Communicated on 6 January 2014
SECOND SECTION
Application no. 19857/10
Erika KALOČAI SOBONJA
against Serbia
lodged on 29 March 2010
STATEMENT OF FACTS
1. The applicant, Ms Erika Kaločai Sobonja, is a Serbian national, who was born in 1969 and lives in Novi Sad. She is represented before the Court by Ms D. Ðapić, a lawyer practising in Sombor.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant and as they appear from the documents submitted by her, may be summarised as follows.
1. Events leading to the first set of custody proceedings
3. The applicant and her husband K.T. had two children, a boy A, born on 23 October 1996 and a girl B, born on 7 July 1998. The family lived together until an unspecified date in August 1998, when the applicant moved to her parents’ house with B. K.T. allegedly did not allow the applicant to take their son A with her the following day.
4. The applicant’s action for divorce and child custody of 1998 was declared inadmissible as the domestic law did not allow application for a divorce when a child of the marriage was younger than one year old. Nevertheless, on 27 October 1998 the Sombor Social Care Centre (hereinafter “the SSCC”) on its own motion provisionally granted custody of the children to the applicant and specified K.T.’s access rights in respect of both children. This interim order was upheld on appeal by 29 December 1999, but apparently remained unenforced until it had become obsolete (see paragraph 6 below).
2. First set of custody proceedings (P. 994/99) and ensuing enforcement proceedings (I. 136/03)
5. On 8 July 1999 the applicant applied for divorce, sole custody of both children and child maintenance (razvod, vršenje roditeljskog prava i izdržavanje). K.T. (“the respondent”) filed a counter-claim four days later, seeking sole custody of both children. In 2000 the SSCC and a clinical psychologist recommended that custody be awarded to the applicant.
6. On 21 February 2001 the Sombor Municipal Court dissolved the marriage between the applicant and the respondent, awarded sole custody of the children to the applicant (poverio decu na negu, staranje i vaspitavanje majci), specified the respondent’s access rights and ordered him to pay child maintenance. On 21 August 2002 and 18 November 2002 that judgment was upheld by the Sombor District Court and the Supreme Court respectively.
7. When the applicant went to the respondent’s house on 18 November 2002 to take A, the respondent allegedly threatened her. He also said that the 2001 judgment did not have any importance for him and that he would never comply with it. On several subsequent occasions when the applicant wished to take A, the respondent prevented any contact between them.
8. On 28 February 2003 the applicant filed a motion with the Sombor Municipal Court (hereinafter “the enforcement court”) for the enforcement of the judgment of 21 February 2001. On 15 April 2003 the parties agreed to the gradual transfer of A from the respondent to the applicant and that, for that purpose, A was to spend seven days at his mother’s home. On 16 April A spent the afternoon at the applicant’s home. The respondent took A from the kindergarten the following day and prevented any further contact between him and the applicant.
9. On 22 May 2003 the enforcement court issued an enforcement order, specifically requiring the respondent to surrender A to the applicant within eight days from the day the order was served on him. It added that, should he fail to do so, he would have to pay a fine, which would be enforced ex officio, in the amount of 5,000 dinars (“RSD”; at that time approximately 75 euros (“EUR”)), or if the fine could not be enforced, it would be converted into imprisonment. The court also requested the SSCC to organise a month-long preparation of A for his transfer to the applicant. It would appear that the fine remained unenforced as the respondent failed to comply with the order.
10. On 25 July 2003 the SSCC informed the enforcement court that its Psychology Advisory Team had initiated a three-month psychological programme of the family (savetodavno-terapijski rad) to enhance the parents’ collaboration and suggested a temporary stay of the enforcement. At the enforcement hearing held on 6 November 2003, the SSCC experts informed the court that the treatment had been prolonged and that they could not pronounce on the relationship between the parents and the child’s psychological readiness to be transferred to the applicant. According to one expert, the treatment had been extended “to enable A’s transfer to the applicant”, while, according to the other, “the treatment was not prolonged with the aim of smoothing A’s transfer, but to facilitate any kind of substantial contact between the parties and the children”.
