FIRST SECTION
DECISION
Application no. 20207/16
Silvije PALEŠĆAK
against Croatia
The European Court of Human Rights (First Section), sitting on 22 October 2019 as a Committee composed of:
Tim Eicke, President,
Jovan Ilievski,
Raffaele Sabato, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 6 April 2016,
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 Silvije Palešćak, is a Croatian national who was born in 1979 and lives in Zagreb. He was represented before the Court by Mr S. Babić, a lawyer practising in Zagreb.
2. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant was living in a common-law marriage with V.K. On 28 February 2013 their daughter, B. was born, and on 16 August 2013, V.K. left with B. to live with her parents.
5. On 16 September 2013 V.K. lodged an application for custody of B. with the Zagreb Municipal Civil Court (Općinski građanski sud u Zagrebu). On 23 September 2013 the applicant requested that custody of B. be awarded to him because V.K. had a psychological problem of being overly fearful about B.
6. On 25 September 2013 the applicant and V.K. signed an agreement allowing the applicant to see B. for four hours in the afternoons every Monday, Thursday and Sunday.
7. At the first hearing held on 14 October 2013 the court decided to join the above claims into one set of proceedings and to request the competent social welfare centre (“the centre”) to issue a report about the family and make a recommendation on the custody of B.
8. On 24 February 2014 the centre delivered its report, concluding that it was in B.’s best interest to live with her mother.
9. Following the next court hearing on 7 March 2014, the applicant sought an interim measure, claiming that V.K. no longer allowed him to see B. He also challenged the centre’s recommendation (see paragraph 8 above).
10. At the next hearing the court heard the parties, who agreed that their communication had been poor. The applicant stated that V.K. had not been allowing him to see B. pursuant to their earlier agreement, in that their contact sessions had been irregular or shorter than agreed. On 14 April 2014 the court invited the centre to organise supervision of both parents’ parental care (nadzor nad izvršenjem roditeljske skrbi).
11. In a supplement to a recommendation of 24 February 2014, submitted on 16 June 2014, the centre adapted the times of the contact sessions between the applicant and B. to the new working hours of both parents. Sessions were scheduled two afternoons during the week, every other Saturday and every other Sunday. The report stated that the applicant had insisted that B. sleep overnight at his house, but that V.K. had not agreed to that since she was still breastfeeding. The report also noted an incident which had occurred between the applicant and a social worker who had interviewed him.
12. On 9 July 2014 the centre organised the supervision of both parents’ parental care for an initial period of six months. A social worker, L.S., was appointed for the task.
13. Over the following three months, L.S. described in detail all meetings with both parents. In a particular incident on 28 September 2014, when it had transpired that the applicant had moved and both V.K. and L.S. asked him about his new address, he refused to reply and threatened the social worker. He also refused her requests to visit his new place of residence in order to establish his living conditions for the purposes of B.’s visits. Ultimately, he informed L.S. that he was no longer in agreement with her supervising his parental care. Consequently, L.S. withdrew and another social worker, T.R., was appointed.
14. On 12 September 2014 the court issued a first interim measure on contacts between the applicant and his daughter, scheduling their sessions for two hours Tuesdays and Thursdays, every first and third Saturday of the month and every other Sunday.
15. On 21 October 2014 when V.K. went to the applicant’s home to pick up B., the applicant physically attacked her and some of her family members in the presence of B. The following day, the applicant was sentenced by the Zagreb Minor Offences Court (Prekršajni sud u Zagrebu) to thirty days’ imprisonment, suspended on probation for one year, for psychological and physical violence within the family.
16. At the next hearing on 15 January 2015 the court issued a second interim order, valid for a period of six months, changing the visiting schedule for the applicant and B. so as to include her spending a night every other weekend at her father’s house.
17. On 16 June 2015 the applicant complained to the court that V.K. had obstructed him from seeing B. on numerous occasions since the latest court interim order and that he had not seen B. in almost a month. He also lodged a criminal complaint against V.K. in this respect.
18. On 23 July 2015 V.K. informed the court that she suspected that the applicant was sexually abusing B., which is why she had not allowed him to see her without the presence of a third person.
