SECOND SECTION

Application no. 28181/11 Nataša STOJANOVIĆ against Serbia lodged on 21 April 2011

STATEMENT OF FACTS

1. The applicant, Ms Nataša Stojanović , is a Serbian national, who was born in 1973 and lives in Belgrade . She is represented before the Court by Ms D. Jovanović , a lawyer practising in Belgrade .

A. The circumstances of the case

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

1. Introduction

3. T he applicant and S.S. (“the respondent”) , both teachers in primary schools, married in 1998. Their son V.S. was born in August 1999. They lived in the household of the respondent ’ s parents in a Belgrade neighbourhood .

4. In May 2008 the applicant moved to her parents ’ house in the same place, because of alleged “psychological abuse” by her husband and his family . V.S. continued living with his father. The applicant allegedly did not dare to take her son with her because of the threats made by the respondent , of which the police had been informed.

2. Civil proceedings (divorce, child custody and maintenance)

5. On 19 May 2008 the applicant filed a claim with the the n Belgrade Second Municipal Court ( Drugi o pštinski sud ; “the Municipal Court” ), seeking dissolution of her marriage and sole custody of the child . She also requested interim custody of t he child until the conclusion of the civil proceedings. On an unspecified date the respondent filed a counter- claim against the applicant, also seeking sole custody and child maintenance.

6. O n 23 June 2008 the Belgrade Social Care Centre – Rakovica Unit (“the Social Care Centre”) urged for the adoption of an interim custody order in the applicant ’ s favour . It also advised supervised contacts between the respondent and the child, in view of the respondent ’ s unwillingness to cooperate, as well as his inappropriate behaviour and grave manipulation of the son which would grossly prejudice the latter ’ s need for contact with the applicant.

7. On 8 July 2008 t he Municipal Court rejected the applicant ’ s request for interim custody, but specified her ample access rights in respect of the child pending the final outcome of the custody proceedings (see para graph 22 below). This interim access order was immediately enforceable.

8. On 10 July 2008 the Municipal Court requested the Mental Care Institute in Belgrade ( Institut za mentalno zdravlje ; “MCI”) to examine the parental capacity of both parties, as well as to provide the child ’ s opinion in that respect and assess whether his opinion was in his best interests.

9. On 15 September 2008 the MCI recommended that custody be awarded to the applicant . The report stated that the child was facing very high and jeopardising emotional and developmental risks of being denied the benefit of his mother ’ s presence . His questioning before a court, according to the report, would not be in his best interests. S hould the father fail to cooperate , the experts suggested corrective supervision of his exercise of parental rights .

10. O n 11 November 2008 the Municipal Court granted the interim custody sought again by the applicant on 25 October and ordered the respondent to immediately surrender the child to her, pending the final outcome of the civil proceedings. It also quashed the part of the interim order of 8 July concerning its decision not to grant custody to the applicant.

11. The respondent appealed, inter alia , because two contradictory orders were in force. The applicant also requested the court to quash the interim access order of 8 July 2008. The case file was transferred to the District Court on 31 December 2008. On 11 February 2009 the District Court upheld the interim custody order and requested the Municipal Court to order the respondent ’ s access rights as the latter had failed to do so.

12. A new hearing was scheduled for 11 May 2009. On 24 March 2009 the applicant asked the Municipal Court to re-schedule that hearing to an earlier date. On 6 April 2009 the Municipal Court acknowledged that the applicant ’ s complaints were partly founded and justified the fixed schedule by judges ’ over work , overbooked trial days and insufficient premises.

13. On 11 May 2009 the court issued a decision to hear the parties and an MCI expert and postponed the hearing until 5 June 2009.

14. On 27 May 2009 the MCI submitted a fresh report, following the court ’ s request, finding that the child ’ s emotional development was highly jeopardised by his father directly disqualifying the applicant as mother in order to alienate the child from her. The child was constantly in fear and a conflict of loyalties. In view of psychological pressure to which the child was being subjected by his father and the child ’ s development, t he experts concluded that his own statement should not be relevant for determination of the parties ’ parental capacities and what would be in his best interests.

