Communicated on 4 April 2014
FIRST SECTION
Application no. 42534/09
Spaska MITROVA and Suzana SAVIK
against the former Yugoslav Republic of Macedonia
lodged on 20 July 2009
STATEMENT OF FACTS
The applicants, Ms Spaska Mitrova (“the first applicant”) and Ms Suzana Savik (“the second applicant”), were born in 1983 and 2007 respectively and live in Gevgelija. Both applicants are Macedonian nationals. The first applicant also has Bulgarian nationality. The first applicant submitted a power of attorney by which she authorised Mr Y. Grozev and Ms N. Dobreva, lawyers practising in Sofia, to represent her and the second applicant in the proceedings before the Court.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
On 15 October 2006 the first applicant married Mr V. Savik (“the father”). On 11 February 2007 she gave birth to their daughter, the second applicant.
On 10 May 2007 the Gevgelija Court of First Instance (“the trial court”) dissolved the marriage and gave the first applicant custody of the second applicant.
1. Relevant events concerning the father’s right to contact with the second applicant
In an order dated 31 May 2007 the Gevgelija Social Welfare Centre (“the Centre”) specified that the father could see the second applicant at the first applicant’s house every Friday for two hours. The applicant was subsequently involved in criminal proceedings in which she was convicted of child abduction (K.br.133/07 of 2 July 2007) for refusing to allow the father contact on four occasions between 8 and 29 June 2007. She was given a suspended prison sentence. According to the first applicant, the father failed to observe the scheduled meeting times and often turned up drunk, which left her with no choice but to deny him further visits.
On 21 November 2007 the Centre accepted a request by the father and specified a new venue and time for the meetings between him and the second applicant (five hours every Friday at the Centre). According to the order, the father’s right to contact with the second applicant, as specified in the order of 31 May 2007, had been considerably affected given the strained relationship between him and the first applicant. The new arrangement required the first applicant to take the second applicant to the Centre at a specified time each week. The first applicant refused to accept the order and failed to appear at three scheduled meetings in November and December 2007. This resulted in her being convicted of child abduction a second time and being given a further suspended prison sentence (K.br.229/07 of 17 December 2007).
On two occasions in January and March 2008, the father did not see his daughter because she was ill. On 4 April 2008 he asked the Centre to allow him longer, more frequent meetings. On 29 April 2008, after the Centre had obtained the views of the first applicant and the father and had examined its file, it partially accepted the father’s request and issued an order (12-07/33) specifying that meetings with the second applicant would now take place in the Centre every Monday for seven hours. According to the order, the new arrangement aimed “to protect the right of [the second applicant] to have contact with the father”. The Centre further specified two dates on which the father could meet with the second applicant to replace the meetings missed in January and March 2008 (see above). The first applicant was ordered to comply with the new contact arrangements, or risked criminal proceedings being instituted against her and the father being given temporary custody of the second applicant. It appears from the documents submitted that the scheduled meetings of 5 and 6 May 2008 did not take place because the first applicant failed to take the child to the Centre.
On 9 May 2008 the first applicant took the child to the Centre for a meeting with the father. In a letter of the same date the Centre notified the first applicant that its order of 29 April 2008 was legally binding and that she had to take the child to a meeting scheduled for 12 May 2008 or risked enforcement measures being brought against her. According to the letter, the order of 29 April 2008 had been served on the first applicant by post on 2 May 2008. According to records of 13 May 2008, the first applicant had been at the Centre to obtain the notification of 9 May 2008, which she alleges had not been served on her.
On 16 May 2008, one of the dates for contact specified in the Centre’s order of 21 November 2007, the first applicant took the second applicant to the Centre. According to the records of that meeting, the first applicant was served with a copy of a receipt on that occasion, purportedly regarding service of the order of 29 April 2008.
On 19 and 26 May 2008 the first applicant did not take the second applicant to the Centre for the scheduled meetings. On the earlier date, she also complained to the Ministry of Labour and Social Policy (“the Ministry”) that the Centre’s orders had been served on her incorrectly.