19. Meanwhile, on 8 July 2015, the Zagreb Polyclinic for the Protection of Children (“the Polyclinic”) issued a multidisciplinary report concluding that there were no indications of sexual abuse. It recommended an assessment of the parental capacities of both parents and child-protection measures.
20. On 15 July 2015, during a scheduled contact session between the applicant and B., at which both V.K. and social worker T.R. were present, the applicant became very angry and tried to take B. with him by force. The police were called and had to intervene. Following that incident, and threats and insults received by T.R. from the applicant, T.R. declared that he was no longer willing to pursue the supervision of the parental care in the case.
21. At the next hearing held on 18 August 2015, the court issued another interim order scheduling the applicant’s contact sessions with B. twice a week in a public place in the presence of a new social worker, J.B., who would supervise the parental care.
22. On 1 September 2015 the applicant informed the court that the consent given to the new contact schedule given by his former attorney at the hearing of 18 August 2015 had not reflected his true will. He argued that supervision of his contact sessions with B. had not been necessary as it had been shown that V.K.’s sexual abuse accusations had been false. He also criticised the new supervisor, J.B., for not conducting the supervision properly. The applicant urged the court to allow him longer unsupervised contact sessions with the child. He repeated the statements he had made at the end of September and asked the centre to appoint a new supervisor in the case.
23. On 1 October 2015 J.B. was relieved of her duties because the applicant had intimidated and threatened her on several occasions. The applicant was informed that, until a new person could be appointed for the supervision duties, no contact sessions between him and B. could take place. His last supervised session with B. had taken place on 27 September 2015. According to the applicant, he also managed to see B. briefly on 18 and 25 November 2015 in her kindergarten.
24. On 27 November 2015 the centre informed the court that they were unable to find a social worker willing to take on the supervision of parental care in the applicant’s case, despite the fact that they had asked for help from another social welfare centre.
25. The next court hearing was held on 22 December 2015. The centre proposed supervised contacts between the applicant and B. in controlled conditions, but the applicant disagreed. The centre was urged to appoint another social worker to supervise the parental care.
26. On 7 January 2016 the applicant lodged a request with the Zagreb Municipal Civil Court for the protection of the right to a hearing within a reasonable time. On 3 March 2016 the court dismissed his request as ill‑founded, finding that proceedings lasting two years, five months and fourteen days had not been unreasonable. Appeals lodged by the applicant against that decision were dismissed. On 1 April 2016 the applicant lodged a constitutional complaint against the Municipal Court’s decision.
27. Meanwhile, on 11 January 2016, the centre issued a written report again suggesting that contacts between the applicant and B. take place in controlled conditions twice a month under the supervision of a social worker in a public institution. It listed the available times for such contact sessions and confirmed the availability of a supervising officer on the proposed dates. The applicant did not agree.
28. On 16 February 2016, after it had been established that the case file had gone missing, the court ordered its reconstruction (rekonstrukcija spisa).
29. On the same date the applicant applied for recusal of the judge, but on 29 February 2016 his application was dismissed as unfounded. A subsequent constitutional complaint lodged by him was also dismissed.
30. Meanwhile, on 23 February 2016 the applicant lodged a criminal complaint against two employees of the centre for failure to enforce a final court decision regulating his contact rights with B.
31. At the next hearing held on 8 April 2016 the court concluded the reconstruction of the case file. The centre reiterated its proposal that contact sessions between the applicant and B. take place in a public institution under the supervision of one of their employees, but the applicant again disagreed. He was also warned several times about interrupting the hearing by mocking and loud laughter, due to which the hearing was ultimately adjourned. At the end of the hearing the applicant also addressed an insult to V.K.’s lawyer.
32. On 18 April 2016 the court issued a fourth interim order, scheduling contacts between the applicant and B. for two hours every first Sunday of the month and every third Saturday of the month in the D. Home for Children and Adults (“the Home”) under the supervision of another social worker, I.L. It also ordered that a multidisciplinary expert opinion in respect of the parents and the child be obtained. The applicant stated that he would cover the costs of such expert opinion only if it was to be obtained in another country, since there were no impartial or sufficiently professional institutions in Croatia. The relevant parts of that decision read as follows:
“... It should be noted that the court of its own motion takes into account the best interests of the child, whereas it also has to take into account the right and obligation of the parent with whom the child lives to enable contact sessions with the non-custodial parent, as well as the right and obligation of the [non-custodial] parent not to put the minor child’s interests at risk.
