Communicated on 9 March 2015
THIRD SECTION
Application no. 42707/10
Suzana CVETKOVIĆ
against Serbia
lodged on 21 July 2010
STATEMENT OF FACTS
1. The applicant, Ms Suzana Cvetković, is a Serbian national, who was born in 1981 and lives in Niš. She is represented before the Court by Ms J.Spasić, a lawyer practising in Vlasotince.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The first set of civil proceedings, the constitutional proceedings, and other related events
3. On 2 February 1999 the applicant gave birth to her daughter A.C.
4. On 30 January 2000 the applicant married V.C., her daughter’s biological father.
5. On 1 February 2005 V.C. lodged a claim with the Niš Municipal Court, seeking dissolution of the marriage, custody of A.C. and child maintenance.
6. On 22 July 2005 V.C. forcibly removed A.C. from the applicant’s custody and, in so doing, assaulted the latter physically, knocking her unconscious.
7. On 25 July 2005 the Municipal Court issued an interim custody order, requiring that V.C. surrender custody of A.C. to the applicant until the resolution of the entire matter at second instance). The actual transfer of custody, however, never took place.
8. On 14 January 2008 the Municipal Court ruled in favour of the plaintiff. The marriage was thus dissolved, V.C. was granted custody of A.C. and the applicant was ordered to contribute towards her maintenance on a monthly basis. Lastly, the court held that the applicant was entitled to spend time with A.C. in the premises of the local social services centre (SCC) every Saturday between 10.00 a.m. and 12.00 a.m., until such time as a different access arrangement might be warranted.
9. On 12 June 2008 and 28 May 2009 the Niš District Court and the Supreme Court of Serbia upheld the Municipal Court’s judgment at second and third instance, respectively.
10. All of the above-mentioned courts reasoned that, “notwithstanding her earlier forcible removal from ... [the applicant’s custody] ...”, it was in the best interests of A.C. to remain with her father since a separation could prove detrimental psychologically. In support of this conclusion, the courts referred to a separate opinion of the Doljevac SCC, as well as an expert’s report, stating that it would indeed be advisable for A.C. to remain in the environment to which she had become accustomed, despite the fact that the applicant was otherwise deemed as a fully competent parent.
11. On 16 March 2010 the applicant lodged an appeal with the Constitutional Court, alleging a breach of her parental and family rights. She essentially complained about the non-enforcement of the Municipal Court’s interim custody order of 25 July 2005, as well as the continuing non-enforcement of her access rights up until March 2010. The applicant lastly argued that the Supreme Court’s ultimate ruling on the issue of A.C.’s custody had failed to take into account the child’s best interests and had instead retroactively endorsed V.C.’s violent and unlawful conduct.
12. On 15 March 2012 the Constitutional Court dismissed the complaint regarding the interim custody order of 25 July 2005 as out of time, i.e. having been lodged more than 30 days after the applicant had been served with the District Court’s judgment of 12 June 2008. With respect to the applicant’s complaint regarding the Supreme Court, the Constitutional Court rejected it on the merits, entirely accepting its reasoning.
2. The criminal proceedings
13. On 19 October 2007 the Niš Municipal Court found V.C. guilty of unlawfully removing A.C. from the applicant’s custody and sentenced him to six months’ imprisonment, suspended for a period of two years.
3. The second set of civil proceedings
14. On 12 October 2012 the Niš Municipal Court ruled in favour of the applicant, amending its earlier ruling of 14 January 2008. The court hence granted custody of A.C. to the applicant, and ordered V.C. to contribute towards her maintenance on a monthly basis. In its reasoning the court explained that A.C. had stated that she now wanted to live with the applicant and that V.C. himself had no longer had any objections to this arrangement. This judgment became both final and enforceable by 10 November 2012 and A.C. moved to the applicant’s flat shortly thereafter.
4. Other relevant information
15. Despite several attempts to enforce the competent courts’ child custody and access orders, of 25 July 2005 and 14 January 2008 respectively (see paragraphs 7 and 8 above), the applicant apparently had no contact with A.C. between 22 July 2005 and 19 August 2012. The enforcements failed, according to the applicant, due to the inactivity and/or incompetence of the respondent State’s authorities and the refusal of V.C. to co-operate. It would further appear that several fines were imposed on V.C. but ultimately to no avail. Lastly, there was no attempt to take A.C. forcibly (see paragraph 17 below), seemingly due to the authorities’ fear of how this would impact A.C.’s well-being.
B. Relevant domestic law
1. The Family Act (Porodični zakon; published in the Official Gazette of the Republic of Serbia – OG RS – no. 8/05)
16. Article 65 §§ 3 and 4 states that the opinion of a child shall be given due consideration in respect of all matters and within proceedings which concern his or her rights, whilst taking into account the child’s age and maturity. Further, a child who is ten years old may freely and directly express an opinion whenever his or her rights are at stake.