On 28 May 2008 the Centre allowed, by means of a separate order, enforcement of the order of 29 April 2008. It established that the first applicant had failed to take the child to four of the scheduled meetings, despite her being warned her of the possible consequences should she fail to comply. She was ordered to take the second applicant to the Centre on 2 June 2008 or risked being prosecuted for child abduction, an offence punishable under section 198 of the Criminal Code (see “Relevant domestic law” below). The order stated that an appeal would not suspend its enforcement (правото на жалба не го одлага извршувањето). The first applicant appealed against the order, arguing that she had never been served with the Centre’s order of 29 April 2008 and that her subsequent attempts to obtain a copy had been to no avail. It appears that her appeal was never decided.
On 17 June 2008 the first applicant asked the Centre to decide the level of contact the father should have with the child. In the absence of a decision, she asked the Ministry to decide her request on the merits. On 24 February 2009 the Administrative Court ordered the Ministry to decide the first applicant’s request. It appears that on 24 December 2008 the Centre decided the level of contact the father should have with the child. According to the first applicant, she complied with this later order.
2. Criminal proceedings against the first applicant (K.br.98/08)
On 19 June 2008 the public prosecutor brought criminal charges against the first applicant for child abduction. She was accused of failing to allow the scheduled meeting of 2 June 2008, as required by the Centre’s orders of 29 April and 28 May 2008 (see above). On 30 June 2008 the first applicant denied the charge, arguing that she had never been served with the Centre’s order of 29 April 2008. In this connection, she maintained that she had received another order from the Centre dated 30 April 2008 (12-07/34). She also expressed her concerns about the fairness of the upcoming trial, given her Bulgarian nationality. She referred to these arguments in written submissions to the trial court on 7 July 2008.
At the first hearing on 10 July 2008, the first applicant remained silent. The trial court examined the father, who stated that he had not seen his daughter at any of the scheduled meetings since 29 April 2008. A representative of the Centre stated that the first applicant had not complied with its orders of 29 April and 28 May 2008, notwithstanding that she had been informed of the consequences for non-compliance. She confirmed that the first applicant had been served with all relevant orders the Centre had made. The first applicant stated that she would maintain the position outlined in her written objections. On the same date the court, relying on the oral and documentary evidence admitted at the trial, found the first applicant guilty and sentenced her to three months in prison. The court said that it could not make an assessment of her defence, given that she had remained silent throughout the trial. In assessing the severity of the sentence, the court relied on her previous criminal record, namely the fact that she had already been convicted of the same offence on 2 July (K.br.133/07) and 17 December 2007 (K.br.229/07). The court held that the suspended prison sentence issued in those proceedings had not served their purpose, given that the first applicant had committed the same offence again. Accordingly, it concluded that a custodial sentence would deter her from reoffending in the future and would help crime prevention as a whole.
The first applicant appealed, arguing that the trial court had disregarded the arguments made in her submissions of 30 June and 7 July 2008. Even though she had remained silent throughout the trial, the court had still been required to consider the arguments made in her written submissions. In support of her allegation that she had not been served with the Centre’s order of 29 April 2008, she submitted a copy of a receipt certified by a notary public, according to which she had been served with another document from the Centre, namely a reply to one of her requests, instead of the order in question. In the appeal, the first applicant alleged that she had been set up by “communist and UDBA forces” (комунистичко-удбашка власт), and that the trial against her aimed to “threaten and make silent Bulgarian people in the Republic of Macedonia and according to [her], the Republic of Bulgaria and the European Union”.
