Resolution CM/ ResDH (2011)45 [1]

Execution of the judgment of the European Court of Human Rights

Šobota-Gajić against Bosnia and Herzegovina

(Application No. 27966/06, judgment of 06/11/2007, final on 06/02/2008)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the applicant ’ s right to respect for her family life due to the failure of the authorities to take all reasonable measures to facilitate her reunion with her son despite several domestic decisions in her favour (violation of Article 8) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures, preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to clos e the examination of this case.

Appendix to Resolution CM/ ResDH (2011)45

Information on the measures to comply with the judgment in the case of

Šobota-Gajić against Bosnia and Herzegovina

Introductory case summary

The case concerns the violation of the applicant ’ s right to respect for her family life in that for six years the authorities failed to take all reasonable measures to facilitate her reunion with her son despite several domestic decisions in her favour (violation of Article 8).

The Social Care Centre granted the applicant provisional custody of her two children by virtue of an administrative order of 12/02/2003 while the divorce and custody proceedings were pending before court. The Social Care Centre gave this order in accordance with the 1979 Family Act, which was no longer in force at the material time. The applicant had taken her daughter with her even before the order was given but did not succeed in taking her son. The administrative order was executed nine months later and the applicant ’ s son was eventually handed over to her.

However, the applicant ’ s son was abducted by his father the day after the execution of the administrative order. No further steps could have been taken to enforce the administrative order because domestic law provided that such orders could only be executed once.

On 19/02/2003 the Gradiška Court of First Instance granted the applicant a divorce and custody over her son. That judgment became final only on 07/09/2004 and remained unexecuted. In the meantime, the criminal proceedings initiated against the child ’ s father for abduction remained at preliminary stage until his death on 14/01/2006.

On 31/03/2006, the Gradiška Minor Offences Court ordered the Social Care Centre to secure promptly, with police assistance if necessary, the return of the applicant ’ s son from his paternal grandmother, with whom he continued to live after the death of his father. This order was enforced only on 22/01/2007. The local police also refused to provide assistance despite the clear instruction given by the Gradiška Minor Offences Court to this effect.

The Court found in the circumstances of the present case that the national authorities had failed to take the necessary measures to facilitate the applicant ’ s reunion with her son.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

8800 EUR

4700 EUR

13500 EUR

Paid on 05/05/2008

b) Individual measures

The judgment awarding custody to the applicant was executed and she was reunited with her son on 22/01/2007. In addition, the Court awarded the applicant just satisfaction in respect of non-pecuniary damage.

II. General measures

The authorities of the respondent state have taken a number of measures aimed at preventing similar violations.

1) Legislative measures: The 2002 Family Act of Republika Srpska (the entity of the respondent state in which the events at issue took place) now authorises courts to give interim orders during the course of proceedings related to custody and maintenance. Consequently, social care centres are no longer authorised to give such orders.

The 2003 Enforcement Procedure Act of Republika Srpska provides that a child should be returned voluntarily by the person obliged to comply with an enforcement order within three days after the receipt of such decision. The domestic courts will impose fines if such decisions are not complied with. If necessary, the courts will also request assistance from the custody authorities. In any event, the courts have an obligation to protect the child ’ s interests during the enforcement of a custody order. As a last resort, the child will be taken forcibly if the fines imposed do not secure his or her return.

In cases where a child is abducted following the enforcement of a custody decision, the 2003 Enforcement Procedure Act of Republika Srpska provides for repeated enforcement of one and the same order, if less than 60 days have elapsed before the child has been abducted.

The abduction of a child also falls within the ambit of the 2005 Domestic Violence Act of Republika Srpska . When confronted with a situation similar to the facts of the present case, the police, public prosecutors, custody authorities and courts are now obliged to provide protection for the victims and to examine these cases as a matter of priority. Police officers are under an obligation to draw up a report presenting the facts of the case and send it within 24 hours to the competent public prosecutor and the Social Care Centre. In addition, public prosecutors are under an obligation to take the required steps without any delay and notify the competent court thereon. The competent court is obliged to make a decision without any delay, in any event not later than 3 days.

2) Publication and dissemination : The Court ’ s judgment was published in the Official Gazette of Bosnia and Herzegovina and posted on the website of the Office of the Government Agent ( www.mhrr.gov.ba/Ured Z astupnika ). The Office of the Government Agent wrote to administrative bodies and courts involved in the present case and informed them of the violation found. This information was also sent to other authorities, including the Minister of Health and Social Security, the Office of the Legal Representative, the Prime Minister in Republika Srpska , the Prime Minister in the Federation of Bosnia and Herzegovina and the Constitutional Court and the Chairman of the Council of Ministers in Bosnia and Herzegovina .

III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that these measures will prevent similar violations and that Bosnia and Herzegovina has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies