FIRST SECTION

Application no. 10161/13 M . and M . against Croatia lodged on 3 January 2013

STATEMENT OF FACTS

The applicants (daughter and mother), are Croatian nationals, who were born in 2001 and 1976 respectively and live in Zadar . They are represented before the Court by Mr I. Jelavić , an advocate practising in Zagreb.

A. The circumstances of the case

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

On 23 June 2001 the second applicant married Mr I.M.

On 4 September 2001 the second applicant gave birth to the first applicant.

By a judgment of 24 August 2007 the Zadar Municipal Court ( Općinski sud u Zadru ): (a) granted the divorce between the second applicant and I.M.; (b) awarded I.M. the sole custody of the first applicant; (c) granted the second applicant access (contact) rights in respect of the first applicant; and (d) ordered the second applicant to make regular maintenance payments for the first applicant. The judgment became final on 2 January 2008.

On 1 February 2011 I.M. allegedly hit the first applicant several times in the face and squeezed her throat while verbally abusing her, as a result of which she was later on diagnosed by an ophthalmologist with bruising of the eyeballs and eye socket tissue.

The next day the police was informed of the incident. The police questioned the first applicant who in her statement before the police also mentioned other instances of physical and psychological violence by her father in the past three years. Despite that, at the intervention of an employee of the competent social welfare centre, she was returned to her father I.M.

On 19 February the first applicant was, at the initiative of the second applicant, examined by a psychiatrist who diagnosed her with “ abused child ”.

On 5 March 2011 the first applicant was examined by a psychologist who in her opinion stated that she was traumatised child and that her biggest wish was “ to live with her mother and her family and finds it difficult to return to her father ’ s home ”.

On 22 September 2011 the Zadar Social Welfare Centre ( Centar za socijalnu skrb Zadar ) issued a decision imposing a child-welfare-protection measure of supervision of the exercise of parental authority by the second applicant and I.M. in respect of the first applicant for the period of one year.

1. Non-contentious proceedings for altering the decision on child custody

Meanwhile, on 30 March 2011 the second applicant, relying on the above evidence, instituted non-contentious proceedings before the Zadar Municipal Court with a view to altering the above judgment of the same court of 24 August 2007 and awarding the sole custody of the first applicant to the second applicant. At the same time the second applicant asked the court to issue a provisional measure whereby it would temporarily award her the sole custody of the first applicant pending the final outcome of the non-contentious proceedings on child custody.

On 29 April 2011 the court held a hearing.

On 6 and 16 June the court decided to obtain a combined expert opinion from court experts in psychiatry and psychology.

In their opinion of 29 December 2011 the experts, while taking into account the above mentioned instance of physical violence of 1 February 2011, found that: (a) the first applicant clearly demonstrated the wish to live with her mother, (b) she was emotionally traumatised, (c) both her mother and her father suffered from personality disorders and had limited parenting capacities, which reduced their abilities to adequately raise her. The experts recommended: (a) that the first applicant should, nevertheless, for the time being, remain living with her father I.M. while maintaining extensive contacts with her mother, (b) that both or her parents and herself should undergo a therapeutic treatment and counselling, (c) to continue with the supervision of the exercise of parental authority by her parents imposed by the competent social welfare centre, and (d) to re-examine the first applicant and her parents after a year. In particular, the experts concluded:

“We do not find [any] contraindications for [the child] to live with her father. [Our] recommendation is that, for the time being, it is not necessary or desirable to change the child ’ s residence, that is to say, that [the child] should continue living with her father.”

It would appear that the proceedings are still pending and that the court did not yet decide on the second applicants ’ request for a provisional measure.

2. The applicants ’ attempts to have the criminal proceedings instituted against I.M.

On 22 April 2011 the second applicant filed a criminal complaint against her former husband I.M. with the Zadar Municipal State Attorney ’ s Office ( Općinsko državno odvjetništvo u Zadru ) accusing him of having committed a criminal offence of child abuse defined in Article 213 paragraph 2 of the Criminal Code. In particular, the second applicant argued that he had physically and psychologically abused the first applicant by: (a) in the period between February 2008 and April 2011, inter alia , cursing her and calling her names, frequently forcing her to eat food she did not like and force-feeding her when she refused, threatening that he would hit her, cut her long hair and make it happen that she never sees or hears from her mother, hitting her with a hair brush on one occasion, etc., and (b) on 1 February 2011 hit the first applicant several times in the face and squeezed her throat while verbally abusing her, as a result of which she was later on diagnosed by an ophthalmologist with bruising of the eyeballs and eye socket tissue.