On 3 December 2008 the Skopje Court of Appeal dismissed the appeal and upheld the lower court’s judgment. It held that the first applicant, notwithstanding the trial court’s explicit instructions, had remained silent and had not provided any reason why the father should not meet with the second applicant at the scheduled meetings. It further found that the trial court had correctly established that she had not complied with the Centre’s order of 29 April 2008. In so doing, it relied on statements by the Centre’s representative and the father, as well as the available documentary evidence, namely the notice of 9 May 2008 (see above) and two other documents from the Centre dated 30 June and 7 July 2008 (not submitted), which stated that the first applicant had failed to show up at the Centre on those dates. Lastly, it endorsed the reasons of the trial court regarding her custodial sentence.
On 18 February 2009 the first applicant applied to the Supreme Court for an extraordinary review of the final judgment, reiterating her arguments raised in the appeal (see above). On 5 May 2009 the Supreme Court dismissed her request, finding that the facts, which were based on admitted evidence, had been correctly established by the lower courts. In this connection, the lower courts had correctly applied the procedural rules and based their judgments on evidence admitted at the trial. Lastly, the court endorsed the reasons given by the lower courts.
The first applicant was ordered to start serving her sentence on 10 March 2009. On 13 March 2009 the trial court postponed the start of her sentence because the second applicant was ill (supported with medical evidence), and a new date was set for 14 June 2009. She started serving her sentence on 30 July 2009, and was released on 8 October 2009.
3. Subsequent events concerning the first applicant’s right to contact with the second applicant
On 9 July 2009 the Centre gave the father custody of the second applicant for fifteen days. It appears that the first applicant did not comply with that order.
On 30 July 2009 the Centre gave the father, of its own motion, temporary custody of the second applicant pending the conclusion of custody proceedings he had initiated in August 2008 (see below). According to the order, the first applicant had not allowed the second applicant any contact with the father at any of the scheduled meetings since 15 June 2009. After that date the applicants had gone into hiding, despite the second applicant’s poor health, which required continuing medical supervision. According to a handwritten note by a bailiff on the order, the first applicant had refused to accept service. The first applicant alleges that the order was served on her parents, not her, as she was in Skopje prison at the time.
It appears that while in Skopje prison, the first applicant and her parents applied several times to the Ministry (and once to the Centre) for a decision to be made regarding their contact with the second applicant. The Ministry did not reply to these requests. In October 2009 the first applicant, upon release from prison, wrote to the Ministry on three occasions asking for information. According to her, the Centre did not take any action to reunite her with the child. As a result, they were separated for over five months (including the time she had spent in prison).
According to the first applicant, on 23 November 2009 a lawyer acting on her behalf contacted the Centre to find out the whereabouts of her daughter. On that occasion, she was given the Centre’s order of 30 July 2009 for the first time. The lawyer allegedly requested the Centre to decide the amount of contact the first applicant could have with the child, which the Centre refused to do, as under the law such orders were made only after both parents had been interviewed by the Centre’s welfare officers. In view of her past experiences with the Centre, the first applicant refused to attend.
On 4 January 2010 the first applicant requested the Centre to decide the amount of contact she could have with her daughter, which the Centre did before issuing an order dated 10 February 2010. According to the first applicant, her first meeting with her daughter after being released from prison was on 19 February 2010.
4. Proceedings for custody of the second applicant
On 26 August 2008 the father initiated custody proceedings, seeking that the trial court amend its judgment of 10 May 2007 (see above) and give him custody of the second applicant. In a judgment of 11 March 2010 the court accepted his application and ordered the first applicant to hand the child over to the father. The first applicant would be allowed to maintain personal and direct contact with her. On 20 May 2010, however, the judgment was set aside by the Skopje Court of Appeal, which remitted the case for fresh examination. The Court of Appeal ordered that the trial court reassess the available evidence and provide convincing reasons why the first applicant was unfit to enjoy custody of the child.
On 15 October 2010 the trial court dismissed the father’s application. During the proceedings it heard the father and the first applicant and admitted several expert opinions.
It referred to an expert report of 25 August 2009, which stated that the father did not suffer from any mental illness and was fit to care for the child.
