FIRST SECTION

DECISION

Application no . 770/12 Slaven RUKAVINA against Croatia

The European Court of Human Rights ( First Section ), sitting on 6 January 2015 as a Chamber composed of:

Isabelle Berro , President, Elisabeth Steiner , Khanlar Hajiyev , Mirjana Lazarova Trajkovska , Linos-Alexandre Sicilianos , Ksenija Turković , Dmitry Dedo v , judges, and Søren Nielsen , Section Registrar ,

Having regard to the above application lodged on 17 December 2011 ,

Having regard to the observations submitted by the respondent Government,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Slaven Rukavina , is a Croatian national who was born in 1964 and lives in Zagreb .

2. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik .

A. The circumstances of the case

4. On 7 July 2007 the applicant married a certain Ms S.L.

5. On 22 August 2007 S.L. gave birth to their daughter L.R.

6 . On 4 May 2009 S.L., accusing the applicant of domestic violence, left the matrimonial home and moved to a safe house. In so doing she took their daughter with her.

1. Civil proceedings for divorce and child custody

7 . On 10 June 2009 S.L. brought a civil action against the applicant in the Sesvete Municipal Court ( Općinski sud u Sesvetama ) seeking a divorce and custody of their daughter.

8 . After a hearing held in the presence of the parties and the representative of the Sesvete Social Welfare Centre ( Centar za socijalnu skrb Sesvete ), o n 18 June 2009 the Municipal Court issued a decision whereby it regulated interim custody and access rights until the adoption of the final judgment on S.L. ’ s action. In particular, the court temporarily awarded custody to S.L. and granted the applicant access righ ts, allowing him to have contact with his daughter twice a month for three hours o n the premises of the association Children First . The applicant appealed.

9. On 5 October 2009 the Municipal Court held a hearing at which the applicant did not oppose the divorce but asked the court to award him custody of his daughter. At the same hearing the court decided to refer the parties to mandatory mediation procedure, in accordance with the law. Specifically, the parties were referred to the Sesvete Social Welfare Centre. for the institution of this procedure.

10. After completing the mediation procedure, on 14 December 2009 the Centre submitted its report to the court suggesting that reconciliation of the parties was not possible and stating that they could not agree over custody of and contact with their daughter.

11. At the hearing held on 27 January 2010 the court heard the parties and invited the Sesvete Social Welfare Centre to submit its recommendation as regards custody of the applicant ’ s daughter and the (extent of) access rights of the non-custodial parent.

12 . O n 2 March 2010 the Zagreb County Court ( Županijski sud u Zagrebu ) quashed the first-instance decision of 18 June 2009 (see paragraph 8 above) and remitted the case to the first-instance court , holding that the latter had not provided sufficient reasons for its decision. In particular, the County Court found that no reasons had been given for the interim award of custody to S.L. and saw no rea son why the applicant ’ s contact with his daughter had to be supervised.

13. In the resumed proceedings, on 19 April 2010 the Sesvete Social Welfare Centre informed the court that it could not make the requested recommendation (see paragraph 11 above) and that, in any event, because S.L. had changed the address, the matter was no longer in their competence but fell within the competence of the Trešnjevka Social Welfare Centre . It nevertheless recommended that both parties undergo psychiatric assessment.

14. On 28 April 2010 the Municipal Court invited the Trešnjevka Social Welfare Centre (hereinafter: “the local social welfare centre” or “the Centre”) to submit its recommendation as regards (the extent of) the applicant ’ s access rights and the manner in which they should be exercised.

15. On 6 May 2010 the Centre recommended that the applicant exercise his access rights under supervision every Wednesday from 5 to 7 p.m. on the premises of another association. The Centre explained that supervision was necessary because criminal proceedings for domestic violence were pending against the applicant (see paragraphs 43-46 below) and because psychiatric assessment of both parents was necessary.

16. At the hearing held on 11 May 2010 the applicant proposed that he be awarded custody or, in the alternative, that he be granted access rights to be exercised without supervision in his home for three hours twice per week, every other weekend, and half of all holidays.

17. A t the hearing held on 11 June 2010 the parties agreed that t he applicant would have contact with his daughter twice a week for two hours under supervision .

18. On 14 June 2010 the court decided to obtain a joint expert opinion from experts in psychology and psychiatry.

19. At the hearing held on 8 September 2010 the applicant proposed that his access rights be extended from two to four hours per week and also that he should have contact with his daughter every other weekend.

