Communicated on 30 June 2014

FIRST SECTION

Application no. 35810/14 Mario BEGOVIĆ against Croatia lodged on 5 May 2014

STATEMENT OF FACTS

The applicant, Mr Mario Begović, is a Croatian national, who was born in 1976 and lives in Vinkovci. He is represented before the Court by Ms V. Šnur, a lawyer practising in Vinkovci.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 19 September 1998 the applicant married D. On 17 April 2001 D. gave birth to their son, M.

1. Proceedings concerning the divorce of the applicant and D. and their residence and contact rights

On 10 January 2008 D. filed a petition for divorce with the Sesvete Municipal Court ( Općinski sud u Sesvetama ), arguing inter alia that their communion had de facto ceased to exist in March 2007 when the applicant had moved to Vukovar. She also argued that M. should have continued residing with her and suggested appropriate contact rights for the applicant, who should have paid 2,500 Croatian kunas (HRK) a month for M. ’ s maintenance.

On 13 February 2008 the applicant replied to D. ’ s claim. While accepting the divorce, he argued that he had moved to Vukovar in October 2007 for work and that D. had refused to move with him. At the same time, the applicant lodged a counter-claim, asking for the right to reside with M. and D. ’ s payment of HRK 1,440 a month for M. ’ s maintenance.

On an unspecified date D. asked the Sesvete Municipal Court to render a temporary decision as regards the parents ’ residence and contact rights in respect of M. The Municipal Court requested the opinion of the Sesvete Social Welfare Centre ( Centar za socijalnu skrb Sesvete , hereinafter “the Centre”) on the matter. The Centre suggested the award of residence rights to D. and contact rights to the applicant, namely every second weekend, every second public holiday, one week of winter holidays and three weeks of summer holidays.

On 3 July 2008 the Municipal Court rendered its temporary decision, awarding residence rights to D. and contact rights to the applicant. Following the transition period in July and August 2008, the applicant should have spent every second weekend with M. and four hours on a working day every second week. He was also ordered to pay HRK 1,500 a month for M. ’ s maintenance. The relevant part of that decision reads as follows:

“... [A psychologist] Ms P. works with the child upon mother ’ s initiative and without father ’ s knowledge... she noted mild separation fears...

In the opinion of this court the circumstances in which Ms P. speaks with the child are entirely different than the ones of Ms V. from the Centre... the child spoke with Ms V. alone in a separate room where he was free and Ms V. noted that the child was full of emotions while speaking about his father, that he loved him, that he loved to go on trips with him and to play with him...

There are no significant contradictions between the opinion of Ms P... and the Centre ’ s opinion...

... the court found... that the child is attached to both parents and that the dominant care for child was so far carried out by the mother. Her actions, however, show that her allegations in course of the proceedings did not entirely correspond to the facts. It is a fact that the mother took the child to psychologist and for long summer holidays without father ’ s knowledge and therefore interrupted the regularity of father-son meetings, which is not in the child ’ s interest. The court fully accepts the Centre ’ s opinion... that a seven-year old child whose parents are unable to agree on their enjoyment of parental care cannot independently decide when and in what way and rhythm he should meet his father. The child ’ s attitude towards his father and his mother shall be assessed alongside his need to maintain regular contacts with the father and their emotional bond...

Having regard to the child ’ s age, the court decided not the hear evidence from him, as it would only create an additional burden and was not in his interest.”

D. appealed against the part of that decision on the applicant ’ s contact rights, arguing that the Municipal Court had failed to properly assess the opinion of Ms P., child ’ s psychologist, which was contradicting the opinion of the Centre ’ s psychologist.

In course of the divorce proceedings, on 30 September 2008 the Municipal Court heard evidence from the applicant, D., and the Centre. The latter suggested a multi-disciplinary assessment of parents and their child in the Zagreb Child Protection Centre ( Poliklinika za zaštitu djece grada Zagreba ). The Municipal Court then rendered a partial judgment divorcing the marriage of the applicant and D. and ordered the Centre to issue its opinion on the parents ’ residence and contact rights.

On 28 October 2008 the Zagreb County Court ( Županijski sud u Zagrebu ) accepted D. ’ s appeal against the Municipal Court ’ s decision of 3 July 2008, quashed its part on the applicant ’ s contact rights and remitted the case. The relevant part of that decision reads as follows:

“In its impugned decision the first-instance court found that the Centre had not detected [in M.] a separation anxiety as regards the mother or resistance towards contacting the father and had suggested independent father-son contacts, while Ms P... alleged that the child was strongly attached to the mother and noted elements of separation anxiety and increased anxiety when faced with the possibility of spending the night at the father ’ s place.

As the opinions of Ms P. and the Centre differ significantly about circumstances decisive for contact rights... the first-instance court erred when it found that those opinions are not contradictory.”

On an unspecified date the applicant found a new job and moved from Vukovar to Sesvete.

On 9 March 2009 the Municipal Court joined the divorce proceedings and the proceedings concerning the residence and contact rights.

