Communicated on 1 September 2016
SECOND SECTION
Application no. 19601/16
Miomir ADŽIĆ
against Croatia
lodged on 7 April 2016
STATEMENT OF FACTS
The applicant, Mr Miomir Adžić, is a national of the United States of America, who was born in 1968 and lives in Charlotte, North Carolina (the United States). He is represented before the Court by Ms I. Bojić, an advocate practising in Zagreb.
A. The circumstances of the case
The facts of the case, set out in detail in the Court’s judgment in the case of Adžić v. Croatia, no. 22643/14, §§ 6-57, 12 March 2015, may be summarised as follows.
On 7 June 2008 the applicant married Ms K.A., a Croatian national. On 29 November 2008 K.A. gave birth to their son, N.A. In May 2009 she moved to the United States of America to join her husband.
In June 2011 the applicant’s wife and son spent their summer holidays in Croatia. They were supposed to return to the United States on 31 August 2011. Instead, the applicant’s wife informed him that she and their son were to remain in Croatia and that she had brought a civil action against him there, seeking a divorce.
Upon the applicant’s request under the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”), on 14 October 2011 the Zagreb Municipal Civil Court (Općinski građanski sud u Zagrebu) instituted non-contentious proceedings for the return of his son.
Eventually, after one remittal and without holding a single hearing, the Zagreb Municipal Civil Court by a decision of 21 May 2014 dismissed the applicant’s request for his son to be returned. It first held that the applicant’s wife’s removal of their son from the United States to Croatia was “wrongful” within the meaning of the Hague Convention. It then held, relying exclusively on the opinion and report of the local social welfare centre and the opinion of the forensic expert in psychiatry, that the applicant’s son’s return to the United States would expose him to risk envisaged in Article 13 paragraph 1 (b) of the said Convention, but only if he returned without his mother. However, since the applicant had not proved that she could freely return to the United States and get a job there, the court concluded that the conditions for refusing the return of the child set forth in that Article had been met. Specifically, the court established that the United States Permanent Resident Card (hereafter “green card”), issued to the applicant’s wife on 6 September 2011, which the applicant had given her as late as 29 May 2013, was no longer valid because she had stayed outside the United States for more than 365 days. The applicant could have prevented that by giving her the green card earlier, while it had still been valid.
On 11 June 2014 the applicant appealed against that decision. He referred to procedural errors, incomplete findings of facts, and misapplication of the substantive law as grounds for appeal. In particular, the applicant submitted that the first-instance court had, in breach of the principle of adversarial hearing, not held a single hearing in the case, and that it had not informed him of its decision to obtain an opinion from a forensic expert in psychiatry, thus preventing him from objecting to the choice of the expert. He further complained that he had not been involved in the expert’s assessment, even though he had previously expressed willingness to make himself available for such an assessment. The applicant also stated that the court had required him to prove that his wife could return to the United States and find a job there, instead of asking her to prove that she could not. It had thereby unjustifiably shifted the burden of proof to him as regards those matters. Moreover, as regards those matters the court had drawn the wrong conclusions from the evidence presented, and had embarked on an interpretation of foreign law it was not familiar with. Lastly, the applicant argued that the first-instance court had wrongly applied Article 13 paragraph 1 (b) of the Hague Convention.
By a decision of 22 October 2014 the Zagreb County Court (Županijski sud u Zagrebu) dismissed the applicant’s appeal and upheld the first-instance decision.
On 29 December 2014 the applicant lodged a constitutional complaint against the second-instance decision. He complained of a violation of his right to fair procedure guaranteed by Article 29 paragraph 1 of the Croatian Constitution, in particular of the breach of his right to oral hearing and of the principle of equality of arms and adversarial hearing. The applicant also complained of a violation of his right to respect for family life guaranteed by Article 35 of the Croatian Constitution. In addition, the applicant explicitly relied on Articles 6 § 1 and 8 of the Convention.
By a decision of 28 October 2015 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s constitutional complaint and served its decision on his representative on 4 December 2015.
It would appear from the reasons given by the Constitutional Court that it examined only the alleged violation of the applicant’s right to fair procedure because it seems to have considered that the alleged violation of his right to family life had been addressed by the Court when finding a violation of that right in the judgment of 12 March 2015 (see Adžić, cited above).
B. Relevant international law
1. The relevant Articles of the Hague Convention on the Civil Aspects of International Child Abduction, which entered into force in respect of Croatia on 1 December 1991, read as follows:
Article 12
“Where a child has been wrongfully removed or retained in terms of Article 3 and at the date of commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.
The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.
Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.”
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) ...
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.”
COMPLAINTS
1. The applicant complains under Article 6 § 1 of the Convention that the proceedings for return of the child were unfair. In particular, he complains that (a) the principle of adversarial hearing was breached in that the first-instance court did not inform him of the decision to obtain an opinion from a forensic expert and because he was not involved in the expert’s assessment, and (b) there was a breach of his right to oral hearing in that the courts did not hold a single hearing in the case.
2. The applicant also complains under Article 8 of the Convention that by dismissing his request for return of the child the domestic courts breached their positive obligation to reunite him with his son and thus violated his right to respect for his family life.
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:
(a) Has there been a breach of the applicant’s right to an oral hearing in the present case given that no hearings were held?
(b) Was the principle of equality of arms or adversarial hearing respected given that the first-instance court did not inform the applicant of the decision to obtain an opinion from a forensic expert and that he was not involved in the expert’s assessment?
2. Was the refusal of the domestic courts to order the return of the applicant’s son contrary to the relevant provisions of the Hague Convention on the Civil Aspects of International Child Abduction, and therefore in breach of the State’s positive obligation under Article 8 of the European Convention on Human Rights to reunite parents with their children and, consequently, of his right to respect for family life? In particular:
(a) Did the domestic courts require the applicant to prove that his wife could return to the United States and find a job there, instead of asking her to prove that she could not? If so, did they unjustifiably shifted the burden of proof to him as regards those matters, contrary to Article 13 § 1 of the Hague Convention (see X v. Latvia [GC], no. 27853/09, § 116, ECHR 2013)?
(b) Did the domestic courts construe the exception set out in Article 13 § 1 (b) of the Hague Convention too wide, which exception must be interpreted strictly (see X v. Latvia [GC], no. 27853/09, § 116, ECHR 2013)?
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