11. Following the respondent’s request and apparently in view of the SSCC opinion of November 2003 (see paragraphs 14 and 16 below), on 23 February 2004 the enforcement court ordered a stay of execution (prekinuo izvršenje) pending the outcome of the fresh custody proceedings (see under A.3. below). It considered that it would not be possible to enforce the custody decision at the time and that the continuation of the enforcement would not be in A’s best interests any more. On 5 July 2004 the same court, sitting in a different panel, rejected the applicant’s objection (prigovor) of 25 February 2004.
12. After A had spent the Christmas holidays in 2005 with the applicant and his sister and his attitude towards them had allegedly begun to be more positive (see paragraphs 20 and 41 below), on 18 January 2006 the applicant filed a motion for continuation of the enforcement proceedings. The enforcement court at two instances refused the motion by 25 May 2006.
13. On 11 June 2009 the enforcement court terminated (obustavio) the enforcement proceedings as the custody of A had been changed in the respondent’s favour (see paragraph 38 below).
3. Second set of custody proceedings
14. On 19 February 2003 the respondent filed a claim (tužba) for revision of the judgment of 21 February 2001, seeking sole custody of A. He also requested an interim custody order to the same effect and a ban on the enforcement of the judgment of 21 February 2001, pending the outcome of this set of civil proceedings.
15. On 14 April 2003 the Municipal Court held the first hearing and requested the SSCC to produce an expert opinion in respect of the respondent’s request for an interim custody order.
16. On 3 June 2003 the SSCC informed the court about the psychological programme which had been initiated (see paragraph 10 above). In its opinion of 3 November 2003, the SSCC stated that, due to significant changes in family relationships, i.e. an emotionally developed and functional relationship between A and the respondent for over five years, custody of A should be granted to the respondent and custody of B should remain with the applicant.
17. At the hearings held on 13 February, 7 April and 17 May 2004 the court heard three experts who had produced the above-mentioned opinion and both parties in that respect. The experts recorded a dysfunctional parental relationship, but found that both parents had a similar capacity to have custody. They explained that, due to the respondent’s systematic obstruction of any contact between the applicant and A, the SSCC had not been capable of enforcing the custody decisions in the applicant’s favour. The experts lastly stated that, despite his obstruction, they would propose to change custody in the respondent’s favour, as A had been living with him for almost six years while the relationship with the applicant had not been substantially developed.
18. On 5 October 2004 the court heard the respondent. The hearing scheduled for 21 October was adjourned on the parties’ proposal. On 11 November 2004 the court heard the applicant and decided to order an expert opinion from a child clinical psychologist.
19. On 8 February 2005 the court appointed a child psychologist from the SSCC, who had at an early stage been engaged in work with the family in question, to examine which of the parents was able to provide the most appropriate and optimal conditions for A’s successful development and growth.
20. In a report of 10 March 2005, and in her testimony of 16 December 2005 before the court, the child psychologist described the mutual relationships and the parties’ abilities to take on parental functions as follows.
Having had marital problems apparently as a result of the respondent’s aggressive behaviour, the applicant had left him in 1998. The respondent’s inadequate attempts at reconciliation, by blackmailing the applicant with not seeing their son any more, were unsuccessful. She recalled that an expert team in 2000 had correctly assessed that the mother should be awarded custody of the children. However, although “the interests of the children should have not been traded”, the 1998 interim order and 2001 custody judgment had never been enforced. Thus, the non-transfer of custody would certainly have had a serious impact on A’s behaviour and the development of his personality without his mother’s presence.
The child psychologist identified several grounds for that unsatisfactory situation. Firstly, she pointed out the issue of the general ineffectiveness of the child care system in Serbia. Secondly, the applicant, on the one hand, had logically considered that A would have more optimal conditions for good psychophysical development living with her and his sister B. On the other hand, in the efforts to enforce her rights, the applicant had shown insecurity, weakness and anxiety in the face of the respondent’s threatening behaviour. She also lacked vigour and aggressiveness to keep A with her, irrespective of the risk of provoking the respondent’s anger, justifying this with her wish to resolve the issues peacefully. Thirdly, the respondent, on the contrary, demonstrated a high level of aggression and also disrespect for the competent authorities, including the courts’ decisions, in his attempts to keep A. In addition, the respondent did not grasp the importance of A’s contact with his mother for his development and growth. He de facto programmed the child (“instrumentalizovao”) to achieve his own ends, obviously marginalising the interests of the child.
