SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 9560/09
by Živomir JOVANOVIĆ
against Serbia
The European Court of Human Rights (Second Section), sitting on 14 September 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 9 February 2009,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Živomir Jovanović, is a Serbian national who was born in 1970 and lives in Svilajnac. He is represented before the Court by Mr D. Milosavljević, a lawyer practising in Despotovac. The Serbian Government (“the Government”) are represented by Mr S. Carić, the Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The custody proceedings
On 19 September 2005 the Municipal Court (Opštinski sud) in Svilajnac, inter alia, granted custody of M.J., born in 2001, to his father, the applicant.
On an unspecified date thereafter this judgment became final.
2. The enforcement proceedings
Since S.S., the child's mother, refused to comply with the said judgment, the applicant filed an enforcement request with the Municipal Court in Žagubica.
On 22 February 2007 the court ordered the enforcement of the judgment, instructing S.S. to surrender M.J to the applicant.
Following numerous attempted enforcements, as well as the imposition of the number of fines on S.S., on 9 April 2009 the Municipal Court in Žagubica ordered the forcible transfer of custody. The child, however, has not yet been surrendered to his father.
3. The proceedings for the reverse of custody
On 14 January 2006 the applicant went to serve a prison sentence.
On 3 May 2006 the Municipal Court in Svilajnac temporarily granted custody of M.J. to his mother, until the applicant served the sentence. On 22 May 2006 the District Court in Jagodina upheld this decision.
On 17 May 2006 S.S. initiated proceedings seeking to be permanently granted custody of M.J. The suit was discontinued on procedural grounds.
By the end of 2007 S.S. filed a new suit requesting to be granted the custody of M.J. These proceedings are still pending.
COMPLAINTS
Relying on various provisions of the Convention, in substance, the applicant complained about the non-enforcement of the child custody order adopted on 22 February 2007.
THE LAW
The applicant complained that the final custody order remains non-enforced. His complaints raise issues under Articles 6 and 8 of the Convention.
Article 6, insofar as relevant, reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
Article 8 reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The Government submitted that had the applicant appealed to the Constitutional Court of the Republic of Serbia (hereinafter “the Constitutional Court”), the impugned situation would have been remedied.
The applicant did not contest this claim.
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 has already held that a constitutional appeal should 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, 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, § 51, 1 December 2009).
It further notes that the present application was introduced on 9 February 2009. Before submitting his application to the Court, the applicant has neither attempted to exhaust the constitutional complaint, nor shown that it would have been for any reason inadequate or ineffective in the particular circumstances of his case. The Court sees no special circumstances absolving the applicant from the obligation to use it (see Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, § 67).
The application must therefore be rejected 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