It is precisely the interests of the child that the father has been continuously endangering through his behaviour, due to his extreme unwillingness to cooperate with appointed supervisors. Due to frequent disagreements, conflicts and incidents caused by the father’s behaviour and his failure to set limits, ... it is necessary, in order to protect the child’s interests, to limit the contact sessions so that they take place under supervision and in controlled conditions.
It transpires from the [available] evidence that the father is unable to control his behaviour, that his behaviour is unpredictable and as such directly endangering the interests of [the three-year-old] child.
...
While it is true that a parent has the right to contact sessions with the child and that it is in the child’s interests to create an emotional bond with the [non-custodial] parent, as relied on by the [applicant] throughout these proceedings, through his conduct [the applicant] is directly endangering the interests of the child. His actions and uncontrolled behaviour have led to the need to limit the contact sessions.
The parental role and parental capacity are precisely visible through the parent’s capability of putting the interests of the child above his own, even if that leads to a limitation of his [or her] parental rights, in particular if his [or her] own behaviour has caused such limitations ...”
33. The applicant’s contact sessions with B. were scheduled to resume on 1 May 2016, but since that day was a public holiday and the Home was closed, he was invited to meet with B. a day earlier. He refused to do so. Their contact sessions finally resumed on 21 May 2016. According to the monthly reports of the supervisor, the relationship between the applicant and B. was warm and without any difficulties.
34. On 7 July 2016 the Pula County Court (Županijski sud u Puli) dismissed an appeal lodged by the applicant against the fourth interim order (see paragraph 32 above).
35. Meanwhile, V.K. had advanced her share of the costs of the expert opinion and on 15 July 2016 the court urged the applicant to do the same.
36. On 30 November 2016 the applicant lodged a fresh request with the Zagreb Municipal Civil Court for the protection of the right to a hearing within a reasonable time, which was dismissed as unfounded. On 21 February 2017 he lodged a constitutional appeal against that decision.
37. On 30 November 2016 the applicant also applied for recusal of the judge in his case. His application was dismissed on 13 December 2016.
38. At the next court hearing held on 3 February 2017 the court examined the centre’s report on the applicant’s contacts with the child and observed that he behaved problematically towards the centre’s employees and other personnel. The court appointed experts to provide a multidisciplinary expert opinion, including a psychiatrist from Slovenia, as insisted on by the applicant. It again ordered the applicant to advance the costs, which he did. The expert opinion was received by the court on 11 September 2017.
39. Meanwhile, another social worker who had been appointed to supervise the applicant’s contact sessions with B. asked to be relieved of that duty due to certain incidents and insults by the applicant. A new supervisor, G.K., was appointed.
40. The court held further hearings on 27 October, 20 November, 4 and 12 December 2017 and 21 February 2018. On those occasions, it heard the experts who had prepared the multidisciplinary opinion. A psychiatrist confirmed that the applicant’s contacts with B. could gradually start taking place in more relaxed conditions, provided that the father started treatment in order to be able to assess his own conflictual behaviour more objectively. A psychologist observed that the father sometimes acted inappropriately in the presence of the child due to outside situations and that he was lacking in emotional competencies. Another psychologist stated that the applicant was impulsive and easily entered into conflict with anyone he considered to be in disagreement with him.
41. On 10 April 2018 the applicant applied for recusal of the trial judge. On 13 April 2018 his application was dismissed as unfounded.
42. In June 2018 G.K. sought to be relieved of his supervising duty due to several serious verbal attacks and threats by the applicant, including a physical assault. In July 2018, a new supervisor, D.N.G., was appointed.
43. At the next two hearings held on 15 June and 19 October 2018 the court heard the applicant and V.K. At the latter, the court concluded the main hearing.
44. In October 2018 D.N.G. sought to be relieved of her supervising duty. She submitted to the centre a number of threatening and insulting messages she had received from the applicant. Another supervisor, Z.K., was appointed thereafter.
45. On 6 November 2018 the Zagreb County Court issued a protective measure (mjera opreza) prohibiting the applicant from approaching V.K. or the child.
