Communicated on 14 January 2014
SECOND SECTION
Application no. 7833/12
Saša POPADIĆ
against Serbia
lodged on 26 December 2011
STATEMENT OF FACTS
1. The applicant, Mr Saša Popadić, is a Serbian national, who was born in 1973 and lives in Novi Sad. He is represented before the Court by Mr M. Dragićević, a lawyer practising in Subotica.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background to the case
3. In February 2003 a son, S.P., was born to the applicant and his wife, N.J. The family lived together in Kruševac until November 2004, when the applicant moved to his parents’ house in his home town Novi Sad, at a distance of approximately 300 km from Kruševac. S.P. remained living with his mother.
4. The applicant and N.J. established a pattern of contact between the applicant and their son once a week for several hours, but could not reach an agreement on any overnight stay either in Kruševac or Novi Sad. It would appear that in February 2005 the applicant asked the Kruševac Centre for Social Work to adopt an interim measure in respect of his access rights.
2. Matrimonial proceedings, together with the relevant interim orders
5. On 8 March 2005 the applicant brought a civil action in the Kruševac Municipal Court, seeking the dissolution of his marriage and extensive access rights in respect of his son. He explicitly acknowledged that it would be better for S.P. to remain living with his mother in view of his very young age and he also offered to pay child maintenance. He further stated that he was seeing the child for several hours every weekend in Kruševac as agreed between him and N.J. (“the respondent”). However, as the respondent had forbidden the child’s travelling to Novi Sad, the applicant requested the court to allow him (i) to take the child on the first weekend of every month to Novi Sad to be also with his grandparents, (ii) to have access to the child in Kruševac one day during the three remaining weekends, and (iii) to spend 15 days of the summer and winter holidays together.
6. On 19 April 2005 the court sent the civil claim for response. In her written response of 23 May 2005, the respondent contested only the applicant’s extensive access rights.
7. On 22 September and 14 October 2005 the attempts at mediation between the parties and the settlement of the case failed.
8. At the hearing of 7 November 2005, the court requested an expert opinion on the impugned access rights. In her report of 29 December 2005, and at the hearing on 31 May 2006, a clinical psychologist, S.B., noted the applicant’s high motivation and capacities to have frequent and quality contact with his son. She further observed that their contact had never been interrupted, that their frequent meetings had been going very smoothly without any kind of separation crisis and that the emotional ties had been developed. On the other hand, the mother was the main carer, the child had a very strong emotional and social bond with her, as well as sleeping and other habits. In view of the latter and the child’s young age, the psychologist advised very frequent whole-day contact between the applicant and the child, but only sporadic overnight stays of a maximum of two consecutive days and not far from the child’s residence due to a possible separation crisis in the event of a longer separation from his mother. Lastly, she stated that a decision on the applicant’s more extensive access rights might be deemed opportune after a year of such an adaptation regime, given that a child should be gradually separated from her/his mother more often as of the third year.
9. On 23 January 2006 the applicant asked that the expert S.B. be heard in court. At the hearing of 13 February 2006, the court invited the applicant to specify his child access claim and the respondent to submit in writing her complaints concerning the expert’s report, if any.
10. The two hearings fixed for 24 March and 19 April 2006 were adjourned respectively due to the presiding judge’s other commitments and the expert’s unavailability.
11. On 31 May 2006, after hearing the parties and the expert S.B., the court decided, upon the respondent’s request, to request another expert’s report.
12. The hearings fixed for 20 June and 24 July 2006 were adjourned for procedural reasons.
13. In the meantime, in a report of 18 July 2006, a child neurologist R.R. was against any overnight contact, either in Kruševac or Novi Sad. She recommended that the child spend several hours with the applicant during a day each weekend. In a general analysis of child/parent relationships, she did not advise any pressure on a child under six to be separated from the mother overnight, save if the child indeed wished and requested so.
14. At the hearing of 16 August 2006, the court ordered the two experts to try to harmonise their respective findings within ten days. They did so on 5 October 2006, recommending that the contact commence with day visits of nine hours three Saturdays a month. On 18 October 2006, the applicant requested an additional expert report to be provided by the Mental Health Institute. The court appears not to have decided on this request.
15. In the meantime, the applicant requested an interim order in respect of his access rights, including his request to spend the first weekend of every month with the child in Novi Sad. On 1 September 2006 the court ordered that the applicant should have access to his son in Kruševac for ten hours on Saturdays. It further stated that it could not decide by an interim order on the applicant’s request to bring the child to Novi Sad, given that this aspect of the applicant’s access rights was precisely the subject-matter of the main proceedings. Following the applicant’s appeal of 18 September, on 14 November 2006 the District Court quashed the part rejecting the interim order and instructed the court to give a decision in that respect.
16. The hearing fixed for 24 January 2007 was adjourned as none of the parties appeared in court.
17. On 7 February 2007 the court heard the parties and closed the hearing. On 20 March it reopened the hearing and requested the Novi Sad and Kruševac Centres for Social Work respectively to submit their opinions on the applicant’s access rights by a hearing scheduled for 9 May 2007. The court received the reports on 9 and 29 May 2007 respectively. Both reports recommended, noting the applicant’s high motivation, responsibility and competence, as well as mutual positive affection, that the applicant should be allowed to spend full weekends and a part of the holidays with his son in Kruševac and/or Novi Sad.
