FIRST SECTION
DECISION
Application no. 58767/15
Robert KRAMER
against Croatia
The European Court of Human Rights (First Section), sitting on 18 June 2019 as a Committee composed of:
Krzysztof Wojtyczek, President,
Armen Harutyunyan,
Pauliine Koskelo, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 21 November 2015,
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
1. The applicant, Mr Robert Kramer, is a Croatian national, who was born in 1973 and lives in Zagreb. He was represented before the Court by Mr S. Poldan, a lawyer practising in Rijeka.
2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 29 April 2006 the applicant married I.P.K., who gave birth to their daughter, E., on 29 June 2006. The family lived together in Zagreb until September 2007, when I.P.K. moved with their daughter to her parents’ house in Ivanec, a town some 80 kilometres away from Zagreb. The applicant could in principle see E. whenever he wanted, provided that the mother was notified beforehand.Divorce proceedings
5. On 20 September 2007 I.P.K. instituted divorce proceedings in the Zagreb Municipal Civil Court (Općinski građanski sud u Zagrebu) seeking custody of, and maintenance for, the child. The applicant did not oppose the divorce but requested that he be granted custody of E.
6. Following compulsory mediation, in January 2008 the court requested the local social welfare centre (“the centre”) to prepare a report, including a proposal regarding to whom custody of E. would be awarded.
7. On 25 February 2008 I.P.K. lodged a criminal complaint with the police against the applicant for kidnapping E. four days earlier and for refusing to return her to her mother. Some days later, she also urged the court to issue a temporary interim order regulating the applicant’s contact rights in respect of his daughter.
8. On 8 April 2008 the centre issued an opinion recommending that the mother be granted custody of E. because she had been providing her with adequate care since her birth and she had spent more time with the child than had the applicant. At a hearing held on the same day, the court ordered a psychological and psychiatric expert opinion on custody and contact arrangements from the Zagreb Children’s Psychiatric Hospital.
9. On 19 May 2008 the Zagreb Municipal Court issued an interim custody and access order granting custody to the mother and contact rights to the father. That decision was quashed at second instance on 2 September 2008.
10. Meanwhile, on 10 June 2008 the applicant returned E. to her mother.
11. On 30 June 2008 the centre ordered that the parental care provided to E. by the applicant be supervised.
12. On 19 September 2008 the Children’s Psychiatric Hospital delivered an expert opinion recommending that E. live with her mother and that the applicant be accorded contact rights.
13. At the next hearing held on 5 February 2009 the applicant requested that the Director of the Children’s Psychiatric Hospital (who had signed the expert opinion) be recused from the proceedings.
14. On 13 February 2009 the applicant requested the withdrawal of the judge of the Zagreb Municipal Court assigned to his case, claiming that she was partial. His request was refused as ill-founded.
15. On 24 February 2009, following one of their scheduled meetings on the premises of the centre, the applicant took E. home to live with him without the mother’s consent.
16. On 7 July 2009 the applicant again requested the withdrawal of the trial judge; his request was refused by the president of the Zagreb Municipal Civil Court.
17. On 3 November 2009 the applicant requested the withdrawal of both the trial judge and the President of the Zagreb Municipal Civil Court. His request for the withdrawal of the court president was refused by the Zagreb County Court (Županijski sud u Zagrebu) on 2 March 2010. His request for the withdrawal of the trial judge was refused on 3 May 2010.
18. Meanwhile, on 2 December 2009 the court allowed a request lodged by the applicant for the recusal of the expert who had signed the expert opinion of 19 September 2008 (see paragraph 12 above), because at the time she had not been registered as a certified court expert.
19. On 4 May 2010 the court issued another temporary custody and access order pending the final conclusion of the divorce proceedings. It again awarded custody to the mother and visiting rights to the father. An appeal lodged by the applicant against that decision was dismissed.
20. Since at that time E. was living with the applicant and nobody knew where they were, the authorities were unable to enforce the above‑mentioned temporary custody order. I.P.K. claimed that the applicant had unlawfully taken E. to Germany during that period, and minor-offence proceedings were instituted in this connection (see paragraph 37 below). The applicant eventually complied with the court order and returned E. to her mother on 18 August 2010.
21. Meanwhile, in June 2010 the court assigned another judge to the applicant’s case and on 5 November 2010 the court proceedings resumed. At the hearing held on the same day, the centre informed the court that it had instituted proceedings for divesting the applicant of his parental authority, a motion which was eventually withdrawn. The centre was asked for a fresh opinion on custody and contact arrangements concerning the child.
