Communicated on 11 April 2014

FIRST SECTION

Application no. 21453/13 Marijana HODŽIĆ against Croatia lodged on 15 December 2012

STATEMENT OF FACTS

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

The applicant began living with K. in 1995, while she was still married to M. That marriage ended on 18 March 1996. In early 1996 K. left the applicant. Their daughter A. was born on 29 April 1996. A. has coeliac disease and has been on social welfare of 100 Croatian kunas (HRK) a month since 1 November 2009.

1. Proceedings for determination of paternity and payment of maintenance

On an unspecified date the applicant and A. brought a claim against K. before the Zagreb Municipal Civil Court ( Općinski građanski sud u Zagrebu ), seeking determination of K. ’ s paternity and the payment of maintenance for A.

On 5 December 2007 the Zagreb Municipal Civil Court allowed the claim, determining that K. was A. ’ s father and ordering K. to pay HRK 900 a month from 11 December 1997, together with statutory interest, for A. ’ s maintenance. The Zagreb Municipal Civil Court also ordered that A. should live with the applicant, and made a ruling on contact between K. and A. This judgment became final and enforceable on 15 September 2008.

2. Enforcement proceedings

As K. failed to comply with the final judgment of the Zagreb Municipal Civil Court, on 14 December 2009 the applicant and A. instituted enforcement proceedings against him before the Zagreb Municipal Civil Court, seeking an attachment of earnings order in the amount of half his monthly salary.

On 24 February 2010 the Zagreb Municipal Civil Court issued an enforcement order, thus granting the applicant ’ s and A. ’ s request.

However, the applicant has so far received only the following amounts: HRK 1,000 for 2010, the due amount for 2011, HRK 1,800 for 2012, and HRK 6,500 for 2013. It appears that K. avoided an attachment of earnings order by changing employers, and agreed to pay some of the maintenance debt when threatened with criminal sanctions.

3. First set of criminal proceedings against K.

On an unspecified date the Zagreb Municipal State Attorney ’ s Office ( Općinsko državno odvjetnišvo u Zagrebu ) lodged an indictment against K. with the Juvenile Department of the Zagreb Municipal Criminal Court ( Općinski kazneni sud u Zagrebu ) for breach of obligation to pay maintenance.

The Zagreb Municipal Criminal Court found K. guilty as charged on 8 September 2010. K. was sentenced to ten months ’ imprisonment, suspended for three years, and placed on probation with the added condition that future maintenance payments be made regularly.

On 11 October 2010 the applicant lodged a writ for revocation of the suspension of the sentence ( prijedlog za opoziv uvjetne osude ) with the Zagreb Municipal Criminal Court.

On 12 March 2013 a three-judge panel ( izvanraspravno vijeće ) of the Zagreb Municipal Criminal Court discontinued the proceedings for revocation of the suspension of the sentence. During these proceedings K. paid HRK 4,300 of the HRK 4,800 due for the period from October 2010 to March 2011. The relevant part of that decision reads as follows:

“ ... having in mind the fact that the convicted person has for the most part complied with the obligations laid down in the judgment [of 8 September 2010], this court finds that currently there are no grounds [for revocation of the suspension of the sentence] ...

Any revocation of the suspension of the sentence of the convicted K. is not dependent on the payment of his debt, and the three-judge panel did not have the jurisdiction to determine whether or not the convicted person has paid the victim the unspecified amount of the accumulated debt ... in addition, the operative part of the judgment does not specify for whose maintenance the convicted person is to pay, or to which current account.

Therefore, the three-judge panel considers that the statutory conditions for revocation of the suspension of the sentence on the grounds of failure of the convicted person to pay maintenance are not met, given that the operative part of the judgment is not enforceable. Thus, the three-judge panel considers that the suspension of the sentence cannot be revoked and the convicted person cannot be imprisoned. Despite the fact that the findings of the three-judge panel that the convicted person has for the most part complied with his obligations are disputed, the revocation of the suspension of the sentence on the grounds of the failure of the convicted person to pay maintenance would be ultra vires and in breach of the criminal code to the detriment of the convicted person.”

4. Second set of criminal proceedings against K.

Meanwhile, on 17 February 2012 the Zagreb Municipal State Attorney ’ s Office lodged another indictment against K. with the Juvenile Department of the Zagreb Municipal Criminal Court for breach of obligation to pay maintenance between April 2011 and 15 February 2012.

The Zagreb Municipal Criminal Court found K. guilty as charged on 2 October 2012, and the judgment became final on the same day. During the proceedings K. admitted the offence and paid the HRK 10,200 due for that period. K. was sentenced to seven months ’ imprisonment, suspended for three years, and placed on probation with the added condition that future maintenance payments be made regularly.

On an unspecified date the applicant lodged a writ for revocation of the suspension of the sentence ( prijedlog za opoziv uvjetne osude ) with the Zagreb Municipal Criminal Court.

On 3 September 2013 a three-judge panel of the Zagreb Municipal Criminal Court discontinued the proceedings for revocation of the suspension of the sentence. The relevant part of that decision reads as follows:

“ ... it follows that the convicted person has settled his debt [from April 2011 to 15 January 2012] and that monthly amounts are regularly deducted from his salary. During the proceedings it was not established that he had been deliberately avoiding payment of maintenance.

Therefore, this court finds that there are no grounds for revocation of the suspension of the sentence in the particular circumstances of the case.

... the obligation of the convicted person to pay maintenance remains after the termination of the proceedings. If the convicted person fails to comply with this obligation the victim may use civil proceedings for enforcement of her claim until final settlement is obtained.”

COMPLAINTS

The applicant complains under Article 6 of the Convention that the final judgment in her favour has not been enforced.

She also complains, under Article 8 of the Convention, that the State has failed to enforce the payment of maintenance for her child.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of her civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, is the period in which the applicant has been unable to enforce a final judgment in her favour excessive, given the particular circumstances of the case?

2. Has there been a violation of the applicant ’ s right to respect for her family life, contrary to Article 8 of the Convention? In particular, what are the positive obligations of the State authorities in facilitating the applicant ’ s recovery of her maintenance claims? Have they been complied with?

The Government is invited to submit to the Court the following documents:

a) the enforcement orders issued against Krešimir Crnković at the request of the applicant;

b) the criminal complaint, indictment and judgments in the case Kzm-86/2010 of the Zagreb Municipal Criminal Court;

c) the criminal complaint, indictment and request for revocation of the suspension of the sentence in the case Kzm 42/2012 of the Zagreb Municipal Criminal Court.