15. On 5 June 2009 the presiding judge initiated the questioning of MCI expert S.N., but postponed the hearing for reasons relating to her own health.

16. On 1 July 2009 the court heard the applicant and postponed the hearing until 21 October 2009 to hear the others.

17. On 21 October 2009 the court heard the parties and expert S.N. As the child had turned ten years old in the meantime, it requested the Social Care Centre to examine the child ’ s ability to freely form and express his opinion concerning exercise of parental rights, as well as to examine whether the child ’ s opinion was in his best interests.

18. On 12 November 2009 the Rakovica Unit of the Belgrade Social Care Centre considered that any insistence on the child ’ s examination before the court would be risky and counter-productive for his emotional development. On 19 November 2009 the Marriage and Family Counselling Office of the Belgrade Social Care Centre informed the court that it had not had the necessary instruments to perform the requested tasks.

19 . On 24 November 2009 the Municipal Court adopted a judgment and in so doing, inter alia , ( i ) dissolved the parties ’ marriage; (ii) granted the applicant sole child custody and maintenance ; (iii) order ed the respondent to surrender the child to the applicant immediate ly upon receipt of the judgment ; (iv) restricted the respondent ’ s access to V.S. to two-hour meeting s on Wednesdays at the Social Care Centre ’ s premises ; and (v) declared the interim access order (see paragraph 8 above and 21 below) to be obsolete. The judgment was served on the applicant on 30 December 2009.

20. On 13 July 2010 the District Court upheld the Municipal Court ’ s judgment on appeal , as the Supreme Court of Cassation did on 18 January 2011 .

3. The enforcement of the relevant court ’ s decisions

(a) The interim access order of 8 July 2008

21. On 8 July 2008 t he Municipal Court specified the applicant ’ s access rights during the pending summer holidays and afterwards as follows: (a) during the summer holidays, on Monday, Wednesday and Friday or from Friday afternoon to Monday afternoon of alternate weeks, as well as continuously between 1 and 15 August 2008; (b) as of 1 September 2008, entire alternate weekends and between 6 and 8 p.m. on two days during the week, as well as at specified intervals during religious and national holidays, the child ’ s birthday and the school winter holiday. It ordered the respondent to allow the applicant to take the child in front of his house on the specified days.

22. On 22 September 2008 the Belgrade Fourth Municipal Court (“the enforcement court”) ordered the enforcement of the said access order. The respondent ’ s appeal against the enforcement order was rejected on 18 May 2009.

23. The enforcement court scheduled an enforcement hearing for 5 December 2008. In the meantime, a court official informed the enforcement court that he had observed an attempt by the applicant to make contact with the child. While the respondent had brought the child to the house gate, the child refused to leave with the applicant and went back into the house.

24. On 5 December 2008 the enforcement court ordered a child support team from the V.S. ’ s school to organise his psychological preparation in order to accept the contact with his mother.

25. On 9 January 2009 the enforcement court requested the Social Care Centre to contemplate initiation of corrective monitoring of the respondent ’ s exercise of parental rights because of the respondent ’ s gross influence on the child ’ s hostility toward his mother.

26. On 7 April 2009 the Social Care Centre placed the respondent under formal corrective supervision ( korektivni nadzor nad vršenjem roditeljskog prava ) . On 19 June 2009 the Social Care Centre extended the same measure also to the applicant to enhance the parents ’ collaboration to be able to satisfy the child ’ s authentic emotional needs.

27. Due to the respondent ’ s failure to comply with the enforcement order, on 6 June 2009 the court ordered the respondent to pay a fine in the amount of RSD 150,000 within three days. On 5 October 2009 the District Court rejected the respondent ’ s appeal against the fine. On 19 February and 10 May 2010 the enforcement court ordered mandatory enforcement of the fine.

28. On 26 November 2009 the Social Care Centre asked the court to postpone the enforcement of the access order for three months due to the pending parental therapy.

29. On 12 February and 31 May 2010 the Social Care Centre informed the enforcement court that its psychological therapies in respect of the family in question had produced no results. According to their reports, the respondent had been refusing to cooperate and to encourage the child to have substantive contacts with the applicant.