22. On 30 September 2011 the relevant social welfare centre issued its opinion, which recommended that the child live with the mother. In so far as relevant, it stated as follows:
“Throughout the period during which the parents have been observed in fulfilling their parental roles and their parental responsibility has been assessed, it can be concluded that the mother has acted more in line with the actual needs and interests of the child, whereas the father remains adamant in proving that he is the better parent, ignoring the advice of professionals.
It is telling that the father also ignored the court decision of 4 May 2010, only returning E. to her mother on 18 August 2011, so the mother did not have any information concerning the child for a period of about three months ... because the father and the child had been uncontactable.
The father saw nothing wrong with such behaviour, even though it undoubtedly amounted to emotional abuse of the child and of the mother.
Furthermore, we see the mother as the parent who is more in touch with reality, who accepts the child for who she is [and] who encourages the child’s spontaneity, whereas the father, on the other hand, observes and interprets the child’s development and education “by the book”.
It is telling that two temporary court orders regarding parental care involved three different social welfare centres, all of which were of the view that it was in the child’s best interest to live with the mother ...
In the time period [concerned] contact was made with E. a number of times at her home address, as well as at the centre’s premises. ... When asked about her mother she verbalises more than when asked about her father. Furthermore, when asked questions about the father, she often avoids providing an answer. She ignores the question or gives an answer such as ‘I’ll tell you when I finish [playing with] the cubes ...’
Verbalisation about the mother is accompanied by wider and more differentiated emotional expressions that about the father. Generally, she leaves the impression of a healthy, happy and well-cared-for child.
Conclusions and opinion
... E. is emotionally attached to both parents and both of them show [an awareness of the importance of] upbringing, development and education. We assessed the mother as a competent parent, guided by the actual needs and interests of the child, who is able to provide the safe and stable environment crucial for the child’s healthy growth and development; hence it is in E.’s interest to continue living with her.
Despite the passage of time and recommendations by professionals, the father remains determined to prove that he is the more competent parent and generally to prove the correctness of his personal attitudes, which implies among other things that he has still not separated his own needs from those of the child ...”
23. The applicant challenged the centre’s opinion, asking the court to be allowed to lodge a criminal complaint against it. The centre filed a detailed response to the applicant’s allegations.
24. At the hearing held on 24 November 2011 the court accepted the applicant’s proposal for the ordering of another expert psychiatric and psychological expert evaluation on custody and contact with the child and appointed the Children’s Psychiatric Hospital for that purpose. The applicant lodged a number of requests for the recusal of the said institution because the director of that institution had remained unchanged since the court’s previous decision on her recusal (see paragraph 18 above). On 27 December 2011 the Children’s Psychiatric Hospital withdrew from the case and returned the case file to the court.
25. On 30 January 2012 the preparing of the psychological and psychiatric expert opinion was entrusted to the Zagreb University Hospital Centre. The applicant lodged a request for the recusal of that expert, but his request was refused.
26. On 22 February 2012 the court appointed to E. a special guardian for the proceedings, who was tasked with protecting her interests. The applicant unsuccessfully appealed against that decision. In May 2012 the special guardian informed the court that she could no longer represent the child owing to personal reasons, and she was relieved of that duty in September 2012.
27. Meanwhile, on 16 May 2012, following the applicant’s refusal to advance the costs of the expert opinion, I.P.K. advanced those costs and urged that the expert opinion be obtained. She also urged the court to deliver a partial judgment granting her a divorce from the applicant.
28. On 28 May 2012 the court again entrusted the expert evaluation to the Zagreb University Hospital Centre. The applicant lodged another request for the recusal of that expert, which was refused. On 3 October 2012 the said institution requested to be excluded from the expert evaluation owing to unavailability of competent experts.
29. On 18 February 2013 the court entrusted Dubrava Hospital with the psychological and psychiatric expert evaluation. The applicant insisted that all interviews with the child during the said evaluation be filmed in order to avoid having to repeatedly question, and thereby traumatise, the child. He also requested that E. be appointed another special guardian. On 16 April 2013 Dubrava Hospital informed the court that it did not perform such expert evaluations as an institution, but that such procedures were conducted by individual experts or teams of psychiatrists and/or psychologists.
30. In a submission of 20 May 2013, I.P.K. invited the court to dispense with the expert evaluation and to award custody of E. on the basis of other available information in the case file, stressing that E. would be starting school that September and that it was crucial to decide before that on the matter of who should be awarded custody of her.