46. On 16 November 2018 the centre informed the court about an incident which had occurred during one of the scheduled contact sessions between the applicant and B. at the Home. At the end of that session, the applicant had been verbally aggressive towards the mother when she had come to pick up the child and towards the security guard present at the premises, all in the presence of B. The relevant part of that report reads as follows:
“... according to the report of the current supervisor of the measure, as well as the reports of the previous supervisor already submitted to the court, it transpires that the father does not refrain from showing his dissatisfaction with the system, as well as his negative attitude towards supervisors, security guards and the mother, in front of the child B., whereby he exposes her to unpleasant and stressful situations. For instance, at their contact session of 2 September 2018 the father told B. about ‘the mean judge and mean ladies at the centre’ who prevent them from seeing each other outside the premises of the ..., he showed [her] a photograph of a psychologist from the Polyclinic ... and commented that she was ‘very mean’, he made fun of the mother’s new job and at the last contact session of 4 November 2018 he openly threatened the mother in front of the child [saying] ‘I’ll take care of you, I will bury you at this very spot’. It transpires from the foregoing that, in addition to playing and spending time with the child, the father during the described sessions focuses on the professionals involved in the case and the mother, instead of using the time for meaningful contacts with the child, which is the ultimate goal of the measure at issue. The measure of supervision of contacts has been issued with a view to protecting the interests and well-being of the child, whereas based on the above, it would appear that the reality is quite the opposite. Among other things, the supervisor’s extraordinary report voices a concern regarding the purposefulness of continued contact sessions between the father and the child, since the described loss of self-control of [the applicant] produces stress and fear in the child. At the same time, the father’s behaviour is unpredictable to the point that it indicates that he cannot perceive [the effects of] his parental care on his relationship with the child and the quality of their mutual relationship; he is not able to realise the consequences of his behaviour for the child, which puts into question his capacity for spending time with his child independently. Namely, meaningful parental care comprises adequate relations with persons included in the child’s life, and it is not sufficient to be a polite and careful parent to the child and act unacceptably towards other persons in the child’s presence. According to the aforementioned, and to the psychological and psychiatric expert opinion in this court case, it transpires that the father does not have the requisite capacity for independent contact sessions with the child.
In sum, the expert team of this centre, in charge of the continued implementation and assessment of the measure of supervision of contact sessions between the father and the child, is of the opinion that the way in which those contacts are currently taking place, despite the controlled conditions, endangers the welfare of the child and is not in her best interests.”
47. As a consequence of the foregoing, on 22 November 2018 the court decided to reopen the main hearing in the case.
48. On 27 December 2018 the centre issued its final opinion on the case, recommending that the child live with her mother and that the applicant only be allowed to send her one letter or a gift once a month. The centre also recommended that the applicant be included in therapy as soon as possible with professionals trained in psychotherapeutic education with a view to reaching clearly set goals: to become aware of, and take responsibility for, his own violent and inappropriate behaviour in the child’s presence; to realise the risk for the child of his own violent and inappropriate behaviour; and to develop self-control strategies and adequate control of his negative emotions.
49. On 25 February 2019 the Zagreb Municipal Civil Court gave a judgment in the case, awarding custody to the mother and prohibiting all contacts between the applicant and his daughter, save for a letter, a card or a gift which he could send to the child once a month. The relevant part of that judgment reads as follows:
“... During the proceedings ... [it has been] established that at a large number of contact sessions [the applicant] for some reason, as soon as the unfolding of the session did not suit him, reacted violently, shouting and threatening the supervisor with the courts, the police, criminal complaints ... as a consequence of which several supervisors had requested to be relieved of their duty. It also transpires from several reports that [the applicant] came into verbal conflict with the security guards of [the Home] where the contact sessions had been taking place ... [The applicant] himself frequently requested the reappointment of supervisors ... he lodged criminal ... and other complaints against them ... It should be stressed that it is neither credible nor logical that almost all of the supervisors (around ten of them) had treated him, as he claims, ‘maliciously, insolently and rudely and did not accept human differences’; instead, the foregoing points to the inappropriate behaviour of the applicant, who is unable to control himself even in front of the child, as soon as someone does not agree with his attitude, and he reacts violently, hastily and utterly inappropriately. He has also shown such behaviour at court hearings, where he even dismissed [his own] lawyers when he was dissatisfied with their representation ... Moreover, the utterly inappropriate, unforeseeable and unacceptable behaviour [of the applicant] was manifested in a number of threatening messages he sent to [various] supervisors and an expert ...