On 30 March 2011 the Zadar Municipal State Attorney ’ s Office informed the second applicant that on the same day it had, concerning the incident of 1 February 2011, indicted I.M. before the Zadar Municipal Court for having committed a criminal offence of bodily injury defined in Article 98 of the Criminal Code. On 19 April 2011 the court issued a penal order ( kazneni nalog ) against I.M., finding him guilty as charged and imposing a fine of 1,820 Croatian kunas (HRK). On 4 May 2011 I.M. lodged an objection against the penal order arguing that the facts on the basis of which the court issued the order were not true. The outcome of these proceedings is unknown.

On 16 January 2012 the Zadar Municipal State Attorney ’ s Office dismissed the remainder of the second applicant ’ s criminal complaint, that is, the part of it concerning the alleged abuse of the first applicant in the period between February 2008 and April 2011. In so doing the State Attorney found that there were no sufficient elements to suspect that I.M. had committed the criminal offence the second applicant had accused him of.

The first and the second applicants then decided to take over the prosecution from the State Attorney ’ s Office as injured parties in the role of (subsidiary) prosecutors. As the Criminal Procedure Act requires that the accused be questioned before being indicted, on 25 January 2012 the applicants asked an investigating judge ( sudac istrage ) of the Zadar County Court ( Županijski sud u Zadru ) to question I.M.

By a decision of 9 February 2012 the investigating judge dismissed the applicants ’ request holding that the facts adduced by the applicants did not constitute the criminal offence of child abuse. In so doing he relied on the opinion of the court experts in psychiatry and psychology of 29 December 2011 obtained in the above non-contentious proceedings.

On 21 February 2012 a three-member panel of the Zadar County Court dismissed an appeal by the applicants against the decision of the investigating judge.

On 24 May 2012 the Constitutional Court ( Ustavni sud Republike Hrvatske ) declared inadmissible the applicants ’ subsequent constitutional complaint. It held that the contested decisions of the Zadar County Court did not involve determination of their rights or obligations, or of criminal charge against them, within the meaning of section 62 paragraph 1 of the Constitutional Court Act, and that therefore a constitutional complaint could be lodged against those decisions. The Constitutional Court served its decision on the applicants ’ representative on 3 July 2012.

3. Proceedings before the Ombudsman for Children

Following a petition by the second applicant, on 22 March 2012 the Ombudsman for Children, having regard in particular to the fact that the first applicant had before various authorities spoken of her father ’ s violence against her and expressed her wish to live with her mother, recommended the Zadar Social Welfare Centre to institute relevant proceedings with a view to appointing a special representative (guardian) to the first applicant to represent (only) her interests in the above non-contentious proceedings, which were in those proceedings in conflict with interests of her parents.

COMPLAINTS

1. The applicants complain that by refusing to institute criminal proceedings for the criminal offence of child abuse I.M. committed against the first applicant the State authorities failed to comply with their positive obligations either under Article 3 or under Article 8 of the Convention.

2. The applicants also complain, on account of the same facts, that they did not have access to court or an effective remedy, contrary to Article 6 § 1 and Article 13 of the Convention.

QUESTIONS TO THE PARTIES

1. Did the State authorities in the present case comply with their positive obligation under Article 3 or Article 8 of the Convention to protect the first applicant from acts of violence by her father ? In particular:

(a) Was the refusal of the domestic courts to institute criminal proceedings against the first applicant ’ s father for the criminal offence of child abuse in breach of that positive obligation?

(b) Was fining the first applicant ’ s father for having committed the criminal offence of bodily injury against her sufficient for the State to discharge the positive obligation in question?

(c) Is the length of the non-contentious proceedings for altering the decision on child custody in compliance with the positive obligation at issue?

2. Is the fact that no decision has yet been adopted on the second applicant ’ s request for a provisional measure of 30 March 2011 in breach of the State ’ s positive obligation under Article 3 or Article 8 of the Convention to protect the first applicant from violence by her father, or contrary to the second applicant ’ s right to an effective remedy under Article 13 of the Convention in conjunction with Article 8 thereof?

3. Was the first applicant appointed a special representative ( kolizijski skrbnik ) to represent her interests in the non-contentious proceedings for altering the decision on the child custody, as recommended by the Ombudsman for Children in her recommendation of 22 March 2012? In the negative, was that omission in breach of the State ’ s positive obligations under Article 8 of the Convention?

4. The Government is invited to provide the Court with the entire case-file of:

(a) The criminal proceedings instituted against the first applicant ’ s father for having committed a criminal offence of bodily injury against her.

(b) Proceedings following the second applicant ’ s criminal complaint for the criminal offence of child abuse, including the preceding police reports.

(c) Non-contentious proceedings for altering the decision on child custody.