31. On 12 June 2013 the court held another hearing, at which the applicant insisted that a fresh expert evaluation be undertaken and proposed further witnesses (his mother and E.’s kindergarten teachers) concerning the degree of E.’s attachment to him and to living in Zagreb. The applicant also proposed that the child be heard in court and that the parties again be heard. The court dismissed all of his proposals. The applicant also stated that he had never received I.P.K.’s submission of 20 May 2013, or Dubrava Hospital’s letter of 16 April 2013 (see paragraphs 29 and 30 above). He was then given those submissions at the hearing and commented on them. The court dispensed with obtaining an expert evaluation and concluded the main hearing.
32. No representative of the relevant social welfare centre could attend the above hearing, but it informed the court that, as regards custody of E., it maintained its proposal of 30 September 2011 (see paragraph 22 above).
33. On 22 July 2013 the Zagreb Municipal Civil Court gave its judgment, which dissolved the applicant’s marriage and awarded custody of E. to her mother and contact rights to the applicant. The relevant parts of that judgment read as follows:
“The court entirely accepted the part of the recommendation of the expert team of the [relevant] social welfare centre concerning custody of E. following the divorce, because that opinion is explained in detail [and is] objective, professional and stems from persons who have been attentively following the development of [relationships within] the Kramer family. The court considers that it is in [E.’s] interest to continue living with her mother, since the child has lived with that parent since 18 August 2010, that parent is acting more in line with the actual needs and interests of the child, and is able to provide a safe and stable environment for the child. Finally, she is the parent in respect of whom no negative characteristics influencing her parental competencies have been established. It is to be noted that the father has the right, duty and responsibility to participate in the education of the child on an equal footing with the mother, and that the mother has to approve and encourage such contact. Furthermore, it has been established during the proceedings that each parent offers in their own way support for the healthy upbringing of the child, and in order to realise such intentions, the quality of parental communication is important. [It was] in the light of the circumstances established during these proceedings – and in particular taking into account the interests of the child, on the basis of [the relevant national legislation] and on Article 12 of the Convention on the Rights of the Child and Article 6 of the European Convention on the Exercise of Children’s rights – that the court decided [on the awarding of custody in the present case].
Furthermore, bearing in mind the need and the importance of mutual contact between E. and her father, the court decided that such meetings and visits should take place on Tuesdays and Thursdays between 4 p.m. and 7 p.m. in weeks when the child does not spend the weekend with the father, Wednesdays between 4 p.m. and 7 p.m. in weeks where the child does spend the weekend with the father, every other weekend ... and [every other] public holiday ..., ten days during the winter holidays and thirty days during the summer holidays; ... [T]he mother shall bring E. [to a certain shop front] in Ivanec, ... where the father will pick her up and return her at the determined time. In reaching such a decision, it was in particular taken into account that E. will be starting primary school in the autumn of 2013, which will result in daily school obligations and less free time for the child. It is necessary to harmonise those obligations with the time that she will be spending in meetings with her father, while leaving them sufficient space to continue building their emotional closeness. It is to be noted here that the court did not accept the proposal by the [relevant] centre that meetings with the father be organised three weekends in a month and one day during the week because it is crucial for E.’s proper development [for her] to clearly be aware with which parent and where she lives and in which surroundings all her everyday activities take place, but it is also important for her to spend her free time over the weekends equally with both parents, which would not have been possible in the manner proposed by [the centre]. ... Here again it is important to stress that, despite their separate lives and significant physical distance [from each other], the parents have to equally, together and in mutual agreement care for E ..., and it is this court’s view that precisely through this manner of contact between the father and E. will they succeed [in that] ...
... The court furthermore declined to take evidence in the form of a combined psychological and psychiatric expert opinion, [contrary to its decision] of 30 January 2012 ... It also refused [the applicant’s] request [lodged at the hearing of 12 June 2013] that a psychological and psychiatric expert opinion be obtained because it was deemed that that proposal had been aimed exclusively at protracting the proceedings, particularly bearing in mind the fact that the court had to annul its previous decision ... to obtain an expert opinion precisely owing to [the applicant’s] failure to advance the costs within the specified time-limit ...
... The court dismissed [the applicant’s] proposal that the kindergarten teachers ..., the child, [and another] witness be heard and that the parties [be heard again]. In point of fact, the facts of the present case were sufficiently established as to enable the delivery of a first-instance judgment and for that reason the court considered [the applicant’s] proposal – that the kindergarten teachers [and another] witness be heard and that additional statements be taken from the parties (who had been heard several times during the proceedings) – unnecessary and aimed exclusively at protracting the proceedings. The court also dismissed the request for E. to be heard [in court] because the professionals from the [relevant] centre had already had a number of instances of direct contact with her both at her home address and at the centre premises. The obligations under Articles 3 and 6 of the European Convention on the Exercise of Children’s Rights have thereby been fully met, since the court was satisfied that the child had received all necessary information and expressed her opinion, which has been duly taken into account ...”