During the proceedings, the court obtained a multidisciplinary expert report ... [which examined] both parents as regards their parental competencies and whether it was in the best interests of the child for the contact sessions to take place in controlled conditions and under supervision, or under one of those conditions.
It transpires from the expert report that ... [the applicant] ... is ... impulsive and has difficulty maintaining self-control, has a reduced tendency to express emotions, and is superficial in approach. There are also certain characteristics of emotional immaturity present. In circumstances that are negative and frustrating for him, he reacts impulsively and aggressively, and does not consider his behaviour problematic. The developed behavioural model, the problem of self-control causing impulsive reactions, and the reduced control of his emotions in stressful situations could negatively affect the emotional development of the child. The experts consider [the applicant’s] full parental functioning limited in quality (in terms of both depth and content), which makes it necessary for the contact sessions with the child to be held in controlled conditions and under supervision. ...
The applicant objected to the expert opinion ... [and] sent [one of the experts] messages threatening her with criminal prosecution and assessing her expert opinion as ‘below any standard, below the bottom of any bottom’, and calls her scum ...
The experts ... stated that the child likes to play with [the applicant] when there is a contact session, but that the child feels a certain tension related to those sessions, caused by the conflicts between the father and the others, which are very frequent ...
The court has accepted the expert opinion as professional, clear and well-reasoned, and carried out in accordance with the rules of the medical profession. Given that the expert opinions undoubtedly conclude that [the mother] cares better for the child, recognises her interests and fully satisfies them, the court considers it in the child’s interest to continue living with the mother ...
...
Given that the contact sessions between [the applicant] and the child have been taking place under supervision for more than four years, and that there has been no progress, but instead the situation has worsened and escalated, and neither of the parties agrees with [continuing] the contact sessions in such a manner and with such dynamics, and in particular bearing in mind the protective measure issued by the Zagreb County Court on 6 November 2018 ..., this court considers that it is not in the child’s interest to continue contacts with the father, even under supervision and in controlled circumstances.
The court takes account ex officio of the best interests of the child, at the same time being mindful of the right and obligation of the parent living with the child to enable contact sessions with the parent with which the child does not live, as well as the right and obligation of the parent who is to enable contacts with the child, but without endangering the interests of the child.
It transpires from the statements by [the mother], the report of the centre and the expert opinions that, without any doubt, [the applicant’s] inability to control his emotions, rage and frustrations has a negative impact on the child, who is agitated after meeting with the father and shows aggressiveness and other negative reactions; therefore the court considers that until [the applicant] effectively corrects his negative behaviour through some sort of therapy (for instance the one proposed by the centre in its final opinion), it is not in the child’s best interests, even under controlled circumstances and under supervision, to be subject to such stress. This is even more true in view of the fact that in the last several years – since April 2016 – contacts were taking place under supervision and in controlled circumstances, and that such manner of conducting sessions did not have a positive effect on [the applicant’s] behaviour; on the contrary, [the applicant] is behaving worse than before, more frequently comes into conflict with the supervisors, the mother, security guards ... which resulted in criminal proceedings and the Zagreb County Court’s decision of 6 November 2018. Since the supervision measure did not yield any positive results, since it transpires from the expert report that the girl is biologically and genetically more sensitive, more impulsive and anxious, and [since] the father’s conflictual behaviour towards those around him during their contacts only amplifies the foregoing and may result in the girl becoming more susceptible to developing emotional or behavioural difficulties, the court considers that continuation of the [supervision] measure would not make any sense. If [the applicant] really wishes to have contact sessions with his daughter, he primarily has to ensure that he becomes aware of the fact that his behaviour is not appropriate or acceptable, and that it adversely affects his child, even when it is not directed at her, and he has to correct such behaviour or effectively control it.
