Communicated on 28 May 2014
FIRST SECTION
Application no. 22643/14
Miomir ADŽIĆ
against Croatia
lodged on 12 March 2014
STATEMENT OF FACTS
The applicant, Mr Miomir Adžić, is an American national, who was born in 1968 and lives in Charlotte. He is represented before the Court by Ms I. Bojić, a lawyer practising in Zagreb.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 7 June 2008 the applicant married Ms K., a Croatian citizen, in Sarajevo (Bosnia and Herzegovina). On 29 November 2008 K. gave birth to their son, N. In May 2009 they started living together in the United States of America.
In June 2011, K. and N. spent their summer holidays in Croatia. They were supposed to return to the USA on 31 August 2011. Instead, K. wrote an email to the applicant, informing him that she and N. were to remain in Croatia and that she had filed a petition for divorce with the Zagreb Municipal Civil Court (Općinski građanski sud u Zagrebu).
1. Non-contentious proceedings for return of the child
On 7 September 2011, relying on the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”), the applicant instituted the proceedings for return of N. with the Ministry of Health and Social Welfare (Ministarstvo zdravstva i socijalne skrbi). On 14 October 20011 the Ministry of Health and Social Welfare forwarded the applicant’s request to the Zagreb Municipal Civil Court and thus instituted non-contentious proceedings for the return of N.
On 15 March 2012 the Zagreb Municipal Civil Court dismissed the applicant’s request. The relevant part of that decision reads as follows:
“... having regard to the fact that the separation of N. from his mother and from a safe environment would without a doubt have harmful and traumatic consequences for his psychological development and that the acceptance of the applicant’s request might cause psychological trauma to the child and place him in unfavourable position within the meaning of Article 13 § 1 (b) of the [Hague] Convention, and having regard to the mother’s fear that the child would, upon his return to the USA, be subject to mental and verbal abuse, which fear was deemed justified by the psychologist and the social worker of the Social Welfare Centre..., and having regard to the fact that on 12 July 2011 the proceedings for divorce of the parties were instituted, in which proceedings the court should decide with which parent the child will live and on the access rights of the other parent, the claimant’s request was to be dismissed, without violating Article 8 of the Human Rights Convention or Article 9 of the Convention on the Rights of a Child, it was decided as in the operative part of this judgment.”
The applicant appealed against that decision, arguing that the Zagreb Municipal Civil Court had committed several procedural breaches, had failed to thoroughly establish the facts and had wrongfully applied Article 13 (b) of the Hague Convention. In particular, the applicant alleged that some submissions of the defendant had been served on him together with the decision, in breach of the equality of arms.
On 2 July 2012 the Zagreb County Court (Županijski sud u Zagrebu) accepted the applicant’s appeal, quashed the first-instance decision and remitted the case. The relevant part of that decision reads as follows:
“... the first-instance court partially based the impugned decision on undisputed facts, and partially, and in the relevant part, on the allegations and submissions of the defendant... even though it failed to give an opportunity to the plaintiff to comment on them... and therefore the plaintiff’s appeal was to be accepted, the first-instance decision was to be quashed and the case was to be remitted...”
On 27 August 2012 the decision of the Zagreb County Court was served on the Zagreb Municipal Civil Court.
To the present day, the Zagreb Municipal Civil Court did not schedule a hearing in the fresh set of proceedings. The proceedings are still pending.
2. Proceedings following the applicant’s request for protection of the right to a hearing within a reasonable time
On 17 January 2013 the applicant lodged a complaint with the Zagreb County Court about the length of the above proceedings. He argued that the proceedings had lasted for one year and four months without a scheduled hearing or a decision rendered, contrary to Article 11 § 1 of the Hague Convention and Article 8 of the Convention.
The proceedings for protection of the applicant’s right to a hearing within a reasonable time are still pending.
B. Relevant international and domestic law
1. The Hague Convention on the Civil Aspects of International Child Abduction
The relevant provisions of the Hague Convention on the Civil Aspects of International Child Abduction read as follows:
Article 11
“The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.
If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay.”
Article 13
“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that -
(a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.”
2. Courts Act
The relevant provision of the Courts Act (Zakon o sudovima, Official Gazette nos. 150/2005, 16/2007, 113/2008, 153/2009, 116/2010, 122/2010 (consolidated text), 27/2011 and 130/2011), as in force at the material time, read as follows:
Section 28
“...
(4) The higher court shall decide on the request for protection of the right to a hearing within reasonable time within six months.
...“
COMPLAINTS
The applicant complains, under Article 6 § 1 of the Convention, about the length of proceedings for the return of his son.
He also complains, under Article 8 of the Convention, that the length of proceedings for the return of his son violated his right to respect for his family life.
Finally, he complains, under Article 13 of the Convention, that he did not have an effective domestic remedy for his Convention complaints.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, is the length of proceedings in question excessive, given the particular circumstances of the case?
2. Has there been a violation of the applicant’s right to respect for his family life, contrary to Article 8 of the Convention?
3. Did the applicant have at his disposal an effective domestic remedy for his Convention complaints, as required by Article 13 of the Convention? In particular, did the applicant have an effective domestic remedy against the length of the proceedings for the return of his son?
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