34. After an appeal lodged by the applicant, on 16 January 2014 the Bjelovar County Court (Županijski sud u Bjelovaru) upheld the first‑instance judgment. In so far as relevant, that judgment reads as follows:
“... Deciding on the basis of section 294 of the Family Act with which parent the child will live after the divorce of her parents, the first-instance court correctly and fully established the [relevant] facts and then correctly applied the relevant domestic law by delivering the decision that the child was to live with her mother ...
The first-instance court based its decision on the opinion and recommendation of the [relevant] social welfare centre of 30 September 2011, from which it can be seen that ... over the period of the assessment of the behaviour of the parents and their parental roles and their parental responsibilities, in the opinion of [the centre], the mother, I.P.K., acts more in line with the real needs and interests of the child, whereas [the applicant] persists in proving that he is the more competent parent.
In its opinion, [the centre] states that there were a number of instances of direct contact with [E.], which she established and maintained without difficulties and adequately in view of her age; at the [centre’s] premises she had no difficulties separating from [the person accompanying her], she cooperated adequately and accepted the proposed contents, and she verbalised more extensively when asked about her mother than about her father.
According to the conclusions of [the centre’s] team of experts, in the given circumstances [E.] is adequately taken care of as regards her day-to-day needs, as well as all others, and she is exposed to educational influences and content. E. is emotionally attached to both parents and they both show interest in her upbringing and education, but it is the [centre’s] expert team’s opinion that the girl’s relationship with her mother is closer and more emotional. The expert team assessed the mother, I.P.K., as a competent parent who acted in line with the actual needs and interests of the child [and was] capable of ensuring the child a safe and stable environment, which are important conditions for healthy growth and development, and it is therefore in the interests of E. for her to live with her mother.
By providing its expert opinion, [the centre] fully assessed the actual needs of the child and the ability of the mother, I.P.K., to fulfil those needs in such a way that the child is exposed to adequate educational influences and content and to [provide] an environment that will allow the child healthy growth and development, guided by her actual needs and interests; the first-instance court therefore justifiably accepted the recommendation of the [centre’s] expert team, finding it detailed, objective and professional and produced by persons who had been following the development of relations with the Kramer family for a considerable number of years – i.e. [encompassing] the beginning of these proceedings on 20 September 2007 – during which time they have conducted intensive supervision of the parental responsibilities of both parents, so there were no reasons to doubt the accuracy of their opinion.
...
For the above reasons, [the applicant’s] challenge before the first-instance court concerning the custody of the child following the parents’ divorce is ill-founded.
It should furthermore be stressed that over the years of the duration of the proceedings [the centre] had a number of instances of direct contact with [E.], from which it was able to conclude how the child behaved and what sort of impression she gave through games and conversation with the centre’s employees when asked about her mother and father, and it is precisely those direct contacts with the child that have allowed her to express her opinion, in line with Articles 3 and 6 of the Convention on the Rights of the Child, which provide that a child should give its opinion, which should be determined in line with the child’s age and by various methods such as conversation, but also by drawing or games, and not solely the questioning of the child in court. The fact that the child provided her opinion before an administrative authority does not mean that the mentioned Convention provision was applied unlawfully, because the child’s right [to be heard] can also be realised before other public authorities that participate in the proceedings, not only courts...”
35. On 29 April 2015 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed a subsequent constitutional complaint lodged by the applicant concerning his right to a fair hearing and to respect for family life.Other proceedings
36. On 24 December 2010 the relevant social welfare centre applied a child-protection measure of supervision of the exercise of parental authority (nadzor nad izvršenjem roditeljske skrbi) of the applicant and I.P.K. in order for a social worker to oversee the handover of the child between the mother and the father, as determined by the court’s second temporary custody order (see paragraph 19 above).
37. On 17 March 2011 the Zagreb Minor Offences Court (Prekršajni sud u Zagrebu) found the applicant guilty of domestic violence by causing I.P.K. and their daughter psychological harm by not allowing them to communicate between 27 May and 18 August 2010 (see paragraph 20 above). In its judgment, the court expressly referred to Article 9 of the Convention on the Rights of the Child, which provides that a child should have contact with both its parents. The applicant was ordered to undergo psychosocial treatment, which, according to the report of the relevant institution, he completed “with partial success”.
38. On 30 December 2015 the Varaždin Municipal Court (Općinski sud u Varaždinu) dismissed a proposal by the applicant for an increase in his contact rights and meetings with E. Instead, on the basis of the opinion of the relevant social welfare centre and information submitted by E.’s school, the court reduced the applicant’s contact rights to one hour per week. An appeal lodged by the applicant against this decision was dismissed.