In the concrete circumstances, the court considers that, despite the right of the parent to contact sessions with the child and the latter’s interest in forming an emotional bond with the [non-custodial] parent, relied on by [the applicant] throughout the proceedings, the interest of the child to develop in a calm environment without stress and exposure to conflicts caused by the father, which have a negative impact on her and her development, are prevailing. In view of all of the above, until [the applicant] changes his behaviour and does not lose self-control in stressful situations, it is not in the child’s interest to be exposed to such influences, and it is in her interest not to have contacts with her father. Personal relations between [the applicant] and his daughter can be maintained only through one letter, card or gift sent by the father once a month ...”
50. On appeal by both the applicant and V.K., on 5 June 2019 the Split County Court upheld the first-instance judgment.
51. In the meantime, on 5 March 2019 the competent State Attorney’s Office filed an indictment against the applicant for seriously threatening V.K., domestic violence and violation of the rights of B. The indictment was confirmed by the competent court, which on 6 May 2019 extended the precautionary measures against the applicant prohibiting him from approaching or establishing contact with V.K. or B. The criminal proceedings are still ongoing.
52. On 5 June 2019 the Constitutional Court (Ustavni sud Republike Hrvatske) found a violation of the applicant’s right to a hearing within a reasonable time and awarded him compensation in the amount of 9,500 Croatian kunas (HRK; approximately 1,300 euros (EUR)).Relevant domestic law
53. 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).
54. The relevant provisions of the Family Act in force at the material time have been cited in K.B. and Others v. Croatia (no. 36216/13, §§ 101‑05, 14 March 2017).
COMPLAINTS
55. The applicant complained that the proceedings concerning custody and his contact rights had lasted for an unreasonably long time, in breach of Article 6 § 1 of the Convention.
56. He also complained that the State had failed to ensure that he had regular contacts with his daughter during the custody proceedings, in breach of Article 8 of the Convention. He also claimed that he had no effective remedy to enforce his rights, contrary to Article 13.
THE LAWArticle 6 of the Convention
57. 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 ...”
58. The Government contested the applicant’s complaints, claiming that he himself had contributed to the excessive length of the proceedings.
59. Since it is a matter which goes to the Court’s jurisdiction and which it is not prevented from examining of its own motion (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 70, 5 July 2016), the Court will first examine whether the applicant can still claim to be a victim of the alleged violation of Article 6 § 1 of the Convention, considering that he had been awarded compensation for non-pecuniary damage in the amount of EUR 1,300 by the Constitutional Court.
60. The Court reiterates in this connection that a decision or measure favourable to an applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, for example, Cocchiarella v. Italy [GC], no. 64886/01, § 71, ECHR 2006-V; and Društvo za varstvo upnikov v. Slovenia (dec.), no. 66433/13, 21 November 2017).
61. The Court observes that the Constitutional Court expressly acknowledged that there had been a breach of the applicant’s right to a hearing within a reasonable time in the civil proceedings at issue (see paragraph 52 above). In the Court’s opinion, such an acknowledgment satisfies the first condition laid down in its case-law.
62. Turning to the second condition, the Court notes that the applicant was awarded approximately EUR 1,300 as compensation for the length of the civil proceedings, which lasted more than five years at two levels of jurisdiction (see paragraph 52 above).
63. In light of the criteria for redress for a breach of the right to a hearing within a reasonable time under its case-law (see Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 202-206 and 268, ECHR 2006‑V), the Court considers that the sum awarded to the applicant can be considered sufficient, and that it therefore constitutes appropriate redress for the violation suffered (see, for example, Komanicky v. Slovakia (dec.), no. 9845/06/14, § 11, 13 December 2011, and Društvo za varstvo upnikov, cited above, § 62). The applicant can thus no longer claim to be a “victim”, within the meaning of Article 34 of the Convention, of the alleged violation of his right to a hearing within a reasonable time.