20. On 18 November 2010 the experts in psychology and psychiatry submitted their joint opinion. They recommended that custody be awarded to S.L. and that the applicant have contact with his daughter four times a week for two and a half hours and for two and a half hours on official holidays and other important days (birthdays, etc.), all under supervision.

21. On 9 December 2010 the local social welfare centre submitted its observations on the expert opinion, criticising the contact schedule proposed by the experts as unworkable. It also added that the experts had failed to explain why the applicant should exercise his access rights under supervision.

22. At the hearing held on 14 December 2010 the applicant objected to the expert opinion in so far as it recommended awarding custody to S.L. and supervised contact with his daughter. He also submitted an opinion obtained from another expert in psychology.

23. On the same day the Municipal Court issued a fresh decision regulating interim custody and access rights. In particular, the court again temporarily awarded custody to S.L. and granted the applicant access right s entitling him to have contact with his daughter twice a week (on Tuesdays and Thursdays from 4 to 6.30 p.m.) under supervision. The applicant appealed.

24. At the hearing held on 14 January 2011 the court heard the expert in psychiatry who had prepared the aforementioned joint expert opinion of 18 November 2010 (see paragraph 20 above).

25. O n 1 February 2011 the Zagreb County Court quashed the first-instance decision of 14 December 2010 (see paragraph 23 above) and remitted the case.

26. In the resumed proceedings, on 9 March 2011 the Sesvete Municipal Court issued another decision regulating interim custody and access rights , the content of which was identical to its decision of 14 December 2010 (see paragraph 23 above) . The applicant appealed.

27. On 14 March 2011 the applicant requested the withdrawal of the first-instance single judge sitting in the case. The hearing scheduled for 22 March 2011 was therefore adjourned until the Zagreb County Court decided on the applicant ’ s withdrawal request. On 13 May 2011 that court dismissed the applicant ’ s request.

28. On 7 July 2011 a multidisciplinary team of experts composed of a psychologist, a psychiatrist, a paediatrician and a social worker submitted their report on the physical and mental health of the applicant ’ s daughter, finding that she was healthy but that her mother ’ s insistence on a vegan diet posed a risk as regards her normal psychophysical development. The report was obtained at the request of the local social welfare centre in response to the applicant ’ s allegations that S.L. had been emotionally abusing their daughter and endangering her health by subjecting her to a vegan diet.

29. O n 13 September 2011 the Zagreb County Court quashed the first-instance decision of 9 March 2011 (see paragraph 26 above) and remitted the case. It again held that the first-instance decision had not been sufficiently reasoned.

30. In the resumed proceedings, the hearing scheduled for 14 November 2011 was adjourned owing to the absence of the judge sitting in the case.

31. O n 25 November 2011 the Sesvete Municipal Court issued a new decision regulating interim custody and access rights in a manner identical to its two previous decisions (see paragraphs 23 and 26 above) .

32 . At the hearing held on 19 December 2011 the court, in accordance with the applicant ’ s proposal ‒ with which the representative of the local social welfare centre agreed ‒ decided to obtain an expert opinion from another expert on the issue of the custody of the applicant ’ s daughter and her contact with the non-custodial parent.

33. On 31 January 2012 the Zagreb County Court, following an appeal by the applicant, again quashed the first-instance decision of 25 November 2011 (see paragraph 31 above) and remitted the case.

34. O n 26 March 2012 the Municipal Court held a hearing at which it heard the parties and a representative of the local social welfare centre.

35. At the same hearing the Municipal Court issued yet another decision regulating interim custody and access rights in respect of the applicant ’ s daughter but in a manner different from its three previous decisions (see paragraphs 23, 26 and 31 above) . The court firstly, as it had done before, temporarily awarded custody of the applicant ’ s daughter to her mother S.L. Secondly, for the period between 28 March and 31 May 2012, the court granted the applicant access rights allowing him to have contact with his daughter twice a week (on Tuesdays and Thursdays from 4 to 6.30 p.m.) under the supervision of an employee of the social welfare centre, a nd also without supervision every Friday from 3 to 8.30 p.m. and during the weekends of 20-22 April, 4-6 May and 18-20 May 2012. Both parties appealed against that decision

36. At the next hearing held on 31 May 2012 the Municipal Court issued a new decision regulating the applicant ’ s access rights on an interim basis . The court granted the applicant access rights twice a week (on Tuesdays and Thursdays from 4 to 6.30 p.m.) under the supervision of an employee of the social welfare centre, as well as without supervision every other weekend from 3 p.m. on Friday until 7 p.m. on Sunday The applicant appealed.