39. On 11 January 2016 the relevant State Attorney’s Office indicted the applicant for emotional and physical abuse of E. The criminal proceedings appear to be ongoing.Relevant domestic law
40. The relevant provisions of the Constitutional Act on the Constitutional Court of the Republic of Croatia and of the 2005 Courts Act in force at the material time have been cited in Vrtar v. Croatia (no. 39380/13, §§ 51-55, 7 January 2016).
41. The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/91, 91/92, 58/93, 112/99, 88/01, 117/03, 88/05, 02/07, 84/08, 123/08, 123/08, 57/11, 148/11 and 25/13), as in force at the material time, provided as follows:
Section 220 (2)
“The court shall decide which of the proposed evidence it will take in order to establish the decisive facts.”
42. The relevant provisions of the Family Act of 2003 (Obiteljski zakon, Official Gazette no. 163/03, with subsequent amendments – hereafter “the Family Act”), which was in force between 22 July 2003 and 1 September 2014, read as follows:
Section 100 (1)
“If the parents do not live together, the court will decide with which parent the child shall live and determine the manner and time of the other parent’s meetings and contact rights in respect of the child.”
3. Measures for the protection of the rights and welfare of the child
Section 109
“The social welfare centre shall warn the parents of mistakes and shortcomings in the care and upbringing of their child and assist them to correct those mistakes and shortcomings. It may also refer them for counselling or to a parenting school.”
Section 110
“(1) The social welfare centre shall order the supervision of the exercise of parental authority when errors and omissions are various and frequent or when the parents need special assistance in bringing up their child.
...
(4) The supervision shall be ordered for a minimum period of six months.
...”
COMPLAINTS
43. The applicant complained under Article 6 § 1 of the Convention about the length of the proceedings before the ordinary courts.
44. The applicant also complained under Article 8 of the Convention that the national courts had not established all the relevant facts in the proceedings concerning the custody of his daughter and about the contact rights with his daughter as determined by the final judgment given in the custody proceedings.
THE LAWArticle 6 of the Convention
45. The applicant relied on Article 6 § 1 of the Convention, which, 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 ...”
46. The Government submitted that the applicant had failed to exhaust the effective domestic remedies available to him under the 2005 Courts Act and the 2013 Courts Act throughout the course of the proceedings.
47. The applicant disagreed.
48. The Court reiterates that under Article 35 § 1 it may only deal with a matter after all domestic remedies have been exhausted. Applicants must have provided the domestic courts with the opportunity, in principle intended to be afforded to Contracting States, of preventing or putting right the violations alleged against them. That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in the domestic system in respect of the alleged breach. The only remedies that Article 35 § 1 requires to be exhausted are those that relate to the breach alleged and are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness: it falls to the respondent State to establish that these conditions are satisfied (see, among many other authorities, McFarlane v. Ireland [GC], no. 31333/06, § 107, 10 September 2010).
49. The Court observes that the proceedings before the ordinary courts – which concerned the applicant’s divorce from I.P.K., as well as custody, contacts and maintenance arrangements in respect of his daughter – started on 20 September 2007 and ended with a final court judgment on 16 January 2014. They therefore lasted for about six years and four months at two levels of jurisdiction.
50. As regards the period prior to 13 March 2013, the Court observes that the applicant had at his disposal an effective domestic remedy, namely a request for the protection of the right to a hearing within a reasonable time under the 2005 Courts Act and, as the case may be, a constitutional complaint under section 63 of the Constitutional Court Act. The Court has already held that this was the remedy which needed to be exhausted before lodging a complaint concerning the length of the proceedings with the Court (see Pavić v. Croatia, no. 21846/08, § 36, 28 January 2010). The Court observes in this connection that the said remedy was both preventive and compensatory, which is a requirement in cases such as the present one, in which the length of the proceedings had a clear impact on the applicant’s family life (see Kuppinger v. Germany, no. 6219811, 15 January 2015, § 137).
51. However, the applicant failed to lodge such a request with the relevant higher court. Accordingly, this part of the complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
52. As regards the subsequent period of some ten months before the delivery of the second-instance judgment on 16 January 2014, the Court observes that two court instances gave their decisions and that the said period can therefore not be deemed excessive.
53. Accordingly, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.Article 8 of the Convention
54. The applicant complained under Article 8 of the Convention that the national courts had not established all the relevant facts in the proceedings concerning the custody of his daughter. He also complained about the contact rights with his daughter as determined by the final judgment given in the custody proceedings.