64. It follows that this part of the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 thereof.Articles 8 and 13 of the Convention
65. The applicant complained that the State had failed to ensure that he had regular contacts with his daughter during the custody proceedings, and that he had no effective remedy in that respect. He relied on Articles 8 and 13 of the Convention, which read as follows:
Article 8
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
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.”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
66. The Court, as master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 114, 20 March 2018), considers that these complaints are closely linked and fall to be examined under Article 8 of the Convention.The parties’ arguments
(a) The Government
67. The Government submitted that the applicant could not claim to be a victim of a violation of Article 8, since he himself had been responsible for the fact that he had been unable to see B. for some six months between October 2015 and May 2016. Firstly, due to his conduct towards several social workers who had been in charge of supervising his contact sessions with B., the competent social welfare centre had been temporarily unable to find another person who would accept to deal with the case. While it is true that the court case file had been misplaced and had to be reconstructed during that time, the applicant had refused the judge’s proposal to adopt a fresh interim measure scheduling his contact sessions with B. in a controlled environment. Finally, during the impugned period, the applicant had been given the possibility of spending one hour per month with B. in her kindergarten, which he had also refused. In sum, the fact that a positive and warm relationship had been re-established between the applicant and his daughter following that period proved that there had been no alienation between them.
68. The Government further submitted that the applicant had failed to exhaust domestic remedies in that he had never appealed against any of the first three decisions on interim contact orders.
69. As regards the merits, the Government maintained that the State authorities had undertaken all available and appropriate steps in order to maintain the applicant’s contacts with his daughter. The competent social welfare centres had promptly got involved in the case, offering counselling to the parents and the child, making necessary proposals and issuing reports. They had appointed a number of social workers to supervise the applicant’s contact sessions with B., but the applicant had criticised them, threatened them and lodged unsubstantiated criminal complaints against many of them.
70. The competent court had adopted four interim contact orders, all in the best interests of the child, with a view to maintaining regular contacts between the applicant and B. However, communication between the parents had been very poor and the applicant’s aggressive behaviour towards a number of the social workers had made the authorities’ task more difficult.
(b) The applicant
71. The applicant denied that during the impugned period, contact sessions between him and B. had not taken place due to his behaviour. The competent welfare centre had been unable to organise the supervision of his contact sessions with B., a measure it had insisted on itself. He had the right to refuse measures he did not agree with and, in any event, seeing B. once a month for one hour in her kindergarten could not have replaced the scheduled contact sessions set out in the final court decision.
72. The applicant contended that the welfare centre had failed to respect the deadlines for various actions set out in the domestic law and, due to the authorities’ organisational failings, he had been prevented from seeing his daughter for a period of six months. He further stressed that he could not be blamed for challenging various decisions made by the domestic authorities and pointed out that the only relevant issue in this connection was not his conduct, but his parental capabilities, which had never been properly assessed. Indeed, any conflicts he may have had with third persons could not and should not have been a reason for limiting his right to contact with his daughter.The Court’s assessment
(a) General principles
73. The relevant principles regarding the State’s positive obligation under Article 8 of the Convention in cases concerning enforcement of contact rights are summarised in the cases of Ribić v. Croatia (no. 27148/12, §§ 88-89 and 92-95, 2 April 2015), and K.B. and Others v. Croatia (no. 36216/13, §§ 143-44, 14 March 2017).
74. The Court would stress that what is decisive in any assessment of the national authorities’ conduct in this type of case is whether they have taken all necessary steps to facilitate the contacts between a child and a parent that can reasonably be demanded in the specific circumstances of each case. The obligation of the national authorities to take measures to facilitate contact by a non-custodial parent with children after divorce or separation is not, however, absolute. It is an obligation of means, and not one of result. The establishment of contact may not be able to take place immediately, and may require preparatory or phased measures. The cooperation and understanding of all concerned will always be an important ingredient; lack of cooperation between separated parents is not a circumstance which can by itself exempt the authorities from their positive obligations under Article 8 (see Fernández Cabanillas v. Spain (dec.), no. 22731/11, §§ 47 and 50, 18 February 2014).
(b) Application to the present case
75. The Court observes at the outset that in his last correspondence with the Court received on 12 August 2019, the applicant for the first time raised a complaint in respect of the final decision of the domestic courts on the custody of B., in particular the fact that he was no longer allowed to see his daughter without undergoing appropriate treatment (see paragraph 49 above). However, since this complaint had not been raised with the Court at an earlier stage so as to allow the respondent Government to take a position, and as domestic remedies in respect of it have not been exhausted, the Court must limit itself to scrutinising the complaint as formulated in the application form. It will therefore examine whether the domestic authorities have taken all necessary steps that could reasonably be demanded in the given circumstances to enforce the applicant’s right to contact with his daughter and whether the alleged delays in the custody and contact proceedings led to a de facto determination of the matter at issue (see, for example, Z. v. Slovenia, no. 43155/05, §§ 149 and 157, 30 November 2010).