The applicant was seeing A when agreed between the parties, i.e. only on a few occasions, for 2-3 hours each time. As the inadequate contacts could not satisfy A’s need for emotional warmth, care and understanding on the mother’s part, this resulted in his cold statements, almost learned, that he would prefer to remain living with his father.
In view of the above considerations, the child psychologist considered that disrupting the current regime of A residing with the respondent would be stressful for the child. She therefore advised the court to grant split custody, in which the respondent would have custody of A and the applicant of B. She also proposed that A spend the forthcoming Christmas holidays and, in future, every second weekend in the applicant’s household. Should the father, however, fail to respect this visit regime, she found that altogether it would be less traumatic and harmful for A that the applicant retain custody and A change the habitual residence than that A stay with the respondent and meet his mother irregularly. In such a scenario, therefore, she would not advise the court to alter the custody decision of 2001.
21. In the meantime, the hearings scheduled for 11 April, 18 May and 19 September 2005 had been adjourned respectively due to the applicant’s sickness, as well as the respondent’s and the applicant’s lawyer’s other judicial commitments. The hearing scheduled for 31 October 2005 was adjourned due to a death in the applicant’s close family.
22. On 27 December 2005 the respondent amended his civil claim (preinačio tužbu). In doing so, he sought on the one hand joint exercise of parental responsibility (zajedničko vršenje roditeljskog prava) for him and the applicant in respect of their children, and on the other hand the award of custody of A (poveravanje na čuvanje, vaspitavanje i izdržavanje), while the applicant would be awarded that of B. After A spent Christmas in the applicant’s household, on 11 January 2006 the respondent filed a subsidiary civil claim, requesting the court to allow him to exercise all elements of parental responsibility as regards A alone (poveravanje na staranje, čuvanje, podizanje, vaspitavanje, obrazovanje, zastupanje, izdržavanje i upravljanje imovinom) and to exempt him from paying child maintenance for B.
23. In 2006 the court held three hearings (27 February, 9 May and 30 June) on which occasions it heard witnesses. On 18 July 2006 it ordered the regional Institute for children and youth’s health protection (“the Institute”; Institut za zdravstvenu zaštitu dece i omladine Vojvodine) to draw up an additional control expert report to determine whether the conditions for modifying the 2001 judgment had been fulfilled.
24. On 14 November 2006 the Institute informed the court that the respondent had failed to participate in interviews and examinations scheduled for 19 September 2006. On 30 January and 26 February 2007 the court ordered the Institute to produce its opinion on the basis of the applicant’s and B’s examination of 19 September 2006, as well as the court’s case-file. On 2 March 2007 the Institute informed the court that the respondent had failed to come and to submit A to an examination on one more occasion, and that the opinion could not be drawn up in a professional manner without such examination. The respondent apparently did not respond to the Institute’s third call.
25. On 8 May 2007 the court heard an expert psychologist. The court also ordered the Institute to produce its report within 30 days from the date the hearing minutes had been served on it, and ordered the respondent to comply with the Institute’s call together with A. On 20 June 2007 the court requested the Institute to examine also A’s relationship with the applicant.
26. On 10 July 2007 the Institute submitted an opinion (nalaz) to the court. As regards the respondent’s conduct, the experts noted that he had disqualified the applicant as a parent and maintained, also to A, that “the mother had abandoned him when he was a baby”. The respondent had occasionally had tempestuous and impulsive reactions, in particular when the experts insisted on A’s more regular and qualitative contact with his mother and sister. In that respect, he had minimised the importance and necessity of an emotional and close bond between the mother and the son, highlighting his role as the only caretaker. As regards the views of A, at the beginning of the interview, without being asked, A had stated that he wished to stay with his father to avoid his imprisonment. The experts reported that his wish of staying with his father had not, however, been entirely his own. Apart from not being emotionally independent, the manner and style of his verbalisation were apparently taken over from the adults’ vocabulary. The bad relationship between the parents exposed the child to a conflict of loyalty. On the request to describe his relation with his parents in his own words, A became anxious, crying, introverted and reserved.
The experts concluded that the state of affairs did not justify the revision of the 2001 judgment, but that they could not give their final response yet. In view of the dysfunctional parental relationship and inappropriate behaviour which affected A’s well-being, the experts suggested psychological therapy for the whole family in a professional institution. They suggested that A should remain in the father’s household during the treatment, but that it would be essential to have contacts with his mother at least once a week in the SSCC premises to develop a more constructive view of the applicant, and, later on, in a contact schedule that the SSCC’s team would deem opportune.