On an unspecified date the Zagreb Child Protection Centre carried out its assessment of the applicant, D. and M. It found that M. was depressed about his parents ’ separation and burdened with their damaged relationship, which put him in a loyalty conflict. It therefore recommended expert counseling of parents and supportive psychological treatment of M.

On 20 March 2009 the Municipal Court rendered its fresh temporary decision on the applicant ’ s contact rights, awarding him one day per week, every second weekend, every second public holiday and half of the school holidays. The relevant part of that decision reads as follows:

“... The court found that it is in the interest of M. to have contact with his father as suggested by the Centre...

Ms P. did not notice any resistance towards the father and endorsed the Centre ’ s proposal.”

D. appealed against that decision.

On 9 June 2009 the Zagreb County Court accepted D. ’ s appeal, quashed the Municipal Court ’ s decision and remitted the case. The relevant part of that decision reads as follows:

“... the first-instance court failed to thoroughly assess the evidence given by Ms P... that the boy might develop resistance during visits to the father and have problems caused by unclear partner relationship, for which he feels would be resolved if he expresses his desire to sleep at the mother ’ s place and the father would take him back. The first-instance court incorrectly assessed that the relationship between the parents is mature enough... and lost sight of the parents ’ failure to discuss and determine their relationship, which placed their son in a position where he has to choose. Parents were instructed to undertake couples therapy, which have not begun. In such circumstances parents should not be allowed to act according to child wishes. The court is the one to decide, bearing in mind the best interest of the child.”

On 15 October 2009 the Municipal Court rendered its fresh temporary decision on the applicant ’ s contact rights, awarding him two hours every Wednesday, every second weekend and every second public holiday. The relevant part of that decision reads as follows:

“The lack of parents ’ co-operation concerning their enjoyment of parental rights, [D. ’ s] firm attitude and unwillingness to co-operate with [the applicant] must not run counter to the child ’ s interests...

Given that so far the mother was not co-operative as regards the time scheduled for father-son meetings once a week, it was in the interest of the child to specify the previous decision...”

D. appealed against that decision.

On 1 November 2009 D. and M. moved to Vinkovci.

On 29 December 2009 the County Court dismissed D. ’ s appeal and upheld the first-instance decision.

In summer 2010 the applicant moved to Vinkovci as well.

On 28 January 2011 the Municipal Court ordered the Zagreb Child Protection Centre to carry out a psychiatric and psychological expert assessment of the applicant, D. and M. in order to reach a final decision on residence and contact rights, in the M. ’ s best interest. D. and M. refused to undertake this assessment.

On 12 October 2012 the Municipal Court set aside its decision of 15 October 2009 and rendered a new temporary decision on contact rights, awarding the applicant two hours every Saturday until 31 December 2012, with an obligation to bring M. back earlier if he so desires. As of 1 January 2013, the Municipal Court awarded the applicant seven hours every Saturday, every second public holiday, fifteen days during summer holidays and seven days in the 2013/2014 winter holidays, with an obligation to bring M. back earlier if he so desires. At the same time, it rendered a judgment awarding residence rights to D., the joint custody over M. to D. and the applicant and the same contact rights to the applicant as in its temporary decision. It also ordered the applicant to pay HRK 2,000 a month for M. ’ s maintenance. Finally, it dismissed the applicant ’ s counter ‑ claim. The relevant part of that decision and judgment reads as follows:

“The child is eleven and half years old and, notwithstanding the significance of the mother ’ s influence on his development (concerning the father ’ s allegations of manipulation), he leaves the impression of a boy standing firmly behind his beliefs and attitudes, who expresses his will openly and clearly...

[M.] wishes to live with his mother and to spend at most two hours on Saturdays with his father, and without supervision, as his weekly schedule is full of school and music assignments. He uses the court to ask his parents to do everything they can for termination of the court proceedings.

... [the Vinkovci Social Welfare Centre] suggested father-son meetings every Saturday from 10 a.m. to 5 p.m.... seven days of winter holidays, fifteen days of summer holidays and alternate public holidays.

... [the Vinkovci Social Welfare Centre employee in charge of meetings ’ supervision from 15 July 2010 to 15 July 2011] saw M. once on the doorstep refusing to talk to the father or her and showing resistance towards them, and [the Vinkovci Social Welfare Centre employee in charge of meetings ’ supervision from 15 February 2012] alleged that the first meeting had been held, and there had been meetings after that, but only partially and not in line with the court ’ s decision, that the boy had been resisting the meetings so another date had been scheduled, but the next meeting again had not taken place, and that the boy had asked his father to terminate lawsuits against his mother, and then the father would be able to see him...

In an essay M. wrote in the third grade one can detect a firm connection with his mother, a heavy burden of pending court proceedings (enforcement proceedings, criminal proceedings, present case) and the child ’ s feeling that his father has left his mother and does not respect the love he feels for his mother. He is also burdened with the feeling that he “must spend time with the father” when he does not want to and the feeling that his father does not understand him and did not understand him earlier. Finally, he is sad about the fact that his father has a new family...

