FIRST SECTION
DECISION
Application no. 6403/07
by Kristina SEVERIN
against Croatia
The European Court of Human Rights (First Section), sitting on 24 April 2008 as a Chamber composed of:
Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Giorgio Malinverni,
George Nicolaou, judges,
and André Wampach, Deputy Section Registrar,
Having regard to the above application lodged on 18 January 2007,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the formal declarations accepting a friendly settlement of the case,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,
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
The applicant, Mrs Kristina Severin, is a Croatian national who was born in 1978 and lives in Solin. She was represented before the Court by Mrs I. Bojić, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 7 August 1998 the applicant gave birth to a daughter, K.S. On 14 February 2001 the applicant married the child’s father, M.S. On 28 April 2005 the applicant, along with K.S., left her husband and moved to Solin.
On 30 June 2005 the Split Welfare Centre (Centar za socijalnu skrb Split; “the Split Centre”) issued a decision awarding the applicant custody of K.S. and allowing M.S. bimonthly visits. On 12 March 2006 M.S. refused to return the child to the applicant. On the following day, the applicant applied to the Split Centre for enforcement of its decision of 30 June 2005 and for K.S. to be returned to her. However, the attempts to return the child to the applicant remained unsuccessful.
In 2005 M.S. filed a request for the re-examination of the custody of K.S. On 28 June 2006 the Solin Municipal Court (Općinski sud u Solinu) decided that K.S. was to live with her mother. On 5 October 2006 the Split County Court quashed the first-instance decision and remitted the case. In the fresh proceedings the Municipal Court awarded the custody of K.S. to her father while the applicant was to see her every second weekend from 8 a.m. on Saturday to 8 p.m. on Sunday, half of her winter and summer school holidays, either Christmas or New Year’s holidays as well as the Easter holidays every second year. The Court heard the parties, K.S. and the relevant experts and found that K.S. had an established life in Zagreb where she attended school, had a lot of friends and regularly saw a psychiatrist. Her father provided adequate living conditions and good care of her, responding promptly to all her difficulties. Furthermore, K.S. expressed a wish to continue living in Zagreb with her father instead of moving to Solin to live with her mother and the mother’s new family. The decision was upheld by the Split County Court (Županijski sud u Splitu) on 8 January 2008 and thus became final.
COMPLAINTS
The applicant complained under Article 6 § 1 of the Convention about the non-enforcement of the Split Centre’s decision of 30 June 2005.
The applicant further complained that, in failing to enforce the above decision and reunite her with her child, the competent authorities had failed to fulfil their positive obligation to protect her family life in breach of Article 8 of the Convention.
THE LAW
On 23 January 2008 the Court received the following declaration signed by the applicant’s representative:
“I note that the Government of Croatia are prepared to pay ex gratia the sum of 7,500 euros to Ms Kristina Severin with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be converted into national currency at the rate applicable on the date of payment, and free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
I accept the proposal and waive any further claims against Croatia in respect of the facts giving rise to this application. I declare that this constitutes a final resolution of the case.”
On 21 February 2008 the Court received the following declaration from the Government, signed by their Agent:
““I, declare that the Government of Croatia offer to pay ex gratia 7,500 euros to Ms Kristina Severin with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be converted into the national currency at the rate applicable on the date of payment, and free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.”
In her letter of 12 March 2008 the applicant submitted that by a final court’s decision her visiting rights had been established and that it remained to be seen that the domestic authorities ensured her visiting rights in respect of her daughter. She reserved therefore her position on any possible future issues under the Convention in that respect and reiterated her agreement to settle the case as to the facts occurred hitherto.
The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no public policy reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). In view of the above, it is appropriate to discontinue the application of Article 29 § 3 and to strike the case out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
André WampachChristos Rozakis
Deputy RegistrarPresident
Full & Egal Universal Law Academy