30. On 28 February 2011 the enforcement court terminated ( obustavio ) the enforcement proceedings, given that the access order was not valid any longer. It explicitly continued the enforcement of the fine of June 2009 (see paragraph 34 above). The fine has apparently not been enforced to date.

( b ) The interim custody order of 11 November 2008

31. On 4 December 2008 the enforcement court ordered the enforcement of the interim custody order. The respondent appealed on 26 December 2008 claiming that the child himself did not want to live with the applicant. The appeal was rejected on 29 September 2009.

32. T he first attempt to reunite the applicant with the child took place on 22 December 2008. The enforcement judge, a bailiff, several representatives of the Social Care Centre, two uniformed policemen, three plain clothes policemen, the applicant and her lawyer all went to the respondent ’ s courtyard expecting that the child would be surrendered. The judge and the Centre ’ s representatives explained to the child in the front of the others that he should leave with his mother to her house, but the child rejected the reunion and entered the house again. T he respondent allegedly did not allow the enforcement in the house. He maintained that he had informed the child that they would come, but had not prepared him for the reunion. The enforcement judge noted that the child was not yet prepared for the transfer of custody and postponed the enforcement until January 2009 at the Social Care Centre ’ s premises. The enforcement judge requested the parties and the Social Care Centre ’ s representative to prepare the child adequately for the following reunion.

33. On 15 January 2009 the enforcement court adjourned the custody transfer scheduled for that day without furnishing any reasons to the applicant. The custody transfer scheduled for 4 February was adjourned, as the enforcement judge and police failed to appear.

34. The enforcement court scheduled the transfer of custody for 1 April 2009 at the Social Care Centre ’ s premises. No preparatory meeting was apparently organised by the Social Care Centre in the meantime. On this occasion, the child again refused to be separated from his father. The police explained that they could not remove the respondent from the premises to enable the social experts and the judge to facilitate conversation with the child without his presence. The Social Care Centre advised that psychotherapeutic support be provided for the child. The enforcement of the custody transfer was postponed.

35. On 5 June 2009 the enforcement court held a hearing. It heard an expert who stated that the child ’ s examination before the court would not be in his interests. The enforcement court appears not to have scheduled any other hearing or forcible custody transfer thereafter.

36. T he applicant petitioned the enforcement court to fine the respondent for obstructing her contacts with the child in order to compel him to surrender the child .

37. On two separate occasions in 2009 the enforcement court imposed on the respondent fines in the amounts of 10,000 and 150,000 dinars for failing to comply with the order . The respondent appealed, explaining that he could not be expected to prepare the child for the reunion with the applicant when the child did not want it and, in any event, he did not have expertise to do so. The appeal was rejected. The payments apparently have not been enforced to date.

38. On 25 March 2011 the Municipal Court terminated the enforcement proceedings since the interim custody order had become obsolete in the meantime.

(c ) T he judgment of 24 November 20 09

39. The judgment of 24 November 2009 appears to have become enforceable on 27 September 2010 and the enforcement order was issued on 29 November 2010.

40. A forcible transfer of custody was scheduled for 9 March 2011, but the child refused any kind of contact with the applicant. The court noted that the respondent had failed to prepare the child for reunion. The enforcement was adjourned.

41. On 25 March 2011 the court imposed a fine on the respondent in the amount of 100,000 dinars. It also ruled that the respondent was to be given three days as of the date of receipt of this order to surrender the child voluntarily and added that, should he fail to do so, he would have to pay a further fine of 150,000 dinars. The respondent did not comply with the order. The original fine was not collected forcibly, nor was the respondent further fined for his failure to surrender the child voluntarily within three days.

42. The enforcement proceedings are pending to date.

( d ) The applicant ’ s contact with the child

43. It would appear that between August 2008 and March 2011 the applicant was only able to see her son with the respondent and/or the Social Care Centre ’ s representatives being present and for short periods of time. They have not achieved mutual communication during these very rare contacts at the respondent ’ s house gate or in the Social Care Centre ’ s premises. She attempted to approach the child at his school, but he rejected any contact.

