Communicated on 20 October 2020
Published on 9 November 2020
SECOND SECTION
Application no. 25384/18
X and Y
against Serbia
lodged on 24 May 2018
SUBJECT MATTER OF THE CASE
The applicants are a father and his minor son. The application concerns the fairness of custody proceedings, in which custody was given to the mother, and the alleged failure of the domestic authorities to protect the second applicant from domestic violence. In particular, it would appear that the custody decision was based solely on the medical expert findings submitted by the mother’s colleagues, while evidence of alleged domestic violence (medical reports and video footages) were not taken into account. The domestic courts allegedly failed to consider the first applicant’s motion filed in that regard. On 21 December 2017 the Constitutional Court found that the domestic courts had violated the first applicant’s procedural rights for failing to decide on his motion, but that that failure could not have affected the regularity and legality of their judgment. Moreover, the Constitutional Court rejected the appeal lodged by the first applicant on behalf of his son (concerning the alleged domestic violence) as incompatible ratione personae since he did not have custody and could not have acted as his son’s legal representative.
The applicants invoke Articles 3, 6 and 8 of the Convention in relation to the fairness of custody proceedings and the alleged failure of the domestic authorities to protect the second applicant from domestic violence.
QUESTIONS TO THE PARTIES
1. Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?
2. Did the first applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, was the principle of equality of arms respected as regards the neutrality of court-appointed expert commission (see Letinčić v. Croatia, no. 7183/11, 3 May 2016)?
3. Has the second applicant been subjected to inhuman or degrading treatment or punishment, in breach of Article 3 of the Convention? In particular, have the authorities failed to respect their (procedural) obligation to conduct an effective official investigation where an individual raises an arguable claim of ill-treatment (see M. and M. v. Croatia, no. 10161/13, ECHR 2015 (extracts))?
4. Has there been a violation of the second applicant’s right to respect for his private life, contrary to Article 8 of the Convention? In particular have the domestic authorities taken reasonable steps to prevent ill-treatment of which they had or ought to have had knowledge (see Z and Others v. the United Kingdom [GC], no. 29392/95, ECHR 2001‑V)?
5. Has there been a violation of the applicants’ right to respect for their family life contrary to Article 8 of the Convention? In particular, when deciding on the granting of custody of the second applicant was the decision-making process sufficiently thorough (see Petrov and X v. Russia, no. 23608/16, §, 23 October 2018)?
Full & Egal Universal Law Academy