Published on 25 March 2024
SECOND SECTION
Application no. 35790/23
Tea LONČAR
against Croatia
lodged on 19 September 2023
communicated on 7 March 2024
SUBJECT MATTER OF THE CASE
The case concerns a custody dispute over the applicant’s son and the applicant’s alleged discrimination.
In 2010 the custody of the applicant’s son was awarded to the father on the basis of a mutual agreement between the parents (“the first set of custody proceedings”).
The applicant thereafter initiated two sets of proceedings, one in 2011 seeking to amend the custody decision and the other in 2015 seeking to establish that she had been discriminated against in the first set of custody proceedings.
By a judgment of 13 March 2020, the applicant’s request to amend the custody decision was granted by the first-instance court. Following an appeal by the father, on 7 July 2020 the Zagreb County Court overturned that judgment and dismissed the applicant’s claim concluding, among other things, that continuity was important for the normal psychosocial development of a child.
Meanwhile, in the proceedings concerning discrimination, it was established by a final court judgment of 30 September 2021 that the applicant had been discriminated against on account of her sex. The court found that during the first set of custody proceedings in 2010 the employees of the competent Social Welfare Centre had failed to treat the applicant as a victim of domestic violence, but instead had encouraged her to agree to the custody being awarded to the father and threatened that otherwise the child would be taken by the social services. The applicant submitted the said judgment as soon as it become final to the Constitutional Court, while it was still deciding her constitutional complaint against the Zagreb County Court’s judgment of 7 July 2020 adopted in the second set of custody proceedings, but the Constitutional Court rejected it as being out of time. The Constitutional Court’s decision was served on the applicant on 7 June 2023.
The applicant complains, under Articles 6 § 1, 8 and 14 of the Convention, about the arbitrariness of the second-instance court’s judgment of 7 July 2020 claiming that it had been based on the principle of continuity and on discriminatory attitudes towards her, without considering the parenting capacities of both parents, the child’s wish to live with his mother, the aforementioned discrimination and the length of the proceedings.
QUESTIONS TO THE PARTIES
1. Has there been a violation of the applicant’s right to respect for her family life, contrary to Article 8 of the Convention (see Petrov and X v. Russia, no. 23608/16, §§ 98-114, 23 October 2018; Vujica v. Croatia, no. 56163/12, §§ 97-103, 8 October 2015; and Antonyuk v. Russia, no. 47721/10, §§ 115-147, 1 August 2013)? In particular, were the reasons adduced by the second-instance court in the second set of custody proceedings relevant and sufficient in the circumstances? Was the decision-making process fair and such as to ensure due respect for the various interests safeguarded by Article 8, notably the best interests of the child?
2. 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?
3. Has the applicant suffered discrimination, contrary to Article 14 of the Convention, in the second set of custody proceedings (see, inter alia, Petrov and X, cited above, §§ 124-125)?