SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 45604/08
by Danica DAČIĆ
against Serbia
The European Court of Human Rights (Second Section), sitting on 7 December 2010 as a Committee composed of:
András Sajó, President,
Dragoljub Popović,
Kristina Pardalos, judges,
and Françoise Elens-Passos, Deputy Registrar,
Having regard to the above application lodged on 16 September 2008,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Danica Dačić, is a Serbian national who was born in 1973 and lives in Belgrade. She was represented before the Court by Ms T. Drobnjak, a lawyer practising in Belgrade. The Serbian Government (“the Government”) were represented by their Agent, Mr S. Carić.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Introduction
On an unspecified date the applicant started living in a common law partnership with M.P and on 21 February 1999 their daughter I.P. was born.
In 2000 the applicant and M.P. separated, but I.P. remained with M.P.
On 5 April 2001 the applicant and M.P. reached an agreement whereby the latter was to gain custody of I.P and the former would have her access rights guaranteed. On the same date this agreement was formally endorsed by the Zvezdara branch of the Social Care Centre (Centar za socijalni rad) in Belgrade.
2. The civil proceedings
On 21 November 2005 the applicant filed a claim against M.P. with the Third Municipal Court (Treći opštinski sud) in Belgrade.
On 20 March 2007 the Third Municipal Court: (i) granted custody of I.P. to the applicant; (ii) ordered M.P. to pay monthly child maintenance; and (iii) specified M.P.’s access rights.
By 5 September 2007 this judgment became final.
On 15 April 2008 the Supreme Court (Vrhovni sud Srbije) rejected the respondent’s appeal on points of law (revizija).
3. The enforcement proceedings
On 28 January 2008 the applicant filed an enforcement request with the Fourth Municipal Court (Četvrti opštinski sud) in Belgrade.
On 11 March 2008 the Fourth Municipal Court issued an enforcement order whereby M.P. was given three additional days to surrender I.P. to the applicant. The court further held that should M.P. fail to do so he would be fined, and stressed that even a forcible transfer of custody might ultimately be called for.
On 14 April 2008 the bailiffs attempted to enforce the said interim access order but, apparently, there was no one to be found at the respondent’s address.
Following two another unsuccessful bailiff’s attempts to enforce the order, on 21 January 2009 two men took coercively the applicant’s daughter from her father in front of her school and brought her back to the applicant.
On 28 January 2009 the said enforcement order was served on M.P.
On 2 February 2009 M.P. objected to the enforcement of the order.
On 8 May 2009 the Municipal Court terminated the enforcement proceedings only in respect of the child’s reunion with the applicant and scheduled the next session for 20 May 2009.
4. Constitutional complaint
On 11 July 2008 the applicant lodged an appeal with the Constitutional Court of the Republic of Serbia (hereinafter “the Constitutional Court”) in regards to her complaints before the Court.
These proceedings are apparently still pending.
B. Relevant domestic law
The relevant domestic law is set out in the Court’s judgments of Vinčić and Others v. Serbia, nos. 44698/06, 44700/06, 44722/06, 44725/06, 49388/06, 50034/06, 694/07, 757/07, 758/07, 3326/07, 3330/07, 5062/07, 8130/07, 9143/07, 9262/07, 9986/07, 11197/07, 11711/07, 13995/07, 14022/07, 20378/07, 20379/07, 20380/07, 20515/07, 23971/07, 50608/07, 50617/07, 4022/08, 4021/08, 29758/07 and 45249/07, §§ 24-35, 1 December 2009), V.A.M. v. Serbia (no. 39177/05, §§ 56-59 and 65-75, 13 March 2007) and Tomić v. Serbia (no. 25959/06, §§ 55-62 and 68-71, 26 June 2007).
COMPLAINTS
Under Articles 6 § 1, 8 and 13 of the Convention, the applicant complains about the length of the civil suit, taken together with the subsequent enforcement proceedings, as well as the absence of an effective domestic remedy in this respect.
THE LAW
The Government invited the Court to declare the application inadmissible for non-exhaustion of domestic remedies. In particular, the Government submitted that the applicant appealed to the Constitutional Court, wherein her appeal has been still pending.
The applicant confirmed that she had indeed lodged a constitutional complaint, but contested its effectiveness.
The above objection falls to be examined under Article 35 § 1 of the Convention which reads as follows:
“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”
The Court recalls that it has already held that a constitutional appeal should, in principle, be considered as an effective domestic remedy within the meaning of Article 35 § 1 of the Convention in respect of all applications introduced as of 7 August 2008 against Serbia (see Vinčić and Others v. Serbia, cited above, § 51). It does not see any reason to hold otherwise in the present case.
The Court notes that the present application was introduced on 16 September 2008. It further observes that the substance of this complaint has been brought before the domestic constitutional jurisdiction on 11 July 2008. As stated by both the Government and the applicant, the Constitutional Court has not yet ruled on the applicant’s appeal. In these circumstances, the Court considers that it would be premature to take a position on the substance of this application.
Thus, the Court finds that the application must be rejected as inadmissible for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Françoise Elens-PassosAndrás Sajó
Deputy RegistrarPresident
Full & Egal Universal Law Academy