It further admitted an expert report dated 24 September 2009, in which the Centre’s welfare officers stated that the first applicant had had the necessary capacity to provide basic care to the child, but that she had continuously prevented her from seeing the father. They had not applied to court to have her parental rights restricted, since there were other ways to protect the interests and rights of the child. They further argued that the first applicant’s behaviour had been inappropriate; she had used insulting language towards everyone involved in the case, and had presented herself, for no reason, as a victim of the system. According to the experts, this had not been a suitable environment for the second applicant. On the basis of all the information available, the Centre’s welfare officers suggested that it would be in the child’s best interests if the father were to be given custody. In such circumstances, the child could maintain a relationship with both parents, which she had been unable to do when the first applicant had had custody.
The court also referred to a psychiatrist’s report dated 5 February 2010, which stated that the first applicant did not suffer from any mental illness, and that there was no evidence that she had molested the child. Accordingly, she was able to care for herself, her property and the child.
The court established that both parents had an unsteady income and lived in housing that met the required standards. The first applicant had no cooperative or self-critical awareness in her dealings with State authorities, unlike the father whose behaviour was of no concern. The first applicant had, for a protracted time, prevented the father from having contact with his daughter at the scheduled meetings. The first applicant’s past behaviour had been the result of her lack of trust in the authorities and her strained relationship with the father, but this had not affected her ability to care for the child. Lastly, there was nothing to indicate that she would abuse the child or that she suffered from a mental illness. The court further referred to the child’s young age, and her need to be with the mother. It also stated that during the proceedings, the parents had understood the need to communicate normally with each other, as it was in the child’s best interests. Accordingly, they had agreed to decide on their rights in respect of the child. Lastly, it concluded that the first applicant’s nationality was of no relevance to the case. On 3 February 2011 the Skopje Court of Appeal upheld the judgment.
On 1 March 2012 the Supreme Court overturned the lower courts’ judgments and gave the father custody of the second applicant. The first applicant was further ordered to pay him maintenance of 2,000 Macedonian denars (approximately EUR 30) per month. Having regard to all circumstances and events after the dissolution of the marriage, as well as the Centre’s expert opinion, it being the competent body, the court held that there were grounds to amend the trial court’s order of 10 May 2007 (see above) specifying who had custody of the child. On the basis of the established facts, the Supreme Court found that solely because of the first applicant, the child had been deprived of the fundamental right to receive parental care from both parents. According to the court, the lower courts had disregarded, without any reasonable grounds, the change in circumstances and the Centre’s expert opinion. It was in the best interests of the child and her development that the father was given custody. His past behaviour showed that his main concern was the child’s well-being. Her young age could not be considered, as argued by the lower courts, “as the only relevant legal ground (единствено правно решавачка причина)”. The court further stated:
“The child’s age is an important ground, but it is not the only [element] which is decisive for the court. A court order choosing which of the parents of a minor child should be given custody is dependent on other factors, such as: the parents’ personalities; their views regarding their rights and duties in respect of their child; the rights and interests of the child and certainly [the child’s] right to both parents and the need that the child has the best environment for [his or her] healthy psychophysical development”.
The applicant was served with the judgment on 18 June 2012.
On 12 July 2012 the Centre decided on the amount of contact the first applicant could have with her daughter. According to the order, which both parents approved, the first applicant would have the child between Monday and Friday. Both parents were allowed a 10-day summer holiday and a 5-day winter holiday with her. It was further specified in the order which of them would have their daughter on religious and family holidays.
According to the first applicant, she was required, pursuant to the Supreme Court’s judgment, to seek permission from the father about any decisions concerning the second applicant’s education or upbringing. In support, she submitted copies of submissions in which such permission was sought and granted for certain educational activities.
B. Relevant domestic law
1. Criminal Code
Section 198(1), (3) and (4) of the Criminal Code provides that a person who, inter alia, hinders the enforcement of a legally binding order concerning a child’s custody is liable to a fine or up to a year’s imprisonment. When issuing a suspended prison sentence, the court may order the return of the child, or enforcement of the order. If the parent complies with the previous orders, he or she may be released (ослободи од казна).