55. Article 8 of the Convention, insofar as relevant, reads as follows:
“1. Everyone has the right to respect for his ... family life...
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 parties’ arguments
(a) The Government
56. The Government argued that during exhaustive and detailed proceedings, the domestic authorities had established all the relevant circumstances in order to reach a decision in the best interests of the child. Moreover, the applicant had enjoyed all procedural rights during the proceedings, of which he had made extensive use. In fact, the applicant had contributed significantly to the overall length of the proceedings, his conduct having bordered on abuse of his procedural rights. In addition to the large number of submissions and proposals made by the applicant, he had also sought the withdrawal on grounds of bias of two social welfare centres, two judges, two court administrators, two expert witnesses and the president of the relevant municipal court. His conduct in the case had therefore been “far from constructive”.
57. The applicant had been heard in person a number of times and he had continuously, even weekly, informed the court in writing of his views on the case, submitting numerous pieces of evidence. The domestic courts had not been bound to accept all proposals made by the parties in respect of evidence that should be examined, but he had been granted access to, and the possibility to comment on, all submissions contained in the case file. As regards the authorities’ alleged failure to organise a psychological examination, the Government observed that this had been due to the applicant’s objections to several potential expert witnesses, as well as his refusal to advance the costs of such an examination. In any event, such an assessment was not a requirement in all such cases under the domestic law or under the Convention, as the relevant court had had a sufficient amount other evidence to examine in order to reach its final conclusion in the best interests of the child.
58. As regards the child expressing her views, the Government considered that the applicant could not complain about the rights of the child in the proceedings before the Court, because his and the child’s respective interests might have been mutually opposed. Moreover, the child – who had been almost seven years old when the court had reached its decision – had expressed her views before the relevant social welfare centre in a manner reflecting her age, using various methods such as drawing and play. It had therefore not been indispensable to hear her in court.
59. Finally, as regards contact rights, the Government observed that during the proceedings the applicant maintained that his work schedule was flexible and that in reality meetings between him and E. were taking place as scheduled. It was also always open to him to request the court to change the contact schedule, which he eventually did (see paragraph 38 above).
(b) The applicant
60. The applicant maintained that the proceedings concerning the custody of his daughter had been unfair. The domestic courts had declined to examine evidence submitted by him, in particular dismissing his proposal that an expert psychiatric assessment be undertaken and additional witnesses be heard. Instead, the domestic courts had reached their final decision on the basis of an outdated report by the welfare centre, which had been issued two years before.
61. The applicant furthermore submitted that the domestic authorities had failed to hear the child in order to establish which parent she wished to live with, and that they had failed to appoint her another special representative after the original one had resigned. They had also failed to take into account the applicant’s economic circumstances, which indicated that he was able to provide a very comfortable life for him and E., thus demonstrating that they had never even considered awarding him, as a man, custody of his child. He also stated that he had not been given the opportunity to reply to certain submissions made during the first-instance proceedings.
62. Finally, the applicant complained that, due to the distance between his place of residence and that of his child, he was forced to have superficial contacts with her in coffee shops and shopping malls and unable to spend more quality-time with his daughter.The Court’s assessment
(a) General principles
63. The Court notes that where the existence of a family tie has been established, the State must in principle act in a manner enabling that tie to be maintained. The mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life, and domestic measures hindering such enjoyment amount to an interference with a right protected by Article 8 of the Convention (see, among other authorities, Khusnutdinov and X v. Russia, no. 76598/12, § 76, 18 December 2018, and K. and T. v. Finland [GC], no. 25702/94, § 151, ECHR 2001‑VII).
64. In determining whether the refusal of custody or access was justified under Article 8 § 2 of the Convention, the Court has to consider whether, in the light of the case as a whole, the reasons adduced to justify this measure were relevant and sufficient. Undoubtedly, consideration of what lies in the best interests of the child is of crucial importance in every case of this kind. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. It follows from these considerations that the Court’s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding child custody and access issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their power of appreciation (see Sahin v. Germany [GC], no. 30943/96, § 64, ECHR 2003‑VIII; Sommerfeld v. Germany [GC], no. 31871/96, § 62, ECHR 2003‑VIII (extracts); C. v. Finland, no. 18249/02, § 52, 9 May 2006; and Z.J. v. Lithuania, no. 60092/12, § 96, 29 April 2014). To that end, the Court must ascertain whether the domestic courts conducted an in-depth examination of the entire family situation, together with a whole series of factors – in particular those of a factual, emotional, psychological, material and medical nature – and made a balanced and reasonable assessment of the respective interests of each person, exercising a constant concern for determining what the best solution would be for the child (see Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 139, ECHR 2010, and Antonyuk v. Russia, no. 47721/10, § 134, 1 August 2013).
