SECOND SECTION

DECISION

Application no. 45174/20 Nenad FILIĆ against North Macedonia

The European Court of Human Rights (Second Section), sitting on 7 February 2023 as a Committee composed of:

Lorraine Schembri Orland , President , Jovan Ilievski, Diana Sârcu , judges , and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 45174/20) against the Republic of North Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 6 October 2020 by a Croatian national, Mr Nenad Filić, who was born in 1986 and lives in Vocin, Croatia (“the applicant”) and who was represented by Ms S. Joshevska-Anastasovska, a lawyer practising in Skopje;

the decision to give notice of the application to the Government of North Macedonia (“the Government”), represented by their Agent, Ms D. Djonova;

the decision to give priority to the application (Rule 41 of the Rules of Court);

the decision of the Croatian Government not to exercise their right to intervene in the proceedings (Article 36 § 1 of the Convention);

the parties’ observations;

the decision to reject the Government’s objection to examination of the application by a Committee;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns administrative proceedings concerning the contact rights of the applicant (a Croatian national residing in Croatia) in respect of his daughter, K. (born in 2012), who – following her parents’ divorce – lives with her mother in the respondent State.

2 . In November 2017 the applicant wrote to the Štip Social Care Centre (“the Centre”) requesting that his contact rights with K. be determined. In February 2018 the Centre issued a contact order under which the applicant was to see K. for four weekends per year for several hours on Friday, Saturday and Sunday (consecutively), in the respondent State. Pursuant to the order, the applicant saw K. during the scheduled weekends in March 2018, August 2018 and March 2019; he further submitted that all the subsequent scheduled meetings in 2019 had also taken place. He notified the Centre that he would not attend the visits scheduled for June 2018 and December 2018. The visits scheduled for March and June 2020 did not take place owing to the Covid-19 restrictions.

3 . After the case was remitted by the Higher Administrative Court, on 7 August 2020 the Centre issued a fresh contact order under which the applicant was to see K. in his place of stay during Orthodox Easter and during the summer and winter holidays. On 20 August 2020 the Centre issued an enforcement order ( налог за извршување ). The mother submitted a medical note stating that children with chronic illnesses were in a “high-risk category” (presumably in respect of Covid-19); the note recommended that K., who had asthma, avoid travelling to “regions with a risk of Covid-19” ( во ризични подрачја со COVID 19 ). On 21 August 2020 the Centre discontinued the enforcement proceedings and issued a new contact order, which provided that the applicant could see K. in the respondent State between 21 and 31 August 2020. The applicant could not have honoured this order as he was unable to remain in the respondent State for family reasons.

4. The case was remitted again by the Ministry of Labour and Social Policy and in December 2020 the Centre issued a fresh contact order under which, in view of the Covid-19 pandemic, the applicant was to contact K. online and by telephone every Wednesday afternoon for one hour.

5 . After another remittal by the Administrative Court, in December 2021 the Centre again set a new contact schedule providing in-person and online contact three times per week and on certain specific dates, as well as (in the respondent State) in-person contact for three days during the winter holidays and five days during the summer holidays. No information is available as to whether that order became final and whether it was enforced.

6. The applicant complained under Articles 6, 8 and 13 of the Convention that the domestic authorities had failed to assist him in his efforts to see his child.

THE COURT’S ASSESSMENT

7. The applicant’s complaints under Articles 6 and 8 of the Convention regarding the applicant’s contact rights will be examined only under Article 8 (see Mitovi v. the former Yugoslav Republic of Macedonia, no. 53565/13, § 49, 16 April 2015).

8. It is not necessary to examine the Government’s admissibility objections (non-exhaustion and non-compliance with the six-month rule), as the application is in any event inadmissible for the reasons stated below.

9. The general principles relevant for the applicant’s complaints under Article 8 of the Convention have been summarised in Mitovi (cited above, §§ 54-56) and in Khusnutdinov and X v. Russia (no. 76598/12, §§ 76-83, 18 December 2018).

10 . In so far as the applicant complained about the domestic authorities’ decisions regarding the determination of his contact rights with his daughter, and in particular the decision-making process, it appears that the proceedings for establishing the applicant’s contact rights in respect of K. are still pending – or at least were still pending in December 2021. The applicant’s grievances concerning the Centre’s decision-making process and the contact orders themselves – including the Centre’s refusal to allow contact visits outside the respondent State owing to K.’s health – were to be addressed in those proceedings, as some of them had already been in earlier proceedings (see, for instance, the proceedings referred to in paragraph 3 above, in which the Higher Administrative Court had remitted the case to the Centre because the applicant had not been involved in the proceedings leading to the contact order of February 2018) . Furthermore, as argued by the Government, the applicant could at any time have requested that the Centre determine anew the contact rights (for example, in the light of new developments).