2. Family Act (Official Gazette no. 157/2008, consolidated version)
According to section 14(1) and (6) of the Family Act, a welfare centre provides assistance and protection in family related matters. An appeal does not suspend the enforcement of its orders.
Under section 78(1) and (2), a welfare centre may decide on the custody of a child if the parents do not live together and cannot reach an agreement themselves. The welfare centre may, of its own motion or upon a request by the parent, decide on the custody of the child if there has been a relevant change in circumstances.
Section 79(3) provides that a welfare centre may, upon a request by a parent, decide the amount of contact he or she may have with child, in accordance with the change in circumstances of the case.
Section 80(4) provides that a court, upon a request by the parent or the welfare centre, may amend a judgment regarding a child’s custody if the circumstances of the case so require.
Section 83 provides that welfare centres supervise the enforcement of parental rights.
Under section 87(4) and (6), a welfare centre may order temporary custody (no longer than fifteen days) to a parent if the parent with custody does not comply with the centre’s orders and prevents the parent without custody from having contact with the child at two or more consecutive meetings. The welfare centre may grant temporary custody to a parent if direct contact is interrupted for over two months if the parent with custody fails to comply with the welfare centre’s orders.
3. Non-Contentious Proceedings Act (Official Gazette no. 9/2008)
Sections 106 to 111 concerned proceedings relating to restricting a person’s parental rights. As specified in those provisions, a court would decide, upon a request by a parent and the competent welfare centre, whether there were grounds for restricting such rights.
COMPLAINTS
In submissions of 23 December 2009, the applicants complained that the first applicant’s punishment in the criminal proceedings against her (K.br.98/08) was excessive and grossly disproportionate, and that the resulting separation from her daughter for several months (during and after the first applicant’s imprisonment) had violated the right to respect for their family life under Article 8 of the Convention. In this connection, they complained about the first applicant’s temporary loss of custody and the absence of a decision on her contact rights to the child in the Centre’s order of 30 July 2009 (see above).
On 18 December 2012 the applicants further complained under Article 8 about the Supreme Court’s judgment of 1 March 2012 in which the first applicant lost custody of the second applicant. They alleged that the judgment had been based on irrelevant considerations, such as the first applicant’s prison sentence and a one-sided opinion given by the Centre almost three years prior to that final decision. They also argued that the Centre had decided the parents’ contact rights to the child (in its order of 12 July 2012) in disregard of the court judgments, which rendered those judgments ineffective and suggested that the courts had no actual control over the Centre.
QUESTIONS TO THE PARTIES
1. Has there been a violation of the applicants’ right to respect for their family life, contrary to Article 8 of the Convention, with the first applicant’s conviction in the criminal proceedings against her (K.br. 98/08)? In particular, was the three moths’ prison penalty issued in those proceedings proportionate to the aims pursued?
2. As regards the alleged separation of the applicants between 30 July 2009 and 19 February 2010, have they exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, did they request during that time that the Centre regulate the first applicant’s access rights to the second applicant? Was the Centre competent to decide that issue on its own motion, with the decision of 30 July 2009 or with a separate decision? If the Centre had such competence, has the Centre’s failure in this respect violated the applicants’ right to respect for their family life, contrary to Article 8 of the Convention?
3. In view of the Centre’s decision of 12 July 2012 concerning the first applicant’s access rights to the second applicant, can the applicants claim to be victims of a violation of their Article 8 rights within the meaning of Article 34 with regard to the Supreme Court’s judgment of 1 March 2012? If so, did the Supreme Court give relevant and sufficient reasons for revoking the first applicant’s custody rights in respect of the second applicant? Was the revocation of the first applicant’s custody rights necessary and proportionate within the meaning of Article 8 of the Convention?
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