( e ) Additional information as regards the enforcement proceedings

44. The applicant complained on several occasion about the respondent State ’ s failure to enforce the said interim order s to the various ministries, the People ’ s Office of the State President and the Ombudsperson Office. On two occasions in 2009 , the Deputy Ombudsperson requested information from the Social Care Centre on the steps that they had undertaken to facilitate reunion of the applicant with the child. The Ombudsperson also reminded the Social Care Centre ’ s officials of their powers under domestic law and of measures that they could have envisaged to enable such a reunion.

4 . Criminal proceedings against the respondent

45 . On 29 August 2008 and 23 June 2009 the applicant filed criminal complaints against the respondent for parental child abduction and his continuous non-compliance with the interim access and custody orders respectively. On 2 June 2009 and 28 September 2010 the Belgrade Second Municipal Prosecutor ’ s Office charged the applicant with those crimes. None of the scheduled hearings was held. In September 2011 the Court of First Instance stayed the criminal proceedings as the Prosecutor ’ s Office had failed the charges. The applicant subsequently took over the prosecution as subsidiary prosecutor. On 20 June 2012 the court of first instance acquitted the respondent.

46. On 10 October 2011 the applicant filed a new criminal complaint against the respondent for obstructing the enforcement of the custody decision, under Article 191 § 1 of the C riminal Code.

5 . The constitutional avenue

47 . On 28 December 2009 the applicant filed a constitutional appeal with the Constitutional Court of Serbia ( Ustavni sud Republike Srbije ). She relied on various Articles of the Constitution (see B.1 in the “Relevant domestic law” below) , Articles 6, 8 and 13 of the Convention and Articles 3 and 9 the UN Convention on the Rights of the Child. She sought redress for the protracted length of the custody and criminal proceedings and non-enforcement of the court decisions in her favour , which allegedly violated her right to a fair trial and right to family life. She also complained that she had not had any legal avenue to expedite those proceedings.

48 . On 22 July 2010 the Constitutional Court rejected the applicant ’ s complaint s.

49. As regards the protracted length of the custody proceedings, the Constitutional Court, taking into account as relevant the period between 19 May 2008 and 28 December 2009 (see paragraphs 5 and 44 above), considered that the first-instance court had acted diligently, without any substantial periods of inactivity. It found the case to have been particularly complex, as the expert findings on the best interests of the child and the latter ’ s own wish as to whom he would live with had been contradictory.

50. It further observed that the non-enforcement of the interim access and custody orders, in the same period, had been attributable to the particular complexity of the case as the child had objected to being reunited with the applicant. It found that the enforcement court had undertaken, without any delay, all necessary measures, including fining of the respondent, to enforce effectively the applicant ’ s rights.

51. In view of the above-mentioned conclusions, the court found it unnecessary to examine the applicant ’ s complaints about the ineffective criminal proceedings and lack of a legal remedy to expedite the various proceedings. The decision was dispatched on 25 October 2010.

6 . The second set of custody proceedings (the revision of the judgment of 24 November 2009)

52 . On 9 February 2011 the respondent filed a claim ( tužba ) for revision of the judgment of 24 November 2009 , seeking sole custody of V.S . He also requested an interim custody order to the same effect .

53. On 24 June 2011 the Social Care Centre provided the Belgrade Court of First Instance with an expert opinion . The Social Care Centre acknowledged that there had been no available mechanisms for a forcible physical transfer of child custody to the applicant in view of the respondent ’ s refusal. According to the report, the only feasible proposal would be that the child remain ed living with his father . Although, in view of the chronology of events, parental capacity, justice and equity, the opposite proposal would be appropriate, it could propose only this arrangement “not as an expression of their wish, but as the only solution which is possible to impose and enforce in practice”. The change of residence would have a negative impact on the child ’ s development in any event.

54. On 20 June 2012 the Belgrade Court of First Instance granted sole custody to the respondent, ordered the applicant to pay child maintenance and specified the applicant ’ s access rights as eight hours every weekend, as well as specified periods of school holidays.

55. The case is pending on appeal.

COMPLAINTS

Relying on Articles 6 and 8 of the Convention, the applicant complains about the protracted length of the custody proceedings, as well as that the Serbian authorities failed to take all necessary steps to enforce the two interim orders of 2008 in order to enable her to effectively exercise her parental rights .