37. On 4 June 2012 the Municipal Court received the combined expert opinion of a psychiatrist, a psychologist and a defectologist . The experts recommended that the applicant be awarded custody of his daughter and that the mother be granted extensive access rights.

38. On 11 September 2012 the Zagreb County Court quashed the first-instance decisions of 26 March and 31 May 2012 (see paragraphs 35-36 above) and remitted the case.

39. In the resumed proceedings, at a hearing held on 12 October 2012 the Sesvete Municipal Court heard the experts in psychiatry and psychology who had prepared the expert opinion of 4 June 2012 (see paragraph 37 above). After hearing the experts, the representative of the local social welfare centre agreed with their recommendation and suggested that the court award custody to the applicant while granting the mother extensive access rights.

40. By a judgment of 25 October 2012 the Sesvete Municipal Court definitively awarded the applicant custody of his daughter and granted S.L. access rights to be exercised every Tuesday and Thursday from 3 to 7 p.m., every other weekend from Friday 3 p.m. to Sunday 6 p.m., every other public holiday from 10 a.m. to 7 p.m. and for half of the winter, summer and spring holidays. At the same time the court issued a decision regulating interim custody and access rights in the same way as stipulated in its judgment until such time as that judgment became final.

41. On 9 November 2012 S.L. appealed against that judgment.

42. By a judgment of 19 February 2013 the Zagreb County Court dismissed the appeal and upheld the first-instance judgment, which thereby became final.

2. Other relevant proceedings

(a) Criminal proceedings against the applicant for domestic violence

43. In 2009 the Sesvete State Attorney ’ s Office ( Općinsko državno odvjetništvo u Sesvetama ) indicted the applicant before the Sesvete Municipal Court for the criminal offence of domestic violence allegedly committed against S.L. in the period between October 2006 and May 2009.

44. By a judgment of 13 May 2011 the Sesvete Municipal Court acquitted the applicant. It found that he had not committed the acts of violence with which he had been charged. In its judgment that court al so stated that the criminal proceedings against the applicant had been instrumental in the dispute over custody of his daughter and that S.L. had used those proceedings in order to portray the applicant as a violent person and inadequate father, unworthy of that role, and thus prevent him from maintaining contact with his daughter.

45. Following an appeal by the State Attorney , on 5 July 2012 the Bjelovar County Court ( Županijski sud u Bjelovaru ), quashed the first-instance judgment and remitted the case.

46. It would appear that the proceedings are currently pending before the Sesvete Municipal Court as the first-instance court.

(b) Criminal proceedings against the applicant for defamation

47. In 2010 S.L. brought a private bill of indictment ( privatna tužba ) against the applicant in the Sesvete Municipal Court accusing him of defamation. In particular, S.L. alleged that in his numerous statements to the media , the applicant h ad depicted her as mentally ill, a person with whom “something was wrong”, a fanatic and a proponent of eco-feminism.

48. T he Sesvete Municipal Court convicted the applicant, on 22 November 2011 , but the judgment was subsequently quashed by the second-instance court following his appeal and the case was remitted.

49 . In the resumed proceedings, on 3 September 2013 the Sesvete Municipal Court acquitted the applicant, that judgment being upheld by the Rijeka County Court on 8 January 2014.

COMPLAINTS

50 . The applicant complained under Article 8 of the Convention that in the above civil proceedings for divorce and custody the domestic courts had not acted expeditiously and that during those proceedings the first-instance court had repeatedly awarded interim custody of his daughter to his former wife and ordered that all or some of his contact visits with his daughter be supervised.

51. The applicant further complained under Article 14 of the Convention that he had been discriminated against on grounds of his sex.

52. He also complained under Article 10 of the Convention about his criminal conviction for defamation.

53. In addition, the applicant complained under Article 6 § 1 of the Convention about the unfairness of the above civil proceedings for divorce and child custody.

54. He also complained under Article 13, in conjunction with Article 8 of the Convention, that he had not had an effective remedy for complaining about the violation of his right to respect for his family life, that is, a remedy that would have prevented successive remittals of the case.

