FIRST SECTION
Application no. 53565/13
Marjan MITOV and others
against the former Yugoslav Republic of Macedonia
lodged on 20 August 2013
STATEMENT OF FACTS
A list of the applicants is set out in the appendix.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. As regards the first applicant
Since 1999 the first applicant lives and works in Australia.
On 19 September 2008 the first applicant married with Mrs J.S.M. in Skopje. They subsequently left to Australia where on 30 August 2010 Mrs J.S.M. gave birth to their daughter M.M. The relations between the first applicant and Mrs J.S.M. apparently deteriorated and on an unspecified date in 2011, she arrived, together with M.M., in the respondent State. In November 2011 the first applicant took eleven-month unpaid leave from work and arrived in the respondent State in order to stay with his daughter.
On 10 October 2011 Mrs J.S.M. brought a civil claim before the Skopje Court of First Instance (“the first-instance court”) seeking dissolution of the marriage with the first applicant.
On 13 October 2011 the Social Care Centre (“the Centre”), on request by the first-instance court, started proceedings regarding the parental rights of the first applicant and Mrs J.S.M.
On 6 December 2011 the first applicant requested that the Centre decide his access rights to his daughter. On 3 January 2012 the Centre gave interim custody of the child to Mrs J.S.M. and specified the first applicant’s access rights to M.M. (twice a month in the Centre under supervision by experts). Mrs J.S.M. was ordered to bring the child in the Centre. As stated in the decision, it was valid until the final conclusion of the civil proceedings regarding the dissolution of the marriage. An appeal did not suspend the enforcement of the decision.
On 8 April 2012 the Ministry of Labour and Social Policy accepted an appeal that the first applicant had submitted against the Centre’s decision of 3 January 2012 and remitted the case for a repeated examination. It ordered the Centre to reconsider the facts of the case and to take into consideration the interests of the child.
On 9 May 2012 the first-instance court dissolved the marriage between the applicant and Mrs J.S.M.; granted custody of the child to his ex-wife; ordered the first applicant to pay child maintenance; and established that he would have continuing contacts with his daughter as decided by the Centre. This decision became final on 25 December 2012.
It appears that on 10 May 2012 the first applicant lodged with the Centre a fresh request seeking that it decides on his access rights to M.M. On 4 July 2012 the Centre specified the first applicant’s access rights to his daughter (it no longer specified supervised meetings in the Centre) and ordered that his ex-wife complies with the decision. As stated in the decision, an appeal would not stay its enforcement. On 1 October 2012 the Ministry of Labour and Social Policy dismissed an appeal by Mrs J.S.M.
It appears that on 8 October 2012 the first applicant informed the Centre that he would return in Australia. On 22 October 2012 the Centre put aside its decision of 4 July 2012 and stated inter alia that:
“[The first applicant], despite the decision (of 4 July 2012), did not see his minor child at any of the scheduled meetings specified in the decision dated 4 July 2012.”
This decision was served on the first applicant on 29 October 2012.
In April 2013 the first applicant informed the Centre that he would stay in the respondent State between 16 May and 2 September 2013. In this respect, on 23 April 2013 he requested that the Centre specify his access rights to his daughter, which the Centre did with a decision of 7 June 2013 (it specified again unsupervised regular meetings with the child). According to him, he had met with M.M. only shortly in the Centre in the presence of an expert.
With a letter of 3 July 2013 the first applicant sought that the Ministry of Labour and Social Policy secure the assistance of police in view of enforcing the Centre’s decisions.
On 8 July 2013 the first applicant requested forcible enforcement by the Centre. He also sought that the Centre grants him, on the basis of section 87 (4) and (6) of the family Act (see “Relevant domestic law” below), temporary custody of the child given the prolonged absence of any contacts with her.
With a letter of 11 July 2013 addressed to the Centre, the first applicant complained that he had not seen his daughter for two years and that the Centre had been responsible to enforce its decisions regarding his access rights.
On 27 August 2013 the Centre informed the first applicant that the Ministry of Justice was responsible, under section 277(2) of the Administrative Proceedings Act, for forcible enforcement of the Centre’s decisions upon a request by the Centre or the party concerned. According to the first applicant, he was informed subsequently by the Ministry of Justice that it had no jurisdiction regarding forcible enforcement of the Centre’s decisions.
On 2 September 2013 the first applicant left to Australia.
In a letter of 6 September 2013, the Centre informed him that:
“[The enforcement of the decision of 7 June 2013] is completely impeded by the child’s mother, Mrs J.S.M. and none of the scheduled meetings have been realized until the present day. The minor child is completely deprived by the mother of the presence of her father in her development. In result there is an irreparable damage to her psychological, emotional and social development ... [the decision of 7 June 2013] is completely obstructed by Mrs J.S.M. who stated in the presence of an expert employed with the Centre and a police officer that she would not enforce the decision ...”
2. As regards the second and third applicants (the parents of the first applicant)
On request by the second and third applicants dated 4 October 2012, on 9 January 2013 the Centre specified their access rights to M.M. As stated in the decision, the appeal would not suspend its enforcement. As stated by the second and third applicants, and confirmed by a letter that the Centre had sent to the Helsinki Committee in Skopje (available in the file), they did not meet with M.M. at any of the scheduled meetings specified by the Centre. On 7 June 2013 the Centre set aside this decision given the fact that it had specified (with a separate decision of that date, see above) the access rights of the first applicant.
