Communicated on 14 May 2018
SECOND SECTION
Application no. 13178/18
Slavica BURMAZOVIĆ
against Turkey
lodged on 9 March 2018
SUBJECT MATTER OF THE CASE
The application concerns the abduction of the applicant’s three children by their father and the Turkish authorities’ inability to enforce the return order issued with respect to those children.
The applicant, a Serbian national, had three children with a certain E.S.Y., a Turkish national. Their children A., E. and T. were born in Serbia in 2004, 2005 and 2011, respectively. Following the couple’s separation in 2013, the children stayed with the applicant in Serbia. In August 2015 E.S.Y. took all three children to Turkey and subsequently refused to return them to the applicant.
On 13 October 2015 the Third Basic Court in Belgrade gave full custody of the children to the applicant as a provisional measure and ordered their return to her.
Following an application by the applicant, the Turkish Ministry of Justice initiated proceedings in her name, requesting the return of the children to Serbia pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, and on the basis of Law no. 5717 on the Civil Aspect and Scope of International Child Abduction.
On 2 March 2016 the Mersin Family Court ruled on a provisional measure, stating that E.S.Y. and the children could not leave Turkish territory.
11 March 2016 the court accepted the applicant’s case and held that the children should be returned to Serbia and be given to their mother. The Court of Cassation upheld that judgment on 26 May 2016.
Later on the same year the Turkish authorities informed the applicant that the children’s whereabouts could not be determined.
The applicant complains of a violation of her right to respect for family life and right to a fair trial on account of the Turkish authorities’ failure to enforce the court order requiring the return of her children to Serbia. She relies on Articles 6 and 8 of the Convention.
QUESTIONS tO THE PARTIES
1. When did the judgment of the Mersin Family Court dated 11 March 2016 become enforceable? More specifically, did E.S.Y. request the rectification of the judgment following the decision of the Court of Cassation dated 26 May 2016? If so, what was the date of the final decision?
2. Did the authorities start the enforcement procedure when the judgment ordering the return of the applicant’s children to Serbia became final, in line with Article 18 of Law no. 5717 on the Civil Aspect and Scope of International Child Abduction and Section 25 of the Enforcement and Bankruptcy Act (Law no. 2004)? Was the applicant requested to initiate enforcement proceedings by the authorities, as she alleged? Were such proceedings initiated following her requests to that effect, lodged on 27 December 2016 and 18 April 2017, respectively?
3. What were the measures taken by the domestic authorities to enforce the return order?
Taking account of Article 7 of the Hague Convention on the Civil Aspects of International Child Abduction, what steps were taken by the authorities both during the proceedings before the Mersin Family Court and following the judgment requiring the return of the children to Serbia?
In particular, did the authorities take all measures required,
(a) to discover the whereabouts of the children, which were known at one point during the course of the proceedings as the children were brought before the Mersin Family Court and were enrolled in a school in Turkey;
(b) to prevent further harm to the children or prejudice to the applicant by taking provisional measures, in particular by securing that E.S.Y. and the children did not leave Turkish territory in line with the Family Court’s decision dated 2 March 2016;
(c) to bring about an amicable resolution by facilitating cooperation between the parents;
(d) to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the children?
The Government are invited to inform the Court on the legal and practical tools available to the authorities to enforce a return order, where the parent who has wrongfully removed a child refuses to cooperate, and where the whereabouts of that parent or those of the child are uncertain.
4. More generally, has there been a violation of the applicant’s right to respect for her family life, contrary to Article 8 of the Convention, as a result of the Turkish authorities’ inability to secure the safe return of her three children and to enforce the court order to that effect? In particular, were the measures taken by the authorities adequate and efficient in line with the State’s positive obligation under Article 8 of the Convention inherent in an effective respect for family life (Ignaccolo-Zenide v. Romania, no. 31679/96, §§ 89-113, ECHR 2000‑I)?
5. Did the authorities’ failure to enforce the judgment of the Mersin Family Court dated 11 March 2016 violate the applicant’s right to a fair trial under Article 6 § 1 of the Convention?
The Government are invited to provide the Court with all relevant information and documents concerning the case, including but not limited to all correspondence of the Turkish authorities with the applicant as well as with the Serbian authorities, the decisions of the Turkish courts, all petitions submitted by the parties during the course of the proceedings, and documents pertaining to the measures taken by the authorities to determine the whereabouts of the children and to secure their return to Serbia.
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