27. On 16 August 2007 the court heard the Institute’s experts, who reported, inter alia, that “A was afraid of saying that he had had a nice time at his mother’s house as he assumed that his father would be offended and hurt”. In view of these circumstances, the court ordered the SSCC to arrange for a psycho-therapeutic treatment for the whole family and suspended the proceedings for a period of six months during the duration of the treatment.
28. The SSCC apparently refused to comply with the order. According to the SSCC report of 7 December 2007, the parties were instead “tested” on their individual capacities to have custody. B was not involved as none of the experts had identified her individual problems earlier. According to the report, the parties were cooperative only when they could see an interest in the final determination of the dispute in their own favour. The institutions had for too long regulated their relations and their parental functions and capacities should be fully assumed as soon as possible. The only functional problems of A noted were related to the insecurity as with whom he would be living. The applicant was aware of the best interests of A, but had difficulties in accepting that the long-lasting residence with the respondent had provoked A’s resistance to moving to her household. The SSCC experts lastly recommended that the court take a final decision as soon as possible, instead of insisting on determining fitness in the parent’s personal characters and capacities to have custody.
29. In their report of 8 January 2008 the Institute’s psychologists noted that the SSCC had not complied with their recommendations and requests as regards the purpose and management of the psycho-therapeutic treatment for the whole family, but focused on the testing of the parent’s capacities to have custody. The experts advised that A remain living with the respondent, who was able to exercise parental rights and responsibilities alone. A’s contact with his mother and sister should be further developed and deepened, though a prerequisite for it was agreement between the parties.
30. At the hearings held on 17 January and 19 February 2008 the court heard the expert psychologists and parties.
31. On 19 February 2008 the court accepted the respondent’s civil claim, as apparently amended on 29 January 2008. In so doing, the court (i) granted sole custody of A to the respondent, while the current regime in respect of B remained unchanged; (ii) discharged the parties from paying child maintenance with regard to the child in respect of whom the other party exercised sole custody; and (iii) granted the applicant certain access rights. In its reasoning, the court stated that both parties had the ability to take on parental functions, that the respondent appeared to be a relatively good carer for A and that the scheduled contact rights would also create the conditions for development of the relationship between A and B.
32. Following the applicant’s appeal, on 16 May 2008 the Sombor District Court quashed the part of judgment concerning the custody and maintenance of A. In so doing, it stated that (i) the first-instance court had failed to determine which party had better capacities to be awarded custody of A and what would be in his own best interests; (ii) that the first-instance court should not have requested the experts to determine whether the conditions for the revision of the judgment had been fulfilled; rather it should have been the court’s own task, while the experts opinions should only assist the adjudication on the parties’ capacities and the best interests of the child; and (iii) that the SSCC’s persistence for an urgent court’s decision on whether or not the 2001 judgment should have been reversed did not allow for the proper determination thereof (for the SSCC’s comment, see paragraph 28 above).
33. In the resumed proceedings, hearings were held on 18 June and on 14 July 2008. On the later date, the court engaged expert psychologists to produce a fresh expert opinion on the case. The hearing scheduled for 2 October 2008 was adjourned at the request of the expert psychologists.
34. The parties and the children were interviewed by a team of two psychologists on 22 September 2008. In their opinion of 22 October 2008, the psychologists stated firstly that the judicial proceedings should be terminated as soon as possible, as they were harmful for the relationships between the parents and the children and the latter themselves. Further, given that A had been living for a long time with the respondent with whom he had an adequate relationship, it would be the “healthiest” for the boy to remain with his father as the change of residence could have a negative impact on the development of each child in any event.
35. Referring to Article 8 of the Convention, the applicant commented on the report’s findings as inappropriate and failing to opine on which party had better capacities to have custody, what would be in A’s best interests and what would be the latter’s developmental risks if one or the other party were awarded custody of him. Following these comments, on 21 November 2008 the psychologists submitted to the court an additional, very brief statement that (a) the respondent had better abilities to provide proper conditions for A’s development; (b) the respondent had the same capacity as the applicant to support and facilitate the children’s relationship with the other parent; (c) A’s removal to the applicant might provoke “separation disorder” and it could be only partially palliated given that the period for affection developmental had already passed in childhood; (d) a concrete manifestation of disorder could not be predicted; (e) there was no risk from A’s stay with the respondent; and (f) the greatest development risk for A was the prolongation of the judicial proceedings.
