicant

52.     The applicant argued that the national authorities had not done enough to secure the enjoyment of his contact rights with his child, as set out in the domestic decisions, primarily due to his former wife ' s obstructive behaviour. He had tried to use a number of legal remedies, but neither the enforcement order against his former wife nor her criminal conviction could have effectively enforced his contact rights.

53.     In particular, the applicant pointed out that the expert witness report prepared in the course of the criminal proceedings instituted against his former wife had shown that the child had been under a certain pressure by his mother and that, in order to continue his normal emotional and social development, the child had wished to continue developing emotional relations with his father and his family. Moreover, the child-protection measures imposed on him and D.M. had yielded no results. Despite that, neither the social welfare centre nor any other institution had undertaken any measures to enable contacts between the applicant as a parent and his child.

54.     Furthermore, the State authorities had been familiar with D.M. ' s manipulative behaviour which had given rise to the child ' s refusal to maintain contacts with him. Yet, the national authorities had never invited D.M. and their son to the premises of the Vinkovci social welfare centre in order for their experts to try and understand why the boy was refusing to see his father. Nor had they instituted proceedings for depriving D.M. of parental custody.

55.     Lastly, the applicant resented the national authorities ' conduct, in particular the inordinate length of the domestic proceedings, which had resulted in his son now categorically refusing to see him.

(b)     The Government

56.     The Government maintained that the State had taken and continued to take all reasonable measures to facilitate and enable the establishment of the applicant ' s contact with his son. However, there was a complete lack of cooperation and understanding between the parents in this case.

57.     Domestic experts who had worked with the family pointed out that the key to establishing regular and quality meetings between the applicant and his son was the establishment of adequate cooperation and communication between the parents, as well as adequate functioning of their relationship. The applicant and his former wife had undergone treatment and counselling, but to no avail, and ultimately refused further therapy.

58.     Furthermore, the Government pointed out that the State had undertaken a number of measures so that D.M. would comply with the court decisions concerning the applicant ' s contact rights. She had been threatened with fines, which had also been replaced by imprisonment on several occasions during the enforcement proceedings, and had also been convicted in criminal proceedings.

59.     Additionally, the child-protection measure of supervising the exercise of parental care had also been imposed. This too had had limited results owing to the lack of cooperation and communication between the applicant and D.M. The applicant had also failed to approach his son in a more flexible and lenient manner.

60.     According to the Government, the long-term and highly conflictual situation faced by the child was very negative for his emotional and psychological health, which was an absolute priority to all State authorities. Therefore, any measure undertaken had to take into consideration the potential impact on the child. The Government, therefore, pointed out that the range of measures that the State could have used in this situation, in particular coercive and repressive ones was restricted in the best interests of the child. Moreover, all the above-mentioned actions had increased the child ' s resistance towards his father and the efforts of the competent authorities to establish contact between them.

2.     The Court ' s assessment

61.     The Court notes that the present case concerns the non-enforcement of judicial decisions whereby the applicant was granted contact rights with his son. As a result, he was unable to establish regular and meaningful contact with him for over nine years, since his marriage with D.M. had broken down (see paragraph 7 above). Therefore, in the present case the Court ' s task consists in examining whether the domestic authorities took all necessary steps that could reasonably be demanded in the specific circumstances to facilitate contact between the applicant and his son.

62.     The relevant principles regarding the State ' s positive obligation under Article 8 of the Convention in cases concerning enforcement of contact rights are summarised in the cases of Ribić v. Croatia (no.   27148/12, §§ 88-89 and 92-95, 2 April 2015), and K.B. and Others (cited above, §§ 143-44). The Court would stress that in this type of case the adequacy of the measures taken is to be judged by the swiftness of their implementation, as the passage of time can have irremediable consequences for relations between the applicant and his son and may result in a de facto determination of the matter (see Ribi ć , cited above, §   93).

63.     In the present case the contacts between the applicant and his son were regulated by three interim contact orders, two of which were quashed on appeal (see paragraphs 11 , 14 and 15 above). The third interim order, which ultimately became final, was rendered on 15 October 2009, namely after more than twenty-one months from the date on which the applicant and his former wife had asked the Sesvete Municipal Court to issue a temporary decision in this respect (see paragraph 8 above).

64.     The Court further notes that the final judgment on custody and contact rights in the applicant ' s case was adopted on 12 October 2012 (see   paragraph 19 above), that is to say more than four and a half years after the date on which the proceedings were instituted (see paragraph 7 above).

