FIRST SECTION

Application no. 10140/13 Vesna KRUŠKIĆ and others against Croatia lodged on 17 December 2012

STATEMENT OF FACTS

The applicants Ms Vesna Kruškić (“the first applicant”), Mr Nikola Kruškić (“the second applicant”), Ms Emanuela Kruškić (“the third applicant”) and Mr Nikola Kruškić (“the fourth applicant”) are Croatian nationals who were born in 1966, 1961, 2006 and 2005 respectively, and live in Mirkovci . They are 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 applicants, may be summarised as follows.

The first and second applicants are grandparents of the third and fourth applicants. They have been living together from the children ’ s birth.

On 18 January 2007 K., the third and fourth applicants ’ mother, left the respective household.

On 25 August 2011 I., the third and fourth applicants ’ father and the first and second applicants ’ son, left the househo ld as well and started an extra ‑ marital relationship with B.

On 25 October 2011 the first and second applicants reported the fact that the third and fourth applicants had been abandoned by both parents to the Vinkovci Social Welfare Centre ( Centar za socijalnu srkb Vinkovci ).

On an unspecified date I. registered the residence of the third and fourth applicants at his address in Vinkovci .

1. Proceedings concerning the placement of the third and fourth applicants into care of the first and second applicants

Pursuant to the inactivity of the Vinkovci Social Welfare Centre, the first and second applicants instituted non-contentious proceedings in the Vinkovci Municipal Court ( Općinski sud u Vinkovcima ) against K. and I., seeking the placement of the third and fourth applicants into their care.

On 20 March 2012 the Vinkovci Municipal Court declared the first and second applicants ’ action inadmissible, due to the lack of standing. In so deciding, the Vinkovci Municipal Court relied on section 103 of the Family Act ( Obiteljski Zakon ) which allows such actions only if they were brought by parents, children or a Social Welfare Centre.

By a judgment of 4 June 2012 the Vukovar County Court ( Županijski sud u Vukovaru ) dismissed the first and second applicants ’ appeal and upheld the first-instance judgment.

The first and second applicants ’ constitutional complaint was dismissed by the Constitutional Court ( Ustavni sud Republike Hrvatske ) on 3 O ctober 2012.

2. Proceedings concerning the placement of the third and fourth applicants into care of I.

On an unspecified date, I. instituted non-contentious proceedings in the Vinkovci Municipal Court, seeking the placement of the third and fourth applicants into his care.

On 7 February 2012 the Vinkovci Municipal Court accepted I. ’ s action, after a favourable opinion of the psychologist and the social worker from the Vinkovci Social Welfare Centre.

On 18 April 2012 the Vukovar County Court dismissed K ’ s appeal and upheld the first-instance judgment.

It appears that the applicants were not involved in these proceedings.

3. Proceedings concerning the handover of the third and fourth applicants

On an unspecified date, I. instituted non-contentious proceedings in the Vinkovci Municipal Court ( Općinski sud u Vinkovcima ) against the first and second applicants, seeking the handover of the third and fourth applicants.

On 6 April 2012 the Vinkovci Municipal Court accepted I. ’ s action, relying on his statutory parental rights, the fact that there were no legal grounds for the first and second applicants to keep the third and fourth applicants, and a favourable opinion of the Vinkovci Social Welfare Centre given in the previous set of proceedings.

On 28 June 2012 the Vukovar County Court dismissed the first and second applicants ’ appeal and upheld the first-instance judgment.

On 11 July 2012 the Constitutional Court dismissed the first and second applicants ’ constitutional complaint against the first-instance judgment.

On 31 October 2012 the Constitutional Court dismissed the first and second applicants ’ constitutional complaint against the second-instance judgment.

4. Criminal proceedings against the first and second applicants

On an unspecified date, I. lodged a criminal complaint with the Vinkovci Municipal State Attorney ’ s Office ( Općinsko državno ovdjetništvo Vinkovci ) against the first and second applicants, accusing them of the abduction of his children.

The Vinkovci Municipal State Attorney ’ s Office questioned the first and second applicants on 24 October 2012.

It appears that the proceedings are still pending.

5. Enforcement proceedings

On 23 April 2012 the Vinkovci Municipal Court issued a writ of execution ( rješenje o ovrsi ), ordering the first and second applicants to hand over the third and fourth applicants to I.

The enforcement was scheduled for 3 May 2012. After the conversation between the employee of the Vinkovci Social Centre and the third and fourth applicants the enforcement was adjourned, since they were deemed incapable of leaving their grandparents ’ household.

On 4 May 2012 the fourth applicant was examined by a pediatritian because of the vomiting, nose bleeding and fear of the possible move from the first and second applicants ’ house to I. The pediatritian ordered a psychiatric examination.

On 7 May 2012 the fourth applicant was examined by a psychiatrist, who ordered a treatment with oxazepamum after he complained about insomnia and nightmares about I.

On 16 May and 10 July 2012 the fourth applicant was examined by a psychologist who urged the competent authorities to protect him from fear and from I., who should offer him security, but is in fact a source of trauma.

On 10 July 2012 the Vukovar County Court, acting on the first and second applicants ’ appeal, quashed the writ of execution and remitted the case.