36. On 2 December 2008 the Sombor Municipal Court, referring “to the child’s wish to an extent, but predominantly to the unanimous experts’ reports provided throughout the entire proceedings”, granted sole custody of A to the respondent as being in the child’s best interests, discharged the applicant from paying maintenance for him and ordered the applicant to pay the respondent’s costs.
37. On 13 January 2009 the applicant appealed against this judgment in a very detailed manner. She complained, inter alia, that, in reaching its decision on custody, the Sombor Municipal Court had not established the relevant facts and parameters for its decision and had also failed to identify and analyse discrepancies in the experts’ reports. The court had allegedly only provided a chronological review of all the experts’ reports in 21 out of overall 22 pages. It had concluded that the transfer of custody would be in the best interests of A without any appropriate legal argumentation and/or analysis and synthesis of the experts’ findings, the latter not even being sufficiently reasoned and consistent. Further, she challenged the court’s finding that the transfer of her custody rights to the respondent was in the best interests of A, given that the respondent was not able and willing to allow the mother’s involvement in A’s upbringing. The court of first instance, as well as other relevant authorities, had therefore tolerated and rewarded the respondent’s long-lasting abuse of parental rights in defiance of earlier courts’ decisions and inappropriate use of power which had influenced A’s feeling of belonging to his household and prevented him from growing with his mother and sister.
38. On 9 March 2009 the Sombor District Court, which had full power to review all issues, upheld the judgment of 13 January 2009 on the basis of the file. The District Court found that all the experts had agreed that, in view of the parental conflicts and the child’s wishes, it would be most important to assess the risks in the child’s transfer from his father’s to his mother’s household. The experts had unanimously concluded that the placement of A in his mother’s household could be stressful and harmful for A, while he had been developing well in his father’s household. Acknowledging that the court of first instance had indeed only transcribed or summarised the relevant reports, the court pointed out that in any event this fact was irrelevant as all experts in the civil proceedings had agreed that the present regime should be inevitably sustained. The District Court found that the issue of child custody had therefore been determined on the basis of what was in the best interests of the child.
39. On 12 May 2009 the applicant lodged a further appeal on points of law. Relying on Articles 6, 8 and 17 of the Convention, as well as various provisions of the Serbian Family Act and the UN Convention on the Rights of the Child, the applicant (i) reiterated in principle her arguments from the appeal (see paragraph 37 above); (ii) challenged the fact that the District Court had failed to hold an oral hearing in second-instance given that the first-instance court had failed to establish the facts and give reasons for its decision; (iii) maintained that the courts had based their decision only on a de facto situation provoked by the passivity of the authorities in ensuring her contact with A and a long-lasting relationship of A with the father, which should not be sufficient and the most relevant reason for the ultimate decision in a custody case; (iv) insisted that A should have been gradually transferred to her in accordance with the prior orders; (v) complained that A’s and her human rights had been breached by the failure of the authorities to ensure her reunion with the child and a fair hearing in the overall case.
40. On 2 September 2009 the Supreme Court upheld the judgment of 9 March 2009. In so doing, it noted that the parties were both motivated to have custody, though the applicant in respect of both children, while the respondent only in respect of their son. On the other hand, they were in a persistent conflict, disqualifying each other as the prospective custodial parent. The Supreme Court further referred to the consistent findings of the experts that the parties did not show any motivation and willingness to accept changes necessary for the improvement of their communication, as well as that the child had been living for a long time with the respondent, with whom he had an adequate relationship, and that it would be the “healthiest” for the boy to remain with him. According to the court, all circumstances of the relevant case indicated that it would be in the child’s interests to remain living in the respondent’s household where he had been developing favourably, given that there was a possibility that the change of household would have detrimental effects on him. The Supreme Court concluded that the impugned judgments had been based on what was in the best interests of A, given that the lower courts had established that the respondent was better equipped (i) to provide for A’s entire and appropriate physical, mental, spiritual, moral and social development, (ii) to develop their relationship in a spirit of love, trust and mutual respect, (iii) to instruct A to respect values of emotional, ethical and national identity, and (iv) to impact his attitude toward social and individual values and full realisation of his potential in life. The Supreme Court made no mention of the Convention.
