European Court of Human Rights

 

 

 

FIRST SECTION

 

CASE OF OLURI v. NORTH MACEDONIA

(Application no. 3368/18)

 

 

 

 

 

JUDGMENT

STRASBOURG

16 January 2020

 

 

 

 

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

 

In the case of Oluri v. North Macedonia,

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

          Aleš Pejchal, President,
          Tim Eicke,
          Jovan Ilievski, judges,
and Abel Campos, Section Registrar,

Having deliberated in private on 17 December 2019,

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

PROCEDURE

1.  The case originated in an application (no. 3368/18) against the Republic of North Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Macedonian/citizen of the Republic of North Macedonia, Ms Valbone Oluri (“the applicant”), on 9 January 2018.

2.  The applicant was represented by Mr N. Istochki, a lawyer practising in Resen. The Government of North Macedonia (“the Government”) were represented by their Agent, Ms D. Djonova.

3.  On 11 October 2018 the Government were given notice of the application.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A.     Background to the case

4.  The applicant was born in 1988 and lives in Resen.

5.  In December 2013 she entered into a non-marital partnership (вонбрачна заедница) with E. and moved into his house in the village of Zh. On 11 December 2014 she gave birth to a girl, A. (“the child”).

6.  In March 2015 their cohabitation ended and the applicant moved back in with her parents in Resen, while A. stayed with her father and his parents.

7.  Following a request by the applicant and after commissioning an expert report, on 20 July 2015 the Inter-Municipal Social Welfare Centre in P. (“the Centre”) granted custody of the child to the applicant, while E. was granted contact rights (“the 2015 decision”). The decision became final and enforceable on 8 August 2015.

B.     Enforcement of the 2015 decision

8.  On 4 September 2015 the applicant asked the Centre to enforce its decision.

9.  On 10 September 2015 E. was summoned to the Centre, where he promised to make arrangements to hand over the child to the applicant. On 16 September 2015 he again attended the Centre and stated that he had no intention of handing over the child. He was sent a warning by the Centre the following day.

10.  On 29 September 2015 and 8 November 2016 agents from the Centre visited E.’s home. On 18 November 2016 the applicant again requested that the Centre enforce the 2015 decision.

11.  In a response dated 24 November 2016 the Centre informed the applicant that work on her case was ongoing and that they had initiated several sets of proceedings against E. The delays were attributable to the fact that she and E. were living in different municipalities, which meant that the Centre had to work in cooperation with the Social Welfare Centre in Resen. Lastly, the Centre stated that it was not entitled to enforce its decisions, since enforcement fell within the competence of the Ministry of Justice (Министерство за правда).

12.  In response to two earlier requests by the applicant, on 17 February 2017 the Ministry of Justice informed her that the Centre was responsible for enforcing the 2015 decision.

13.  On 10 March and 11 April 2017 the Centre ordered that E. be supervised in the exercise of his parental rights, and that he surrender the child to the applicant pursuant to the 2015 decision.

14.  On 19 April 2017 agents from the Centre, in the presence of the applicant and assisted by the police, visited E.’s house with the aim of retrieving the child. E. refused to hand her over and later claimed that she had been ill that day. Another visit which took place on 10 May, without police presence, also proved fruitless.

15.  Following a request by the applicant, on 13 July 2017 the Secretary General (Генерален секретар на Влада) informed her that it was the Centre’s duty to enforce its decisions.

16.  On 18 July 2017 the applicant wrote to the Centre again, seeking enforcement of the 2015 decision. The Centre sent another warning to E.

17.  Another unsuccessful visit by the Centre’s agents to E.’s house took place on 9 November 2017.

18.  In the period 12 January to 9 May 2018 four meetings between the applicant and the child took place, some of them at the Centre. E. took and collected the child on every occasion. The meetings were subsequently discontinued at the request of the applicant (see paragraph 23 below).

C.    Criminal proceedings against E.

19.  Meanwhile, by a judgment of 8 November 2016 E. was convicted on two counts of child abduction (одземање на малолетник), following criminal complaints lodged by the applicant and the Centre. He was sentenced to six months’ imprisonment, suspended on condition that he return the child to the applicant within two months. The judgment became final on 14 December 2016. On 2 March 2017 the applicant requested that the court revoke E.’s suspended sentence, given that he had failed to return the child. The sentence was revoked on 5 July 2017 and E. was ordered to serve it forthwith. The decision was upheld on appeal on 14 September 2017.

20.  By a court decision of 2 February 2018 E. was exempted from serving his sentence under the general Amnesty Act (Закон за aмнестија, Official Gazette no.11/2018), which provided that all persons sentenced to six months or less be released from serving their sentence. That decision was made before E. started serving his sentence.

21.  By a judgment of 12 March 2018 E. was again convicted of child abduction and given a six-month suspended prison sentence, following a fresh criminal complaint by the applicant. By the same judgment he was ordered to return the child. The judgment became final on 10 April 2018.