76. The Court notes that the relationship between the applicant and V.K. ended about six months after B. was born and that custody proceedings were instituted in September 2013. The relevant court issued four interim contact orders and the custody proceedings came to an end in June 2019. Despite their considerable length, for which the Court has already concluded that the applicant had been adequately compensated at domestic level (see paragraph 63 above), the Court observes that there were no substantial periods of inactivity on the part of the judicial and social welfare authorities. Rather, the facts of the case demonstrate considerable procedural activity by those authorities throughout the proceedings, with the court holding regular hearings and the social welfare authorities responding to the needs of the case (including issuing reports and appointing social workers for supervision of parental care measures) without undue delays. On the other hand, the applicant caused a number of procedural delays by repeatedly intimidating the social workers appointed to supervise his contacts with B., causing in total eleven different social workers to be relieved from that duty (see paragraphs 13, 20, 23, 39, 42 and 44 above). It is also significant that it took the applicant almost ten months to forward the costs for the multidisciplinary expert opinion, since he had insisted that it be obtained from an expert from a foreign country (see paragraph 32 above).
77. As regards the contacts between the applicant and B., the Court observes that these were in principle held regularly, save for one period between October 2015 and May 2016 when only sporadic contacts appear to have taken place (see paragraphs 23 and 33 above). The Government submitted that the competent social welfare centre had been unable to identify a social worker willing to take on the applicant’s case after he had intimidated and threatened three previous persons appointed to that duty. The applicant disagreed and claimed that, owing to their organisational shortcomings, the authorities had been unable to ensure effective implementation of a measure they themselves had proposed.
78. The Court has already recognised that the absence of contact with one’s child may cause considerable suffering to the parent (see Z. v. Slovenia, cited above, § 155). It also finds a period of six months without regular contacts regrettable. However, the said period cannot, in the Court’s view, be solely attributable to the authorities. Namely, it would appear that already at the hearing held on 22 December 2015 the centre proposed, as an interim solution, that contacts between the applicant and B. take place in a public institution, which the applicant refused (see paragraph 25 above). In January 2016 the centre reiterated its proposal and informed the court about the availability of one of its employees for the supervision of such contact sessions (see paragraph 27 above). However, the applicant opposed the centre’s proposal even at the hearing held on 8 April 2016, following which the competent court nonetheless adopted a decision to that end and the contacts eventually resumed (see paragraph 32 above).
79. The Court further notes that there is no indication in the case file that the relationship between the applicant and B. in any way deteriorated during the impugned six-month period, as they resumed their scheduled contacts in May 2016 without any difficulties (see paragraph 33 above). While it is true that the applicant was ultimately not granted custody of B., and was even prohibited from seeing her before seeking appropriate professional treatment, the Court observes that the reasons for such a decision were not a consequence of the period during which no contact sessions were held. Rather, that decision was made for very serious reasons related to the best interests of the child (see paragraph 49 above).
80. It cannot be said, therefore, that the lack of contact between the applicant and his daughter during the period in issue had irreparable consequences for their relationship (see, mutatis mutandis, Rukavina v. Croatia (dec.), no. 770/12, § 70, 6 January 2015). Nor can it be concluded that the length of the proceedings in the present case resulted in a de facto determination of the custody of the applicant’s daughter.
81. Having regard to the Court’s case-law on the matter (see Trdan and Ć. v. Slovenia, no. 28708/06, 7 December 2010), it follows from the foregoing that this complaint is inadmissible under Article 35 § 3 (a) of the Convention as manifestly ill-founded and must therefore be rejected pursuant to Article 35 § 4 thereof.
82. In view of this conclusion it is not necessary to examine the remaining inadmissibility objections raised by the Government (see paragraphs 67 and 68 above).
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 14 November 2019.
Renata DegenerTim Eicke
Deputy RegistrarPresident
Full & Egal Universal Law Academy