4. The applicant’s contact with A.V.
41. According to the judgment of 2 December 2008, A has lived in the respondent’s household since the parents’ separation. Up until the last hearing in the revision proceedings, A has met with the applicant a few times for two hours and stayed overnight in the applicant’s house on several occasions: on 17, 24 and between 26 and 31 December 2005, between 5 and 13 January 2006 and on 7 January 2008.
42. It would appear that the judgment of February 2008 has not been enforced as regards the applicant’s access rights. Apparently, A visited the applicant only once in August 2009. On the applicant’s further calls, A replied that he would come to see her during the holidays in 2010. It would appear that the applicant and B do not have any regular contact with A.
5. The criminal charge against the respondent (K.177/05)
43. On 22 December 2005 the Sombor Municipal Court found the respondent guilty of parental child abduction between 18 November 2002 and 22 December 2005, the latter being the date of judgment, and sentenced him to six months in prison, suspended for three years. This judgment became final on 28 March 2006.
6. The constitutional avenue
44. On 6 November 2009 the applicant filed a constitutional appeal with the Constitutional Court of Serbia. Relying on various Articles of the Family Law Act and the Constitution (see paragraphs 47, 48, 62, and 63 below at the “Relevant domestic law”), she sought redress for the non-enforcement of the custody judgment of 2001 and the prior interim custody order (see paragraphs 6 and 4 above), the protracted length of the two sets of custody proceedings and the State’s failure to ensure her contact with A and exercise of her parental rights between 1998 and 2009. She also alleged violations of the rights of her children, but apparently failed to complete constitutional appeals on their behalf.
45. On 14 July 2011 the Constitutional Court rejected (odbio) the applicant’s complaint about the protracted length and the fairness of the second set of custody proceedings as being manifestly ill-founded and dismissed (odbacio) the complaint about the protracted length of the first set of custody proceedings and ensuing enforcement proceedings as out of time. It further summarily dismissed the applicant’s complaint about a violation of her parental rights as “she had failed to submit constitutional reasons to claim a breach of those rights”. As regards A’s rights, the Constitutional Court concluded that not only had the applicant failed to submit a constitutional appeal on his behalf, but she would not have been, in any event, entitled to complain on his behalf as she had lost custody over him.
B. Relevant domestic law and practice
1. The Constitution of the Republic of Serbia (Ustav Republike Srbije; published in the Official Gazette of the Republic of Serbia – OG RS – no. 98/06)
46. Article 18 § 2 provides that the Constitution shall guarantee, and as such, directly implement human and minority rights guaranteed by the generally accepted rules of international law, ratified international treaties and laws. Article 194 § 4 provides that ratified international treaties and generally accepted rules of international law shall be part of the legal system of the Republic of Serbia and that the former should be in compliance with the Constitution.
47. The relevant provisions of the Constitution guaranteeing substantive rights are as follows: Article 22 (right of (judicial) protection of human rights), Article 23 (dignity and free development of individuals), Article 32 (right to a fair trial), Article 64 (rights of the child), Article 65 (parental rights and responsibilities) and Article 66 (special protection of the family, mother, single parent and child).
48. In particular, Article 65 guarantees that parents shall have the right and responsibility to support, provide upbringing and education for their children, in which they shall be equal. All or some particular rights may be revoked or restricted with regard to one or both parents only by the ruling of a court if this is in the best interests of the child and in accordance with the law. Article 66 § 1 provides that families, mothers, single parents and children in the Republic of Serbia shall enjoy special protection in accordance with the law.
2. The Constitutional Court Act (Zakon o Ustavnom sudu; published in OG RS no. 109/07)
49. Article 10 § 1 provides that the Constitutional Court shall have its Rules of Procedure, which shall regulate, in greater detail, the organisation and the functioning of the Constitutional Court, as well as the proceedings before it.