22.  By a court decision of 6 March 2019 a request by the applicant to have E.’s suspended sentence revoked was denied. E. was also released from the obligation to return the child on the basis of a new expert report (see paragraph 23 below). That decision was upheld on appeal on 14 April 2019.

D.    Reversal of the 2015 decision

23.  Following a request by E., on 21 November 2018 the Centre overturned the 2015 decision and gave him custody of the child, while the applicant was granted contact rights (“the 2018 decision”). The decision was based on a new expert report which established that E. and his family had been taking good care of the child. Partly on account of the lack of contact with the applicant, the child had not developed an emotional bond with her. Furthermore, at several meetings (see paragraph 18 above) it had been observed that the applicant was failing to show any affection towards the child, and further meetings had been discontinued at her request. A language barrier had also developed between the applicant and her child, in that the former spoke Macedonian and Turkish, but the latter only Albanian. Lastly, the Centre stated that, considering the child’s age, a sudden change of environment could have negative consequences. For all of those reasons it was decided that it would be in the best interests of the child to remain with her father. The decision became effective immediately and provided that any appeal against it would have no suspensive effect.

24.  Following a remittal of the case, an appeal lodged by the applicant was dismissed by a second-instance commission. The proceedings are still pending.

25.  Between 12 February and 15 March 2019 the applicant met with the child on four occasions at the Centre, in accordance with the terms of the 2018 decision.

II. RELEVANT DOMESTIC LAW

26.  The relevant sections of the Family Act are summarised in the case of Mitovi v. the former Yugoslav Republic of Macedonia (no. 53565/13, §§ 33-35, 16 April 2015).

THE LAW

I. ALLEGED VIOLATION OF ARTICLES 8 AND 13 OF THE CONVENTION

27.  The applicant complained that the protracted failure to enforce the 2015 decision granting her custody of her daughter had amounted to a breach of her right to respect for her family life, as protected by Article 8 of the Convention. She further complained that she had not had an effective remedy at her disposal with regard to that complaint. She relied on Articles 8 and 13 of the Convention, which read as follows:

Article 8

“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 13

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

A.    Admissibility

1.    The parties’ submissions

28.  The Government submitted that the applicant had abused the right of individual application since she had failed to inform the Court of the reversal of the 2015 custody decision and the outcome of the second set of criminal proceedings (see paragraphs 21 and 23 above). They further maintained that she had not exhausted domestic remedies since the custody proceedings, as well as the proceedings to revoke E.’s suspended sentence (see paragraph 22 above), were still pending.

29.  The applicant denied that those developments were of such importance as to constitute an abuse of the right of individual application. The fact that the custody proceedings were still pending was also irrelevant for the outcome of the instant case.

2.  The Court’s assessment

30.  The Court notes that the applicant’s complaints concern the protracted non-enforcement of the 2015 decision granting her custody of her child, and the alleged lack of any remedy at her disposal in that regard.

 

32.  As to the Government’s non-exhaustion objection, the Court would firstly note that the fact that the proceedings for custody are still pending has no bearing on the non-enforcement of the 2015 decision. This is so because notwithstanding the outcome of the pending proceedings, the 2015 decision has already not been enforced for a period of over three years and three months, which is the essence of the applicant’s complaint. This cannot be redressed in the course of the pending proceedings for custody. This is further reinforced by the fact that the 2018 decision became effective immediately. Secondly, the proceedings to revoke E.’s suspended sentence have meanwhile ended with a final decision (see paragraph 22 above). It follows that this objection should also be rejected.

33.  The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.     Merits

1.    Alleged violation of Article 8 of the Convention

(a)    The parties’ submissions

34.  The applicant reiterated that there had been a violation of her rights under Article 8 of the Convention. She maintained that the authorities had not taken all necessary measures to enforce the 2015 decision, which had eventually led to its reversal.

35.  The Government argued that the Centre had conducted numerous activities with the aim of enforcing the 2015 decision, including sending numerous warnings to E., organising visits to his house and even using police assistance. The sole fact that those activities had not resulted in the decision being enforced could not lead to a finding of a violation of Article 8 of the Convention.

(b)    The Court’s assessment

36.  The general principles relevant to the instant complaint are set out in the cases of Ignaccolo-Zenide v. Romania (no. 31679/96, §§ 94-96, ECHR 2000‑I), and Mihailova v. Bulgaria (no. 35978/02, §§ 79-83, 12 January 2006). They were recently restated in the case of Khusnutdinov and X v. Russia (no. 76598/12, §§ 76-83, 18 December 2018).

37.  The Court observes that it was not disputed between the parties that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of “family life” within the meaning of Article 8 of the Convention (see, among many other authorities, Monory v. Romania and Hungary, no. 71099/01, § 70, 5 April 2005). The Court, therefore, must determine whether there has been a failure to respect the applicant’s family life.