18. On 13 June 2007 the Municipal Court dissolved the marriage between the applicant and the respondent, awarded sole custody of the son to the respondent (poverio decu na negu, staranje i vaspitavanje majci), specified the applicant’s access rights and ordered him to pay child maintenance. As regards the access rights, the court decided that the applicant should be allowed to take his son on the first weekend of each month to Novi Sad, to spend the second weekend with him in Kruševac and to see him for several hours on the fourth Sunday. The court rejected the applicant’s claim for contact during the holiday period, without providing further explanation.
19. On 4 October 2007 the District Court quashed the part of the judgment concerning the holiday contact as well as the costs and expenses, decreased the amount to be given on account of child maintenance and upheld the remainder. On the holiday contact, the court noted that the court of first instance had failed to establish and assess the relevant facts and that the appeals court could not therefore assess the application of the law in such a situation. It also instructed the court of first-instance to request an additional expert’s report in view of the applicant’s capacities, his successful contact with the child and also that the adaptation period of one year had passed (see paragraph 8 above). In compliance with the instruction made by the District Court, on 18 October 2007 the court ordered the Kruševac Centre for Social Work to submit an additional report.
20. On 31 October 2007 the applicant sought an interim order in respect of his contact with the son during the forthcoming winter holiday.
21. On 24 December 2007 the Social Centre opined that the applicant should have access to his son during the summer and winter holidays.
22. On 26 December 2007 the Municipal Court refused the applicant’s request for an interim order. It found that there would be no irreparable damage to the applicant and his son if they did not spend the winter holiday together in view of the award of general access rights to the applicant by the first-instance judgment. The court then sent the case-file to the Supreme Court, which was to examine the respondent’s appeal on points of law concerning the endorsed and reversed part of the judgment of 4 October 2007 (see paragraphs 18 and 19 above).
23. On 25 February 2008 the applicant appealed against the refusal of the interim order and also, in view of the delayed decision on his request concerning the winter holiday, sought to spend 15 days of the summer holiday with his son.
24. On 23 May 2008 the District Court quashed the decision of 26 December 2007, because the lower court had given a vague statement instead of assessing the evidence before it and providing proper reasoning. Such a failure amounted to a grave breach of procedure and prevented the higher court from examining the relevant legal issues. The District Court also reminded the court of first instance that, instead of deciding on the request for an interim order, it could right away decide on the merits of the main case, given that it had taken all evidence necessary for it.
25. On 27 June 2008 the applicant informed the Municipal Court that he had not been served with the second-instance decision, but that he had heard about its outcome. He reiterated his request for an interim order in respect of the forthcoming summer holiday.
26. On 7 July 2008 the court granted the applicant a right to spend the last ten days of the summer holidays with his son.
27. On 12 December 2008 the Municipal Court received the main case‑file from the Supreme Court, together with its decision rejecting the respondent’s appeal on points of law (see paragraph 22 above).
28. On 24 December 2008 the applicant asked the court to allow him access to his son between 24 January and 2 February 2009. On 13 January 2009 the Municipal Court granted the interim order as sought.
29. On 3 February 2009, after the parties had reached an agreement, the court rendered a decision that the applicant was allowed to spend with his son the second day of the latter’s birthdays, the applicant’s religious holiday (slava), 10 days during the winter holidays after Christmas, 15 days of the summer holidays and New Year’s Eves.
30. Following the applicant’s complaint about the costs, on 30 April 2009 the District Court upheld the first-instance judgment. This decision was served on the applicant on 29 August 2009.
31. On 5 November 2009 the Supreme Court dismissed the applicant’s appeal on points of law concerning the costs as not being available. This decision was served on the applicant on 26 February 2010.
3. Constitutional avenue
32. In his constitutional appeal of 23 June 2009, as amended on 14 June 2011, the applicant complained that the protracted proceedings, involving an inert court, had deprived him of overnight contact with his son for two and a half years and the holidays for almost four years.
33. On 2 November 2011 the Constitutional Court rejected the applicant’s appeal. It found that (i) the case was particularly complex, as it had required a decision on several matrimonial issues and three experts’ reports to be provided for that purpose; (ii) the applicant had contributed to the delay to an extent by failing to appear at the hearing of January 2007 and also by lodging an appeal on points of law which was not available (see paragraphs 16 and 31 above); and (iii) the domestic courts had regularly scheduled the hearings and the fact that it had taken two years and seven months for the domestic courts to give a judgment at first instance, or four and a half years to terminate the proceedings did not raise any issue.
B. Relevant domestic law
34. Under Article 204 of the Family Act (Porodični zakon; published in OG RS no. 18/05), all family-related disputes involving children must be resolved urgently. The first hearing must be scheduled within 15 days of the date when the claim was filed. First instance courts should conclude the proceedings following no more than two hearings, and second instance courts must decide on appeals within a period of 30 days.
35. Similarly, Article 280 of the same Act defines all maintenance suits as “particularly urgent”. The first hearing must be scheduled within 8 days of the date when the claim was filed and the second instance courts must decide on appeals within 15 days.
COMPLAINTS
The applicant complains under Article 6 of the Convention about (a) the excessive length of the proceedings in question, and (b) the lack of diligence on the side of the judicial authorities in the course of these proceedings, which prevented him for several years from having overnight and holiday contact with his son and, therefore, from having, as a non-resident parent, extended and more quality time with him.
QUESTIONS TO THE PARTIES
1. Has there been a violation of Article 6 § 1 of the Convention? In particular, was the length of the proceedings concerning the matrimonial dispute in the present case excessive and, as such, in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?
2. Has there been a violation of Article 8 of the Convention? In particular, did the delays in having the applicant’s access rights decided amount to a lack of respect for his family life within the meaning of Article 8 of the Convention?
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