50. Pursuant to Article 36 § 1, the Constitutional Court shall summarily dismiss (declare inadmissible) any submission for initiating of the proceedings before that court: (1) when the court establishes that it is not competent for adjudication; (2) if it was not lodged within the prescribed time-limit; (3) if the appellant failed within time to remove deficiencies which preclude processing of the submission; and (4) when other preconditions, prescribed by law, for conducting a procedure and adjudication do not exist.
51. Article 85 stipulates the compulsory contents of a constitutional appeal. It shall set out, inter alia, the title of the human and minority right and freedom guaranteed by the Constitution which is alleged to be breached together with the relevant article of the Constitution which guarantees those rights, as well as relevant reasons for the appeal and statements of the alleged violation or omission.
3. Rules of Procedure adopted by the Constitutional Court (Poslovnik o radu Ustavnog suda; published in OG RS nos. 24/08, 27/08 and 76/11)
52. These Rules, inter alia, contain the necessary details as regards the processing of appeals lodged with the Constitutional Court.
53. According to Rule 44, inter alia, if a constitutional appeal is incomprehensible, incomplete, lacking necessary data or is inadequate on any other way which precludes conducting of the proceedings, the Constitutional Court shall request the appellant to correct deficiencies within a period of 15 days.
4. Practice directions adopted by the Constitutional Court as regards the examination of and ruling on constitutional appeals, adopted on 30 October 2008 and 2 April 2009 (Stavovi Ustavnog suda u postupku ispitivanja i odlučivanja po ustavnoj žalbi) se odnose na postupak prethodnog ispitivanje ustavne žalbe, usvojeni 30 oktobra 2008. i 2. aprila 2009. godine)
54. The Constitutional Court adopted its practice directions on various procedural matters concerning the examination of and ruling on constitutional appeals.
55. As regards the preliminary examination and the compulsory contents of an appeal, the Constitutional Court stated that should any mandatory content of an appeal be missing the appellant should be informed about it and invited to correct deficiencies. The appellant should be also warned that his/her appeal shall be dismissed if any element is missing to the extent that precludes the court from processing such appeal.
56. The Constitutional Court further stated that it should "be bound" by the request contained in the constitutional appeal when it comes to the examination of whether there has been a breach of a right or freedom guaranteed by the Constitution. It may consider the appeal only within these limits.
5. Enforcement Procedure Act of 2000 (Zakon o izvršnom postupku; published in OG FRY nos. 28/00, 73/00 and 71/01)
57. Article 4 § 1 provided that all enforcement proceedings were to be conducted urgently.
58. Article 209 provided, while placing special emphasis on the best interests of the child, that there should be an initial period of three days for voluntary compliance with a child custody order. Beyond that, however, fines should be imposed and, ultimately, if necessary, the child taken forcibly, in co-operation with the Social Care Centre.
59. The Enforcement Proceedings Act 2000, which was in force at the commencement of the enforcement proceedings in the present case, was repealed by the Enforcement Proceedings Act 2004 (Zakon o izvršnom postupku; published in the Official Gazette of the Republic of Serbia - OG RS - no. 125/04), which came into force on 23 February 2005. In accordance with Article 304 of the 2004 Act, all enforcement proceedings instituted prior to 23 February 2005 were to be concluded pursuant to the 2000 Act.
6. Marriage and Family Relations Act (Zakon o braku i porodičnim odnosima; published in the Official Gazette of the Socialist Republic of Serbia - OG SRS - nos. 22/80, 11/88 and OG RS nos. 22/93, 25/93, 35/94, 46/95 and 29/01)
60. Article 391 provided, inter alia, that all child custody proceedings had to be conducted urgently.
7. Family Act (Porodični zakon; published in OG RS no. 18/05)
61. This Act repealed the Marriage and Family Relations Act referred to above. This Act entered into force on 1 July 2005, except Article 203 § 2 and 3 which entered into force on 1 July 2006.
62. Article 2 § 1 provides that everyone has the right to respect for family life.
63. Article 61 guarantees the right of the child to maintain a personal relationship with the parent he or she does not live with, unless there are reasons to deprive that parent partially or fully of parental rights or in case of domestic violence.
64. 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.
65. Under Article 203 § 2, judges dealing with family matters must be persons with a specialised knowledge of children’s rights and issues. Lay judges referred to in paragraph 1 of this Article are to be selected from the ranks of experts with experience in working with children and youth.