QUESTIONS TO THE PARTIES

1. Has there been a violation of Article 6 § 1 of the Convention? In particular, does the non-enforcement of the interim access and custody orders of 8 July and 11 November 2008 respectively amount to a breach of this provision? Furthermore, has the length of the first set of custody proceedings been excessive and, as such, in breach of the “reasonable time” requirement contained in Article 6 § 1 (see, for example, Laino v. Italy [GC], no. 33158/96, § 22, ECHR 1999 ‑ I ; Johansen v. Norway , 7 August 1996, Reports of Judgments and Decisions 1996 ‑ III, § 88 ; V.A.M. v. Serbia , no. 39177/05, §§ 57-8 104-111; and Veljkov v. Serbia , no. 23087/07 , §§ 85-91 , 19 April 2011 )?

2 . Has there been a violation of Article 8 of the Convention? In particular, has the applicant suffered a breach of her right to respect for her family life as a consequence of the respondent State ’ s failure to enforce the interim access and custody order s of 8 July and 11 November 200 8 respectively ( see, mutatis mutandis , V.A.M. v. Serbia , no. 39177/05, § § 140-4 , 13 March 2007; Tomić v. Serbia , no. 25959/06, §§ 10 0 -5, 26 June 2007; Felbab v. Serbia , no. 14011/07, § 67, 14 April 2009 ; KrivoÅ¡ej v. Serbia , no. 42559/08 , § 52 -54 , 13 April 2010 ; see, by contrast, Veljkov v. Serbia , cited above , §§ 97-112, and Damnjanović v. Serbia , no. 5222/07, § 80-2, 18 November 2008 ; see also Hokkanen v. Finland , 23 September 1994, § 58, Series A no. 299 ‑ A; Nuutinen v. Finland , no. 32842/96, §§ 127-128, ECHR 2000-VIII; Glaser v. the United Kingdom , no. 32346/96, § 66, 19 September 2000; Hansen v. Turkey , no. 36141/97, §§ 97-99, 23 September 2003; Kallo v. Hungary ( dec. ), no. 70558/01, 14 October 2003 ; Eberhard and M. v. Slovenia , no. 8673/05 and 9733/05 , §§ 133-7, 1 December 2009, and Pini and Others v. Romania , nos. 78028/01 and 78030/01, §§ 176-188, ECHR 2004 ‑ V (extracts) ) ?

Additional questions to the Government of facts and domestic law

1. What was the reason for the simultaneous enforcement of the access and custody orders? Was it in accordance with domestic law?

2. In view of the contents of the Social Care Centre ’ s report of 24 June 2011 (see paragraph 53 of the attached report), t he Government are further requested to explain the procedural and other measures available to the judicial, social welfare and law enforcement authorities in domestic law at the material time for enforcing custody arrangements such as the present one, i.e. in cases in which a parent allegedly refuses to cooperate or obstructs the enforcement of the custody decision in favour of the other parent or where the child/ ren object/s to be ing reunited with the parent who ha s been awarded custody? The Government are invited to submit relevant legislation demonstrating that the judicial and the social/children care systems were organised in such a way as to enable the domestic courts/competent authorities to comply with the positive obligations inherent in effective “respect” for family life before and after 2005.

3. What steps could th e relevant authorities take that they did not take in this case , and if any, what were the reasons not to take them (please substantiate with relevant documents, if any; see also paragraph 44 of the attached draft)? Could the relevant judicial authorities set up a timetable of hearings and/or an action plan together with the social welfare officers to ensure the case proceeded with all the necessary speed when enforcing the custody/access orders?

4. What was the frequency of the meetings and the measures taken by the Social Care Centre within the formal corrective supervision ( korektivni nadzor nad vršenjem roditeljskog prava ) that the applicant and the respondent had undergone (see paragraphs 26 and 28-9 of the attached report) ?

5. Following the enforcement judge ’ s request that preparatory meetings with the child V.S. be held (see paragraphs 24 and 32 of the attached report) , what was their frequency and what kind of measures were taken in that respect?