2. The Enforcement Procedure Act (Zakon o izvršnom postupku; published in OG RS nos. 125/04)
17. Article 224, while placing special emphasis on the best interests of the child, states that there shall be an initial period of three days for voluntary compliance with a child custody and/or access order. Beyond that, however, fines shall be imposed and, ultimately, if necessary, the child taken forcibly, in co-operation with the local SCC.
C. The Council of Europe Convention on preventing and combating violence against women and domestic violence
18. The relevant Articles of the Council of Europe Convention on preventing and combating violence against women and domestic violence of 25 January 1996, which entered into force on 1 August 2014 and has been ratified by Serbia, read as follows:
Article 3 – Definitions
“For the purpose of this Convention:
a “violence against women” is understood as a violation of human rights and a form of discrimination against women and shall mean all acts of gender-based violence that result in, or are likely to result in, physical, sexual, psychological or economic harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life;
b “domestic violence” shall mean all acts of physical, sexual, psychological or economic violence that occur within the family or domestic unit or between former or current spouses or partners, whether or not the perpetrator shares or has shared the same residence with the victim;
...”
Article 31 – Custody, visitation rights and safety
“1 Parties shall take the necessary legislative or other measures to ensure that, in the determination of custody and visitation rights of children, incidents of violence covered by the scope of this Convention are taken into account.
2 Parties shall take the necessary legislative or other measures to ensure that the exercise of any visitation or custody rights does not jeopardise the rights and safety of the victim or children.”
...”
19. The relevant part of the Explanatory Report to the Council of Europe Convention on preventing and combating violence against women and domestic violence reads as follows:
Article 31 – Custody, visiting rights and safety
“175. This provision aims at ensuring that judicial authorities do not issue contact orders without taking into account incidents of violence covered by the scope of this Convention. It concerns judicial orders governing the contact between children and their parents and other persons having family ties with children. In addition to other factors, incidents of violence against the non-abusive carer as much as against the child itself must be taken into account when decisions on custody and the extent of visitation rights or contact are taken.
176. Paragraph 2 addresses the complex issue of guaranteeing the rights and safety of victims and witnesses while taking into account the parental rights of the perpetrator. In particular in cases of domestic violence, issues regarding common children are often the only ties that remain between victim and perpetrator. For many victims and their children, complying with contact orders can present a serious safety risk because it often means meeting the perpetrator face-to-face. Hence, this paragraph lays out the obligation to ensure that victims and their children remain safe from any further harm.”
D. The Handbook for Legislation on Violence against Women, Department of Economic and Social Affairs, Division for the Advancement of Women, United Nations, New York, 2010
20. This Handbook is intended “to assist States and other stakeholders to enhance existing, or develop new laws to protect women”.
3.10.8.2. Addressing child custody in protection order proceedings (recommendation)
“Legislation should include the following provisions regarding child custody and visitation in protection order proceedings:
• presumption against award of custody to the perpetrator;
...”
3.13. Family law (recommendation)
“Legislation should guarantee the following and amend all relevant provisions in family law to reflect this:
...
• careful screening of all custody and visitation cases so as to determine whether there is a history of violence;
• a statutory presumption against awarding child custody to a perpetrator;
...
• child abuse and neglect proceedings should target the perpetrators of violence and recognize that the protection of children is often best achieved by protecting their mothers.”
COMPLAINTS
21. The applicant refers to various provisions of the Convention, as well as the Protocols thereto. In substance, however, she complains that for a period of more than seven years she had had no contact with her child due to the respondent State’s failure to enforce its own rulings issued in this regard. The applicant further complains that the Supreme Court’s judgment of 28 May 2009, granting custody of A.C. to V.C., as well as the Constitutional Court’s subsequent affirmation thereof, had both been arbitrary, effectively amounting to an endorsement of V.C.’s prior violent behaviour.
QUESTIONS TO THE PARTIES
1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, did she raise before the Constitutional Court, at least in substance, the complaint regarding the respondent State’s alleged failure to enforce the access order contained in the Niš Municipal Court’s final judgment of 14 January 2008 (see Vučković and Others v. Serbia [GC], no. 17153/11, § 72, 25 March 2014)?
2. Has there been a violation of Article 8 of the Convention? In particular, has the applicant suffered a breach of her right to respect for her family life as a consequence of the respondent State’s failure to enforce the access order contained in the Niš Municipal Court’s final judgment of 14 January 2008? Also, were the reasons adduced in the Supreme Court’s judgment of 28 May 2009, as subsequently endorsed by the Constitutional Court itself, relevant and sufficient, particularly as regards the forcible and unlawful removal of A.C. from the applicant’s custody on 22 July 2005 (see, for example, Diamante and Pelliccioni v. San Marino, no. 32250/08, § 182, 27 September 2011)?
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