66. Under Article 204 all family-related disputes involving children must be resolved urgently. The first hearing must be scheduled within 15 days of the date when the claim is filed. First instance courts should conclude the proceedings, in principle, following no more than two hearings, and second instance courts must decide on appeal within a period of 30 days.
COMPLAINTS
The applicant relies on Articles 6, 8, 13 and 17 of the Convention.
She complains about the protracted length and fairness of the overall custody determination.
She further complains that the competent State’s authorities have failed ensure her substantive contact with her son and exercise of her custody/parental rights since 1998.
Lastly, the applicant challenges the courts’ finding that the transfer of her custody rights to the respondent was in the best interest of A. She states that the respondent was not able and willing to allow the mother’s involvement in A’s upbringing and that not all of the experts had agreed that the child custody should be inevitably altered without possibility for making any contact between her and her son. The applicant also argues that the courts had tolerated the respondent’s abuse of parental rights until the factual situation was sufficiently altered by the passage of time so as to allow for the reversal of child custody. In her opinion, the competent experts and courts failed to establish and respond to her persistent question as to where the best interests of the child indeed lay, being pressed to terminate already prolonged custody proceedings.
ITMarkFactsComplaintsEnd
QUESTIONS TO THE PARTIES
1. Has the applicant properly exhausted domestic remedies, in particular, the constitutional appeal? In addition, the Government are requested to clarify and document whether the “constitutional reasons to claim a breach of the Constitutional’s rights” are considered to be mandatory elements of a constitutional appeal or “deficiencies” which would require correspondence with the applicant (reference is made to the paragraphs 51, 53 and 55 of the attached draft)?
2. Has there been a violation of Article 6 § 1 of the Convention? Having regard to the reasons given by the domestic courts in the second set of custody proceedings, did the applicant have a fair hearing in the determination of her civil rights and obligations, in accordance with Article 6 § 1 of the Convention? Further, was the length of the second set of custody proceedings in the present case excessive and, as such, in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention (see, for example, Laino v. Italy [GC], no. 33158/96, ECHR 1999‑I; Nuutinen v. Finland, no. 32842/96, 27 June 2000, Reports 2000-VIII; Wildgruber v. Germany, nos. 42402/05 and 42423/05, 21 January 2010; V.A.M. v. Serbia, no. 39177/05, §§ 57-8 104-111; and Veljkov v. Serbia, no. 23087/07, §§ 85-91, 19 April 2011)?
3. Has there been an interference with the applicant’s right to respect for her family life, within the meaning of Article 8 § 1 of the Convention? Do the decisions of the domestic courts in the second set of custody proceedings disclose a violation of Article 8 of the Convention? In particular, were the reasons adduced by the domestic courts relevant and sufficient (see, for example, Olsson v. Sweden (no. 1), 24 March 1988, § 68, Series A no. 130; Wildgruber v. Germany (dec.), nos. 42402/05 and 42423/05, 29 January 2008; Hoppe v. Germany, no. 28422/95, §§ 48-51, 5 December 2002, and Hokkanen v. Finland, 23 September 1994, §§ 55 and 64, Series A no. 299‑A)?
4. Were the relevant proceedings fair and accompanied by the requisite procedural safeguards to such an extent as to ensure respect for the applicant’s family life in accordance with Article 8 of the Convention (see W. v. the United Kingdom judgment of 8 July 1987, Series A no. 121, p. 29, § 64; K.A. v. Finland, no. 27751/95, § 104, 14 January 2003; Amanalachioai v. Romania, no. 4023/04, §§ 91-103, 26 May 2009; and C. v. Finland, no. 18249/02, § 58, 9 May 2006? In particular, did the applicant have adequate access to her son A and what steps have been taken in this respect throughout the determination of custody (see Zawadka v. Poland, no. 48542/99, § 53, 23 June 2005; Kosmopoulou v. Greece, no. 60457/00, § 44, 5 February 2004, and Görgülü v. Germany, no. 74969/01, § 46, 26 February 2004)?
5. Lastly, the Government are requested to submit copies of all documents contained in the files of all authorities, in particular of the competent courts, the Sombor Social Care Centres, the Institute for children and youth’s health protection (Institut za zdravstvenu zaštitu dece i omladine Vojvodine) and other experts engaged during the second set of custody proceedings.
Full & Egal Universal Law Academy