11. When examining whether the State complied with its positive obligations inherent in an effective “respect” for the applicant’s family life with his daughter K. in these proceedings, the Court notes that although it is true that the examination of the applicant’s arguments in the impugned proceedings was somewhat lengthy, it cannot be said that this fact alone affected (to any considerable extent) the substance of the applicant’s rights under this head. Five contact orders were issued during that period (contrast Ribić v. Croatia , no. 27148/12, §§ 99 and 100, 2 April 2015), the lodging of the appeals against which did not suspend their enforcement.

12. In so far as the applicant complained about the enforcement of those orders, in the period covered by the order of February 2018 (February 2018 - June 2020), the applicant met with K. at least once during each of six scheduled weekends (contrast Mitovi , cited above, §§ 62-63). The meetings scheduled for four other weekends did not take place for reasons unrelated to the actions of the domestic authorities (see paragraph 2 above).

13. As regards the Centre’s actions, it contacted the mother in order that she could prepare her daughter for the applicant’s visits in March and December 2018 and in March 2019. The applicant submitted that the Centre had taken no action following his visit of March 2019, when the mother had refused to hand K. to the applicant on the third day of the scheduled three ‑ day visit because she (K.) had been ill. However, the Court finds that this did not impede the applicant’s subsequent contact with K. in 2019, which, as submitted by the applicant, took place as provided by the order. There is thus no indication that the Centre was required to undertake any additional action in this respect, such as initiating of its own motion enforcement proceedings in respect of the order.

14. During the period of validity of the order of 7 August 2020, the Centre took certain measures to facilitate the applicant’s meeting with K., following his notification to the Centre on 17 August 2020 that he was coming to the respondent State on 19 August 2020. On 20 August 2020 the Centre issued an enforcement order, scheduling the enforcement for the following day; that order was stayed for reasons concerning K.’s health and her wish not to travel to Croatia. The Court cannot substitute itself for the domestic authorities in the exercise of their responsibilities regarding contact issues (see Sommerfeld v. Germany [GC], no. 31871/96, §§ 62 and 64, ECHR 2003 ‑ VIII (extracts)). The Centre’s decision to stay the enforcement cannot be considered to constitute an abuse of the authorities’ powers of discretion (see, mutatis mutandis, Krasicki v. Poland , no. 17254/11, § 99, 15 April 2014). On the same day the Centre issued another contact order (see paragraph 3 above in fine ), the aim of which was to enable the applicant to meet with K. in the respondent State. However, the latter was not enforced for reasons unrelated to the authorities (see paragraph 3 above).

15. From the known facts, it appears that the order of December 2020 was enforced in practice. After the applicant notified the Centre of problems concerning some scheduled meetings, the Centre contacted the mother and visited K.’s home to make enquiries in respect of those occurrences. There is no information regarding whether the applicant encountered any further difficulties in contacting K., including after the fresh contact order issued in December 2021.

16. Accordingly, there was no lack of diligence on the part of the authorities concerning the enforcement of the contact orders (see, mutatis mutandis, Jurišić v. Croatia (No. 2) , no. 8000/21, § 48, 7 July 2022) that would have prevented the applicant from having contact with K. The Court notes in this context the inherent difficulty for the applicant to maintain regular in-person contact with K., owing to (i) the fact that they lived in different countries and (ii) the restrictions related to the Covid-19 pandemic.

17. This complaint is therefore manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

18. As regards the applicant’s new submissions under Article 6 regarding the length of the proceedings (which the applicant made for the first time in his observations on the admissibility and merits), the Court notes that, in any event, he failed to pursue any of the remedies available under the domestic law (see, mutatis mutandis , Taneva and Others v. the former Yugoslav Republic of Macedonia (dec.), no. 11363/03, 10 November 2009, in respect of ‘silence of the administration’, and Adži-Spirkoska and Others v. the former Yugoslav Republic of Macedonia (dec.), nos. 38914/05 and 17879/05, 3 November 2011, in respect of the length of the proceedings). It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

19. The above-noted conclusions also mean that the applicant had no “arguable claim” under Article 13 of the Convention of a breach of his rights under Articles 6 and 8 of the Convention. This part of the application must thus equally be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 9 March 2023.

Dorothee von Arnim Lorraine Schembri Orland Deputy Registrar President