The applicants provided copies of letters submitted to the State Administrative Inspectorate and the Ministry of the Interior in which they complained about the non-compliance of Mrs J.S.M. with the decisions of the Centre and the latter’s failure to enforce them.
They also submitted that they had informed the public prosecutor about the failure of Mrs J.S.M. to comply with the Centre’s decisions and their inability to see M.M. A case was allegedly open with the public prosecutor against Mrs J.S.M. on account of seizure of a minor.
B. Relevant domestic law
1. Family Act (Official Gazette no. 157/2008, consolidated version)
According to section 14 (1) and (6) of the Family Act, the Social Care Centre is responsible to provide assistance and protection in family related matters. An appeal does not suspend the enforcement of its decisions.
Section 83 of the Family Act provides that the Social Care Centre is responsible to supervise the enforcement of the parental rights.
Under section 87 §§ 4 and 6 of the Family Act, the Centre can order temporary stay (no longer than 15 days) of a child with a parent if the other parent, who has custody rights, does not comply with the Centre’s decisions and prevents the first parent (who has no custody rights) to see the child at two consecutive meetings. The Centre can grant temporary custody of a child to a parent if direct contacts are interrupted for over two months due to the failure of the parent, who has custody rights, to comply with the Centre’s decisions.
2. Administrative Proceedings Act (Official Gazette no. 38/2005)
Section 270 §§ 1 and 2(3) of the Administrative Proceedings Act provides that a decision rendered in administrative proceedings is to be executed after it becomes enforceable. When an appeal does not suspend the enforcement of a first-instance decision, the latter becomes enforceable after it is served on the party concerned.
Under section 274, the enforcement is carried out ex officio or upon a request of the party concerned. A decision is to be enforced ex officio if the public interest so requires. The enforcement of a decision that is in the interest of a party concerned is carried out on his or her request.
According to section 276 § 1, the enforcement of a decision that provides for non-pecuniary obligation is carried out administratively.
Section 277 provides that the administrative enforcement is carried out by the body that rendered the decision (which enforcement is required) in first instance, unless otherwise specified by law. If that body has no jurisdiction in this respect, the administrative enforcement of a decision falls within the competence of the administrative body of general competence. The Ministry of the Interior is obliged to provide assistance regarding the enforcement of an administrative decision if the competent body so requires.
Under section 278, the competent body renders, immediately or no later than thirty days after an administrative decision becomes enforceable, a separate decision by which it authorises the administrative enforcement.
Sections 286-288 specify the forceful enforcement of non-pecuniary obligations (извршување по пат на принуда), which can be carried out by way of lodging a misdemeanour complaint against the person who refuses to comply with the administrative decision (section 286) or directly (непосредна принуда) if such enforcement is specified by law (section 287).
3. Administrative Disputes Act (Official Gazette no. 62/2006)
Under section 22 (1) of the Administrative Disputes Act, if the second-instance body did not give a decision within 60 days and within 7 days after a repeated request by an interested party, the latter can institute administrative disputes proceedings in the same way as if his or her appeal had been dismissed. Section 22(3) provides that an interested party can ask the second-instance body to decide on his or her request if the first-instance body failed to issue a decision within 60 days (or within a shorter time-limit if provided for under a specific law) from the submission of that request. If the second-instance body fails to give a decision, the interested party can institute administrative disputes proceedings under the conditions specified in subsection 1.
COMPLAINTS
The applicants complain under Articles 6 and 8 of the Convention about the failure of the authorities to enforce the Centre’s decisions regarding their access rights to M.M. In this connection they also allege a lack of an effective remedy under Article 13 of the Convention.
QUESTIONS TO THE PARTIES
1. Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In this connection can the administrative enforcement specified in the Administrative Proceedings Act, which can be launched ex officio (section 274 of the Administrative Proceedings Act), be regarded effective, in particular in respect of the first applicant who had a limited stay in the respondent State? Did the first applicant exhaust all effective remedies in respect of his request submitted to the Centre on 8 July 2013 under section 87 (4) and (6) of the Family Act? The Government are invited to explain (and provide copies of domestic practice, if any) the administrative enforcement of the Centre’s decisions in similar cases.
2. Has there been a violation of Article 6 § 1 of the Convention? In particular, does the non-enforcement of the Centre’s decisions specifying the applicants’ access rights to M.M. amount to a breach of this provision?
3. Has there been a violation of Article 8 of the Convention? In particular, have the applicants suffered a breach of their right to respect for their family life as a consequence of the impossibility to see M.M.?
4. Did the applicants have at their disposal an effective domestic remedy for their complaints under Articles 6 and 8, as required by Article 13 of the Convention?
Appendix
Mr Marjan MITOV (“the first applicant”) born on 30/06/1972 is a Macedonian national who was born in 1972, lives in Sydney, Australia and represented by N.Najdenova Levik Mrs Cveta MITOVA (“the second applicant”) born on 26/02/1949 is a Macedonian national who was born in 1949, lives in Skopje and represented by N.Najdenova Levik Mr Denčo MITOV (“the third applicant”) born on 26/07/1950 is a Macedonian national who was born in 1950, lives in Skopje and represented by N.Najdenova Levik
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