65. The margin of appreciation to be afforded to the relevant national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake. Thus, the Court has recognised that the authorities enjoy a wide margin of appreciation, in particular when deciding on custody. However, stricter scrutiny is called for as regards any further limitations, such as restrictions placed by those authorities on parental contact rights, and as regards any legal safeguards designed to secure the effective protection of the right of parents and children to respect for their family life. Such further limitations give rise to a danger that the family relations between a young child and one or both parents could be effectively curtailed (see Sahin, cited above, § 65, and Sommerfeld, cited above, § 63).
66. Article 8 requires that the domestic authorities strike a fair balance between the interests of the child and those of the parents, and that, in the balancing process, particular importance be attached to the best interests of the child, which, depending on their nature and seriousness, may override those of the parents. In particular, a parent cannot be entitled under Article 8 to have such measures taken as would harm the child’s health and development (see Sahin, cited above, § 66, and Sommerfeld, cited above, § 64).
67. While Article 8 of the Convention contains no explicit procedural requirements, the decision-making process involved in undertaking measures of interference must be fair and such as to ensure due respect for the interests safeguarded by Article 8. The Court must therefore determine whether, having regard to the circumstances of the case and notably the importance of the decisions to be taken, an applicant has been involved in the decision-making process to a degree sufficient to provide him with the requisite protection of his interests (see Z.J., cited above, § 100, with further references).
(b) Application to the present case
68. The Court considers that the decision to award custody of E. to her mother amounted to an interference with the applicant’s right to respect for his family life (see Antonyuk, cited above, § 119, and G.B. v. Lithuania, no. 36137/13, § 87, 19 January 2016). It has not been disputed between the parties that the interference had a basis in domestic law, and the Court considers that it pursued the legitimate aim of protecting the rights of the child. It remains to be examined whether the interference was “necessary in a democratic society”.
69. Before turning to an analysis of the reasons advanced by the domestic courts in the present case, it is important to note that the scope of the custody order was limited to determining where E. would live; it did not affect her legal relationship with the applicant, nor did it take away the applicant’s parental authority. It is also significant that in his application to the Court the applicant complained solely about the custody and contacts decision given by the domestic courts in the divorce proceedings (see paragraphs 33 and 34 above). In his submissions, he expressly requested the Court not to take into consideration the subsequent developments and other proceedings between the same parties referred to by the Government (see paragraphs 36-39 above).
70. The Court accepts that, in reaching decisions on child-care measures, national authorities and courts are often faced with a task that is extremely difficult. It does not lose sight of the fact that the national authorities had no other choice but to render a custody order in favour of one of the two divorced parents, as the domestic law does not provide for the possibility to render a shared custody order (see paragraph 42 above; also see, mutatis mutandis, Antonyuk, cited above, § 121).
71. The Court observes that during the custody proceedings E. mainly lived with her mother, except for two periods when the applicant had taken her to live with him. It furthermore observes that on one of those occasions the applicant unlawfully refused to return E. to her mother, despite the fact that the relevant court had meanwhile issued a temporary order awarding custody to the mother (see paragraph 19 above). For such conduct the applicant had subsequently been convicted in minor-offences proceedings (see paragraph 37 above).
72. Having examined the domestic court decisions complained of (see paragraphs 33 and 34 above), the Court finds no reason to doubt that they were based on the best interests of the child. The domestic courts established that E. had lived with her mother since 18 August 2010, that the mother was able to provide her with a safe and stable environment and that she was acting more in accordance with E.’s actual needs and interests than was the father. The courts particularly stressed that no negative characteristics influencing the mother’s parental competencies had been established. There is nothing to indicate that the findings reached by the domestic courts, which had the benefit of direct contact with all the persons concerned, were unreasonable and thus fell outside their wide margin of appreciation. Given that the national authorities are in principle better placed than an international judge to evaluate the evidence before them, it is not the Court’s task to take their place in establishing and assessing the facts and deciding what is in the best interests of the child in the present case (see Leonov v. Russia, no. 77180/11, § 72, 10 April 2018).
73. The Court furthermore notes that the decision at issue was reached following adversarial proceedings, throughout which the applicant, represented by counsel, had the opportunity to present – both in writing and orally – all arguments in support of his claim. Indeed, he made ample submissions to the domestic courts, as evidenced by the voluminous documentation submitted to the Court. Contrary to what was claimed by the applicant, the Court notes that he was given access to, and the possibility to comment on, all relevant documents examined by the courts (see paragraph 31 above).