55. Lastly, the applicant also invoked Articles 3, 4, 5 and 17 of the Convention without further specifying these complaints.

THE LAW

A . Alleged violation of Article 8 of the Convention

56. The applicant complained that the domestic courts in the above civil proceedings for divorce and custody had violated his right to respect for his family life in that they: (a) had taken more than three and a half years to deliver the final judgment awarding custody of his daughter, (b) had repeatedly awarded interim custody of his daughter to her mother even though she had been acting to her detriment by, for example, keeping her on a vegan diet, (c) had repeatedly ordered that all or some contact visits with his daughter be supervised, which had infringed the privacy of his family relations. He relied on Article 8 of the Convention, the relevant part of which read s :

“1. Everyone has the right to respect for his ... family life .

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.”

57. The Government disputed the admissibility of this complaint on three grounds. They argued that the applicant had failed to exhaust domestic remedies, that he was not a victim of the violation complained of and that, in any event, the complaint was manifestly ill-founded.

1. The arguments of the parties

58 . The Government first argued that the applicant could have lodged a request for protection of the right to a hearing within a reasonable time, a remedy that the Court had recognised as effective in respect of length-of-proceedings complaints against Croatia. However, he had not done so and thus had failed to exhaust domestic remedies.

59 . They further submitted that the applicant could not be considered a victim of the violation complained of because during the impugned proceedings, in which he had eventually been granted custody of his daughter, he had maintained regular contact with her and had been living with her since November 2012 (see paragraph 40 above).

60 . The Government also noted that the proceedings complained of had lasted three years and eight months before two levels of jurisdiction, making the present case similar to the cases of Trdan and Ć. v. Slovenia ( no. 28708/06 , 7 December 2010 ) and Z. v. Slovenia ( no. 43155/05 , 30 November 2010 ), in which the impugned custody proceedings had lasted three years and ten months and three years and five months, respectively, also before two levels of jurisdiction. In those cases the Court had found no violation of Article 8 of the Convention. The Government added that the proceedings in the present case had been very complex and sensitive, that by their conduct the parties had significantly contributed to the length thereof and that there had been no significant delays attributable to the domestic authorities.

61. The applicant did not submit any observations in reply to those of the Government.

2 . The Court ’ s assessment

(a) Preliminary remarks

62. The Court notes that the applicant complained not only about the length of the custody proceedings, which eventually ended in his favour, but also about the interim custody and contact decisions adopted during those proceedings, whereby custody of his daughter was repeatedly conferred on his former wife and it was ordered that his contact with his daughter be supervised. However, the Court also notes that none of those interim custody and contact decisions, though immediately enforceable, ever became final, since they were all quashed by the second-instance court upon appeals by the applicant. Furthermore, even if those interim decisions had become final, they would have in any event been superseded by the definitive judgment on custody and access rights. Therefore, the main issue in the present case is the length of the custody proceedings. The applicant ’ s remaining complaints under Article 8 of the Convention, namely those concerning interim custody and contact decisions, are to be considered absorbed by his main complaint.

(b) Relevant principles

63. The Court reiterates that the mutual enjoyment by parent and child of each other ’ s company constitutes a fundamental element of “family life” within the meaning of Article 8 of the Convention (see, among other authorities, Olsson v. Sweden (no. 1) , 24 March 1988, § 59 , S eries A no. 130 , and Gluhaković v. Croatia , no. 21188/09 , § 54 , 12 April 2011 ).

64 . E ven though the primary object of Article 8 is to protect the individual against arbitrary action by public authorities, there are, in addition, positive obligations inherent in effective “respect” for family life (see, among other authorities, Marckx v. Belgium , 13 June 1979, § 31 , Series A no. 31 , and Gluhaković , cited above , § 55). Furthermore, even though Article 8 contains no explicit procedural requirements, the decision-making process must be fair and of a kind that afford s due respect to the interests safeguarded by Article 8 (see Buscemi v. Italy , no. 29569/95, § 58 , ECHR 1999 ‑ VI ; and T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 72 , ECHR 2001 ‑ V (extracts) ) .