65.     It follows that the time it took for the national authorities to adopt a final judgment on contact rights in the present case was inordinately lengthy given the nature of the situation, despite the requirement under domestic law that proceedings in family matters must be treated urgently (see paragraph   46 above).

66.     Moreover, the ensuing enforcement proceedings were unreasonably lengthy. The first set of enforcement proceedings concerning the court ' s third interim order of 15 October 2009 yielded no results, whereas the second enforcement proceedings concerning the final judgment in the case - which commenced on 27 August 2013 - are still pending more than five years later.

67.     The Court notes in this connection that throughout the enforcement proceedings the domestic courts imposed several fines on D.M. for failure to comply with court orders. However, once it was clear that those sanctions had produced no results and the applicant had requested the court to order the authorities to intervene (see paragraphs 21 and 26 above), the domestic courts should have adopted further measures with a view to enforcement. The Government argued that the imposition of coercive and repressive measures on the mother in the present case had been restricted in the best interests of the child. The Court cannot accept that argument. Although coercive measures in cases involving children are not desirable in view of the sensitivity of the matter, the Court has previously held that entrenched positions often taken by the parents in custody and contact cases may make it necessary to have recourse to proportionate coercive measures ( see   Vyshnyakov v. Ukraine , no.   25612/12, § 43, 24 July 2018) . Therefore, the Court has difficulty accepting the fact that during the two sets of enforcement proceedings lasting in total over nine years, not a single enforcement attempt through the court enforcement officer has ever been considered by the relevant authorities (see, by contrast, Grujić v. Serbia , no.   203/07 , § 69, 28 August 2018).

68.     It is true that D.M. was ultimately convicted in two sets of criminal proceedings for failure to comply with final court orders (see paragraphs 38 and 40 above). However, although the assessment of penalties in that context is not the Court ' s task, it cannot but note that the first criminal sanction imposed on her in 2013 was rather lenient, as it consisted in a judicial admonition (see paragraph 47 above), a type of warning measure, which in the present case did not have any serious consequences for D.M. if she continued her obstructive behaviour vis-à-vis the applicant. As regards the second set of criminal proceeding, the Court considers that the inordinate amount of time it took the authorities to conduct those proceedings (five years; see paragraph 40 above) could not be seen to serve as an adequate response to the urgency of the situation.

69.     The Court is mindful of the fact that the domestic authorities ' task was rendered difficult by the strained relationship between the applicant and D.M. However, the lack of cooperation between separated parents is not a circumstance which can by itself exempt the authorities from their positive obligations under Article 8. It rather imposes on them an obligation to take measures that would reconcile the conflicting interests of the parties, keeping in mind the paramount interests of the child (see Zawadka v.   Poland , no. 48542/99 , § 67, 23 June 2005).

70.     Moreover, the Court notes that already at the initial stage of the custody and contact proceedings, expert psychologists acknowledged that there had been difficulties in the contacts between the applicant and his son (see paragraph 9 above). Throughout the various sets of proceedings, the domestic courts became increasingly aware of the fact that the mother was trying to exclude the applicant from the child ' s life and that she was obstructing their contacts (see, for example, paragraphs 15, 37 and 39 above). Although the mother maintained before the domestic courts that it was in fact the child who was refusing to see his father (see paragraph 37 above), the Court considers that the child had been in an obvious conflict of loyalties and 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 Ribi ć , cited above, §   99).

71.     In sum, notwithstanding the various expert reports over the years which had established that regular contacts with the applicant had been in the child ' s best interests (see, for instance, paragraphs 10 and 37 above), the domestic authorities failed to take sufficiently effective action against D.M. ' s obstructive behaviour and unlawful actions for a number of years, even though they were under a duty to prevent it (see, mutatis mutandis , A.B.V. v. Russia , no.   56987/15 , § 80, 2 October 2018).

72.     Having regard to all of the above, and notwithstanding the respondent State ' s margin of appreciation in the matter, the Court finds that the Croatian authorities have failed to enforce the applicant ' s contact rights with his child, thereby breaching his right to respect for family life, as guaranteed by Article 8.

73.     There has consequently been a violation of Article 8 of the Convention.

II.     APPLICATION OF ARTICLE   41 OF THE CONVENTION

74.     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."

75.     The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account.

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.

Done in English, and notified in writing on 13 June 2019 , pursuant to Rule   77   §§   2 and 3 of the Rules of Court.

              Renata Degener Tim Eicke
Deputy Registrar President