38.  The Court firstly notes that the 2015 decision was in force for over three years and three months, during which time it remained unenforced. Initially, in September 2015 the Centre sent at least three letters to E. and made a visit to his home. However, apart from lodging a criminal complaint against E., it would appear that following this initial period the Centre remained mostly passive for over one year and one month, that is, until the following visit to E.’s house on 8 November 2016 (see paragraph 10 above). The Centre’s claim that cooperation with another municipal Centre was necessary cannot justify that delay (see paragraph 11 above).

39.  In the two years that followed, until November 2018, the Centre did not conduct any significant activities with the aim of enforcing the 2015 decision either. It continued to send E. written warnings and made several visits to his house, methods which had already proven fruitless. The only notable activity was the securing of police intervention on one occasion, which also proved fruitless (see paragraph 14 above). On the basis of the above, the Court can only conclude that in this period the Centre’s activities were for the most part unsatisfactory.

40.  In this connection, the Court is of the opinion that there is no explanation as to why the Centre failed to further pursue the matter of obtaining police assistance for the subsequent visits to E.’s house, or undertake other coercive measures, especially given that E. had already clearly indicated that he had no intention of handing over the child as early as in September 2015 (see paragraph 9 above).

41.  Furthermore, the Court notes that there was some confusion as to whose duty it was to enforce the Centre’ decisions, which also contributed to delays in the proceedings (see paragraphs 11, 12 and 15 above).

42.  The Court notes that both the applicant and the Centre lodged criminal complaints against E., which ended in him being convicted and ordered to hand over the child. However, neither of the orders regarding the return of the child, or the prison sentences contained in those judgments, were enforced. Therefore, even though the relevant judgments explicitly ordered E. to hand over the child to the applicant, they cannot be regarded as an effective means of enforcement of the 2015 decision, given their
non-enforcement and subsequent suspension (see paragraphs 20 and 22 above).

43.  The Court would lastly observe, as supported by the 2018 expert report, that the protracted non-enforcement of the 2015 decision created a situation where an emotional bond between the applicant and her child failed to form, which in turn, contributed to the reversal of the 2015 decision in 2018 (see paragraph 23 above).

44.  The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 8 of the Convention.

45.  The Court emphasises in this connection that this conclusion is without prejudice to any subsequent decision taken by the Social Welfare Centre as to which parent should have custody based on the child’s best interests.

2.    Alleged violation of Article 13 of the Convention

(a)    The parties’ submissions

46.  The applicant complained that she had not had an effective remedy at her disposal with regard to her complaint under Article 8.

47.  The Government disagreed, making reference to the criminal proceedings against E. initiated by the Centre.

(b) The Court’s assessment

48.  The general principles applicable to the instant complaint are summarised in the case of M.S.S. v. Belgium and Greece ([GC], no. 30696/09, §§ 288-92, ECHR 2011).

49.  The Court observes that the proceedings at issue concerned the de facto establishment of the applicant’s custody rights. It is thus clear that the case falls within the category of cases which risk being predetermined by their length (see Kuppinger v. Germany, no. 62198/11, § 138, 15 January 2015).

50.  In the instant case, the applicant essentially made use of two domestic remedies: she requested that the Centre enforce its decision on numerous occasions and brought criminal proceedings against E. on two occasions.

51.  The Court notes that the applicant’s requests for enforcement of the Centre’s decisions were to no avail. Similarly, the judgments rendered and sentences given in the criminal proceedings against E. were never enforced owing to various reasons (see paragraphs 20 and 22 above).

52.  The above is sufficient for the Court to conclude that in the circumstances of the instant case the applicant did not have an effective remedy regarding her complaint under Article 8 of the Convention (see Mitovi, cited above, § 76).

53.  There has, accordingly, been a violation of Article 13 taken in conjunction with Article 8 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

54.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.    Damage

55.  The applicant claimed 100,000 euros (EUR) in respect of non‑pecuniary damage.

56.   The Government submitted that this claim was unsubstantiated and excessive.

57.  The Court finds that the applicant undoubtedly suffered non‑pecuniary damage. Given the serious circumstances which followed the protracted non-enforcement of the 2015 decision (see paragraph 43 above), the Court, ruling on an equitable basis, awards the applicant EUR 7,500 in respect of non-pecuniary damage, plus any tax that may be chargeable.

B.     Costs and expenses

58.  The applicant also claimed EUR 3,914 for the costs and expenses incurred before the domestic authorities and EUR 951 for the costs incurred before the Court.

59.  The Government submitted that those amounts were excessive and unsubstantiated by evidence.

60.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see Editions Plon v. France, no. 58148/00, § 64, ECHR 2004‑IV). Regard being had to the documents in its possession, the Court considers it reasonable to award the applicant EUR 950 for the costs and expenses incurred before the Court, plus any tax that may be chargeable.

C.    Default interest

61.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the application admissible;

2.      Holds that there has been a violation of Article 8 of the Convention;

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

4.      Holds

(a)  that the respondent State is to pay the applicant, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)        EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)      EUR 950 (nine hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

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

5.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 16 January 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

   Abel Campos                                                                        Aleš Pejchal
       Registrar                                                                              President