65. Given that an effective respect for family life requires that future relations between parent and child be determined solely in the light of all the relevant considerations and not by the mere passage of time (see Diamante and Pelliccioni v. San Marino , no. 32250/08 , § 177, 27 September 2011 ), the i neffective, and in particular delayed, conduct of custody proceedings may give rise to a breach of positive obligations under Article 8 of the Convention (see Eberhard and M. v. Slovenia , no. 8673/05 and 9733/05 , § 127, 1 December 2009 , and S.I. v. Slovenia , no. 45082/05 , § 69 , 13 October 2011 ) as procedural delay may lead to a de facto determ ination of the matter at issue (see H. v. the United Kingdom , 8 July 1987, § 89 , Series A no. 120 ). Therefore, i n cases concerning a person ’ s relationship with his or her child there is a duty to exercise exceptional diligence in view of the risk that the passage of time may result in a de facto determination of the matter. This duty, which is decisive in assessing whether a case ha s been heard within a reasonable time as required by Article 6 § 1 of the Convention, also forms part of the procedural requirements implicit in Article 8 (see, for example, Süß v. Germany , no. 40324/98, § 100 , 10 November 2005 , and Strömblad v. Sweden , no. 3684/07 , § 80 , 5 April 2012 ).

66. Therefore, in cases such as the present one the Court ’ s task consists in examining whether , having due regard to the complexity of the case and the conduct of the domestic authorities, the alleged delays in custody proceedings led to a de facto determination of the matter at issue .

(c) Application of the above principles to the present case

67. T he Court first notes that the impugned proceedings lasted three years and eight months and two levels of jurisdiction were involved. During this period the domestic courts examined the principal issue of custody and contact and ruled on the interim custody and contact arrangements .

68. The Court observes that there were no substantial periods of inactivity on the part of the judicial and social authorities. Rather, the facts of the case demonstrate considerable procedural activity by those authorities throughout the proceedings . In particular, except for the summer periods, no two-month period passed without a decision being taken or a hearing being held. In all, the domestic courts held eleven hearings, obtained three expert reports and delivered thirteen decisions (seven by the first-instance court and six by the second-instance court) . Only two hearings were adjourned: one owing to the applicant ’ s request for withdrawal of the judge (see paragraph 27 above) and the other due to the absence of the judge sitting in the case (see paragraph 30 above).

69 . The Court further notes that the domestic courts were faced with a difficult task when deciding to which parent they should award custody of the applicant ’ s daughter. That is illustrated by the fact that the opinion of the social welfare centre in that regard evolved over time (see paragraphs 15, 21 and 39 above) and the views of the various experts differed on that issue (see paragraphs 20 and 37 above). T he Court therefore finds that the case must be regarded as complex and sensitive, which certainly contributed to the duration of the proceedings (see Z. v. Slovenia , cited above, § 153 ) .

71. Having regard to the Court ’ s case-law on the matter (see, a fortiori , Trdan and Ć. , cited above ), 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.

72. In view of this conclusion it is not necessary to examine the remaining inadmissibility objections raised by the Government (see paragraphs 57-59 above).

B . Alleged violation of Article 13 of the Convention

73. The applicant further complained that he had not had an effective remedy for complaining about the violation of his right to respect for his family life, that is, a remedy that would prevent successive remittals of the case. He relied on Article 13 taken in conjunction with Article 8 of the Convention. Article 13 reads:

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.”

74. The Government reiterated its above argument (see paragraph 58) that the applicant had had at his disposal an effective remedy for redressing the alleged violation of his right to respect for family life, whereas, as already noted above (see paragraph 61), the applicant did not submit observations in reply to those of the Government.

C. Other a lleged violation s of the Convention

76 . The applicant also complained under Article 10 of his criminal conviction for defamation (see paragraph 48 above) , under Article 14 of his discrimination on the ground s of his sex and under Article 6 § 1 of the Convention of the unfairness of the above civil proceedings for custody and access rights. Lastly, he also invoked Articles 3, 4, 5 and 17 of the Convention without specifying further these complaints.

77 . As regards the complaint under Article 10 of the Convention, the Court notes that the applicant was eventually acquitted in the criminal proceedings complained of (see paragraph 49 above) . As regards the applicant ’ s complaints under Articles 6 § 1 and 14, the Court notes that the civil proceedings complained of also ended with a decision in the applicant ’ s favour (see paragraphs 40 and 42 above) . The applicant ’ s remaining complaints under Articles 3, 4, 5 and 17 of the Convention are unsubstantiated.

78. It follows that this part of the application 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.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Søren Nielsen Isabelle Berro Registrar Presiden t