In fresh proceedings, a hearing was held on 1 October 2012. Applicants and I. were heard.

The relevant part of the third applicant ’ s statement reads:

“I live with my grandmother and grandfather. My grandmother takes care of me and my grandfather has to work a lot. I don ’ t like my father, since he was beating us, even with his belt, and made us sleep on the floor ... I ’ m afraid of him and I don ’ t even know B. I would not want to live with him even if he bought us a whole room full of candies and toys. I think he would beat us and make us sleep on the floor again ...”

The relevant part of the fourth applicant ’ s statement reads:

“... I would not like to live with my father, since he was beating us when he lived with us and was constantly pushing me away from him ... I ’ m afraid of my father, when they came from the court I was frightened since I thought we would have to live with him....when they came for me, I had a bleeding nose and I was vomiting, so my grandmother took me to a doctor ... Last night I wet my bed since I had a dream that my father would come and take me away...”

On 22 March 2013 the Vinkovci Municipal Court issued a fresh writ of execution, ordering the following:

- in April 2013, meetings of I. and the third and fourth applicants every Wednesday at the Psychiatric Ward of the Vinkovci General Hospital ( Odjel za duševne bolesti Opće bolnice Vinkovci ), due to the need for the expert supervision of meetings and unlikelihood of I. being able to enter the first and second applicants ’ household;

- in May 2013, meetings of I. and the third and fourth applicants every Wednesday for four hours, every Saturday between 9 am and 7 pm, and every Sunday between 9 am and 7 pm;

- in June 2013, meetings of I. and the third and fourth applicants every Wednesday for four hours, and every weekend from Saturday 9 am until Sunday 7 pm;

- final relocation of the third and fourth ap plicants to the care of I. on 1 July 2013.

In so deciding, the Vinkovci Municipal Court relied on the opinion of two court experts in psychology and psychiatry. They had found, inter alia , that the statements of the third and fourth applicants had been formed under the emotional and manipulative pressure of the first and second applicants, that I. was generally fit for parenthood, that the desire of the third and fourth applicants to live with the first and second applicants was not in their own interest and recommended a gradual transition of the third and fourth applicants to I., due to their strong emotional connection with the first and second applicants.

It appears that the first and second applicants lodged an appeal against the writ of execution and that the proceedings are still pending.

B. Relevant domestic law

The Family Act

The relevant provisions of the Family Act ( Obiteljski zakon , Official Gazette nos. 163/03, 17/04, 136/04, 107/07, 57/11, 61/11) read as follows:

Section 102

“The court shall, on a request by a parent, child or a Social Welfare Centre, if it is justified by significantly altered circumstances, reach a new decision on the parent with which the child shall live with and on the meetings and association of the child with the other parent, and if necessary on other substantial matters of parental care.”

Section 103

“(1) The Social Welfare Centre shall promptly, and at the latest within eight days after finding that both parents were absent, prevented from or, for health or similar reasons, incapable to care for a child, and have not placed it into care of a person who meets the conditions for a guardian, place the child, even without the parental consent, into the care of another person, a children ’ s home or another legal entity that carries out social welfare activities.

(2) A decision from the first paragraph may rema in in force for a maximum of 60 days.

(3) An appeal against a decision from the first paragraph does not delay its enforcement.

(4) If a Social Welfare Centre finds the circumstances under the first paragraph have continued after the lapse of the period from the second paragraph, it shall promptly decide on the custody of the child.

(5) If the parents bring request that the child be given into their care and to that the decision on custody is annulled, and the Social Welfare Centre finds such request contrary to the child ’ s interest, it shall request a competent court to adoption a measure for the protection of the well-being of the child.

(6) If the Social Welfare Centre does not institute court proceedings within 15 days of the parents ’ request, the parents may request a court that the child is given to their care.”

Section 106

“If a child stays without legal basis with a person who refuses to hand it over, the court shall in non-contentious proceedings, on a request by a parent, the child or a Social Welfare Centre, promptly decide to take the child away from such a person.”

COMPLAINTS

The applicants complain that the decisions of the domestic authorities to (a) deprive the first and second applicants of a possibility to obtain the right to care about the third and fourth applicants; (b) place the third and fourth applicants into I. ’ s care; and (c) order the relocation of the third and fourth applicants to I. ’ s household violated their right to respect for their family life.

The applicants also complain about the lack of an effective remedy against the inactivity of the Vinkovci Social Welfare Centre after it was informed that both parents had abandoned the third and fourth applicants.

QUESTIONS TO THE PARTIES

1. Has there been a violation of the applicants ’ right to respect for their family life, contrary to Article 8 of the Convention?

2. Is there an “effective” domestic remedy against the Social Welfare Centre ’ s failure to act in accordance with the Family Act, after it was informed that the third and fourth applicants had been abandoned by both of their parents?

The Government are requested to submit two copies of the entire case file in three sets of non-contentious proceedings (placement of third and fourth applicants into the first and second applicants ’ care, placement of third and fourth applicants into I. ’ s care and the handover of third and fourth applicants), criminal proceedings against the first and second applicants and enforcement proceedings for the execution of the handover.