74. In so far as the applicant complained about the fact that the domestic courts had dismissed his proposal – made during the last hearing on 12 June 2013 – for further witnesses to be heard, the Court observes that under Croatian law, domestic courts are not bound to consider all evidence proposed by parties (see paragraph 41 above). The relevant court gave valid reasons for dismissing the applicant’s proposals, finding that they were irrelevant and simply aimed at further protracting the proceedings. Indeed, the applicant had the opportunity to ask for those witnesses to be heard at an earlier stage of the first-instance proceedings, which had at that point already lasted nearly six years. Furthermore, he did not explain, before any domestic court or this Court, why he proposed only at such a late stage in the proceedings that further evidence be presented concerning the child’s alleged attachment to him and to life in Zagreb.
75. As to the applicant’s complaint that the first-instance court had failed to obtain a psychological expert opinion for the purposes of the case, the Court observes that, as a general rule, it is for the national courts to assess the evidence before them, including the means of ascertaining the relevant facts. It would be going too far to say that domestic courts are always required to involve a psychological expert on the issues of child residence, but this issue depends on the specific circumstances of each case (see Malinin v. Russia, no. 70135/14, § 74, 12 December 2017).
76. The Court observes that the domestic courts based their conclusions on the opinion of the social welfare authorities, which had had direct contact with E. and both parents and which had made a detailed assessment of each parent’s parenting abilities and of E.’s relationship with each of them (see, by contrast, Petrov and X. v. Russia, no. 23608/16, §§ 108-09, 23 October 2018).
77. The Court would also add that the first-instance court had ordered a psychological expert evaluation on two occasions (see paragraphs 8 and 24 above), but that the applicant objected to, and sought the recusal of, a number of the appointed experts (see paragraphs 13, 25 and 28 above). Lastly, as rightly pointed out by the Government, he also failed to advance the costs of such an expert evaluation (see paragraph 27 above). Given the circumstances – and bearing in mind the fact that the child was about to start school and that it was thus in her best interests to have the custody issue decided beforehand – the domestic courts cannot be blamed for dispensing with an expert evaluation and relying solely on the opinion of the relevant social welfare centre, which had assessed all the crucial aspects of the situation (see paragraph 22 above).
78. As regards the applicant’s allegation that the child has never been heard during the proceedings, the Court has on several occasions emphasised the importance of the right of children to be heard and the need to take their views into consideration on matters which concern them in a manner reflecting their age and maturity (see, for example, M. and M. v. Croatia, no. 10161/13, § 171, ECHR 2015). However, the Court notes that the child is not an applicant in the present case, and that in reality her interests might not fully correspond to those of the applicant. While the Court accepts that not hearing a child in custody proceedings might have some impact on the legal situation of a parent in that case (see, mutatis mutandis, Vujica v. Croatia, no. 56163/12, § 102, 8 October 2015), it considers that this particular complaint, as formulated by the applicant, falls to be considered as an issue pertaining to the overall assessment of evidence in his case (see, mutatis mutandis, Sahin, cited above, § 73).
79. In this connection, the Court observes that it can be seen from the report by the relevant social welfare centre, on which the first-instance court ultimately based its decision, that in her direct contacts with the centre’s team E. in fact expressed her opinion about both of her parents in a manner reflecting her age and degree of maturity (see paragraph 22 above). Furthermore, the conclusions of all relevant authorities were unanimous in finding that it would be in her best interests to live with her mother, and nothing in the case file indicates that E. ever expressed a wish for it to be otherwise. In such circumstances, the Court is satisfied that not hearing E. – who was seven years old at the very end of the proceedings – in court could not have so prejudiced the applicant’s case as to render it unfair.
80. The Court concludes from the above that the decision-making process was fair in so far as it allowed the applicant to present his case fully and that the reasons advanced by the domestic courts were relevant and sufficient. Accordingly, by rendering a custody order in favour of the mother, the domestic courts did not overstep their wide margin of appreciation.
81. Finally, in so far as the applicant complains about the insufficiency of contacts with his daughter as determined by the impugned court decisions (see paragraphs 33 and 34 above), the Court notes that the applicant was able to see E. at regular intervals every other weekend, and one or two afternoons during the week. It is true that E. lived in a town about 80 kilometres away from the applicant’s place of residence. However, in view of all of the materials before the Court, it cannot be said that the national courts in the present case failed to ensure that the applicant was able to effectively exercise his right to contacts with his daughter (see, by contrast, Gluhaković v. Croatia, no. 21188/09, § 79).
82. Accordingly, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 11 July 2019.
Renata DegenerKrzysztof Wojtyczek
Deputy RegistrarPresident
Full & Egal Universal Law Academy