In the present case the child has a stronger emotional bond with his mother from his birth and shows resistance to his father. He also shows a significant level of resistance towards the set schedule of meetings, and his parents despite everything fail to reach the minimum level of co-operation and dialogue in the interest of their child. With the passage of time, they drift apart and confront more and more, which is evident from the enforcement proceedings and the supervision of meetings, that negatively influence their child, deprived of the freedom of choice.

The joint parental care is necessary for a healthy, proper and successful development and upbringing of every child, and lacking in the present case. No court decision can replace a good parents ’ agreement on joint care and such decision in the present case is being enforced imperatively on the child, but finally protects his “right to both parents”.

... in order to establish and put to life the father-son emotional bond and taking into account the child ’ s wishes and his free time, the court decides to start with Saturday meetings for two hours... so that the child could see that the court respected his ability to independently express the wish to spend more or less time with the father, and afterwards every Saturday from 10 a.m. to 5 p.m. [as suggested by the Vinkovci Social Welfare Centre]...

Having regard to the events and length of this proceedings, the Centre ’ s proposal of 28 September 2012 that the court orders the parents and the child to undertake the assessment of the Zagreb Child Protection Centre, after which the Centre would give its final opinion, was dismissed, as there are no reasons for which the Court would delay its decision after more than four years, given that the Vinkovci Social Welfare Centre issued its opinion and that decisions in the proceedings are subject to change within the meaning of section 102 of the Family Act.”

Both the applicant and D. appealed against that decision and judgment.

On 23 April 2013 the Zagreb County Court dismissed both appeals and upheld the first-instance decision and judgment, endorsing the reasoning of the Municipal Court.

The applicant lodged a constitutional complaint against the secon d ‑ instance decision and judgment. He argued that, despite the decisions awarding him contact rights, D. had so far successfully prevented him from meeting their son. According to the applicant, D. alleged that M. did not want to see him, she did not allow the Centre to speak with M. and she was filming their conversations. He also argued that the lower courts ’ decisions were based on the M. ’ s statements, without taking into account his best interest. He further complained about the inactivity of the Centre and the Vinkovci Social Welfare Centre, which have not done anything in six years to facilitate his contact rights. Finally, he complained that the State authorities had failed to prevent D. ’ s manipulative influence over M., causing him to completely lose touch with his son.

On 24 October 2013 the Constitutional Court ( Ustavni sud Republike Hrvatske ) dismissed the applicant ’ s constitutional complaint. It found that the lower courts had had sufficient regard to the best interests of the child and had struck a fair balance between the interests of the parties to the proceedings and the child.

The decision of the Constitutional Court was served on the applicant on 10 November 2013.

2. Criminal proceedings

Meanwhile, on an unspecified date the applicant as a private prosecutor indicted D. before the Vukovar Municipal Court ( Općinski sud u Vukovaru ) for failure to comply with an order for the protection of the children ’ s well ‑ being ( neprovoÄ‘enje odluke za zaÅ¡titu dobrobiti djeteta ).

The Vukovar Municipal Court ordered the psychological assessment of the applicant, D. and M. and heard evidence from the Vinkovci Social Welfare Centre.

Ms Pl., a psychologist in charge of the supervision of parental care from 15 July 2010 to 15 July 2011, alleged that in that year the applicant had had no contacts with M.

Ms B., a court expert in psychology, noted M. ’ s negative emotions and attitudes towards his father. In her opinion, M. ’ s wish to break with the father and his side of the family should be seen in the context of extremely suggestive behaviour and manipulation of his mother.

On 16 May 2013 the Vukovar Municipal Court found D. guilty as charged, gave her a court warning and ordered her to pay the costs of proceedings.

On 17 September 2013 the Vukovar County Court ( Županijski sud u Vukovaru ) dismissed appeals of both parties and upheld the first-instance judgment.

3. Enforcement proceedings

Meanwhile, on an unspecified date the applicant instituted enforcement proceedings against D. in the Vinkovci Municipal Court ( Općinski sud u Vinkovcima ), due to her failure to comply with the decision of the Sesvete Municipal Court of 15 October 2009.

On 21 January 2011 the Vinkovci Municipal Court issued an enforcement order against D. and fined her with HRK 5,000. D. was ordered to allow the applicant ’ s enjoyment of contact rights within eight days, under the threat of further HRK 7,000 fine.

As D. failed to comply with the enforcement order and to pay the fine, on 3 August 2011 the Vinkovci Municipal Court replaced her fine with 28-day imprisonment and ordered her to pay additional HRK 7,000.

On 9 February 2012 the Vukovar County Court dismissed D. ’ s appeal and upheld the first-instance decision.

COMPLAINT

The applicant complains under Article 8 of the Convention that the failure of the State to enforce and facilitate the enjoyment of contact rights with his son violated his right to respect for his family life.

QUESTION TO THE PARTIES

Has there been a violation of the applicant ’ s right to respect for his family life, contrary to Article 8 of the Convention? In particular, has his inability to enjoy contact rights with his son for about seven years amounted to a violation of his right to respect for his family life?