Published on 18 September 2023
SECOND SECTION
Application no. 15078/23
Danijela BONJEKOVIĆ and Others
against Croatia
lodged on 31 March 2023
communicated on 28 August 2023
SUBJECT MATTER OF THE CASE
The application primarily concerns custody proceedings in which the court ordered that the second and third applicants were to live with their father, B.M., who had allegedly been violent towards them and their mother, the first applicant.
In her motion for divorce from B.M., in 2018 the first applicant sought custody of their children, the second and third applicants. During the divorce and custody proceedings, the applicant submitted various documents showing that she had filed a number of domestic violence reports against B.M., as well as that he had been found guilty of abuse of her medical information. The competent Social Welfare Centre established that the father was the more suitable parent, whereas the first applicant had allegedly been unwilling to cooperate or submit her medical documentation, and evasive in her replies. The applicant requested the court to obtain an expert report on which parent the children should live with. Although the court initially granted her motion, it renounced on such a report, allegedly after the applicant had submitted a document showing that she was fully dispensed from paying for costs of the proceedings and that any such costs would be borne by the State. The courts ultimately awarded custody of the second and third applicants to B.M.
Relying on Articles 3, 6, 8, 13 and 14 of the Convention, the applicants complain about the failure of the authorities to effectively investigate the first applicant’s allegations of domestic violence. They further complained about a number of procedural shortcomings in the custody proceedings, including the failure to commission an expert opinion or to take into consideration the domestic-violence context when deciding which parent the second and third applicants were to live with, the consequent violation of their family and private lives and discrimination of the first applicant on account of her sex.
QUESTIONS TO THE PARTIES
1. Have the State authorities complied with their positive obligations under Article 3 of the Convention to protect the applicants from alleged abuse by B.M.? In particular, did they conduct an effective investigation into the allegations of abuse by B.M. (see M. and M. v. Croatia, no. 10161/13, §§ 131 et seq., ECHR 2015 (extracts); and D.M.D. v. Romania, no. 23022/13, §§ 40 et seq., 3 October 2017)
2. Has there been a violation of the applicants’ right to respect for their private and family life, contrary to Article 8 of the Convention (see M. and M. v. Croatia, no. 10161/13, §§ 169 et seq., ECHR 2015 (extracts); and Petrov and X v. Russia, no. 23608/16, §§ 98-102, 23 October 2018)? In particular, were the reasons adduced by the domestic courts in the custody proceedings relevant and sufficient in the circumstances? Was the decision‑making process fair and such as to ensure due respect for the various interests safeguarded by Article 8, notably the best interests of the children?
3. Did the applicants have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, were the domestic court decisions sufficiently reasoned (cf. Anđelković v. Serbia, no. 1401/08, § 24, 9 April 2013)?
4. Has the first applicant been discriminated against on account of her sex, in breach of Article 14 taken in conjunction with Article 3 and/or Article 8 of the Convention?
APPENDIX
Application no. 15078/23
No.
Applicant’s Name
Year of birth
Nationality
Place of residence
1.
Danijela BONJEKOVIĆ
1991
Croatian
Draganić
2.
Nika MALEŠIĆ
2010
Croatian
Krašić
3.
Tina MALEŠIĆ
2013
Croatian
Krašić