FIRST SECTION

Application no. 770/12 Slaven RUKAVINA against Croatia lodged on 17 December 2011

STATEMENT OF FACTS

The applicant, Mr Slaven Rukavina , is a Croatian national, who was born in 1964 and lives in Zagreb .

A. The circumstances of the case

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

On 7 July 2007 the applicant married Ms S.L.

On 22 August 2007 S.L. gave birth to their daughter L.R.

On 4 May 2009 S.L., accusing the applicant of domestic violence, left the house in which she had lived with the applicant and went to a safe house. In so doing she took their daughter with her.

1. Civil proceedings for divorce and child custody

On 10 June 2009 S.L. brought a civil action against the applicant in the Sesvete Municipal Court ( Općinski sud u Sesvetama ) seeking divorce and custody of their daughter.

On 18 June 2009 the Municipal Court issued a decision whereby it provisionally regulated custody and access rights until the adoption of the final judgment on S.L. ’ s action. In particular, the court temporarily awarded the sole custody to S.L. and granted the applicant access rights allowing him to have contacts with his daughter twice a month for three hours in the premises of the association “Children First”.

Following an appeal by the applicant, on 2 March 2010 the Zagreb County Court ( Županijski sud u Zagrebu ) quashed the first-instance decision and remitted the case. It held that the first-instance court had not given sufficient reasons for its decision. In particular, the County Court found that no reasons had been given for the decision to temporarily award the custody to S.L. and saw no reason why the applicant ’ s contacts with his daughter had to be supervised. The relevant part of that decision reads as follows:

“The contested part of the decision does not contain clear and valid reasons regarding all relevant facts. Furthermore, this higher court therefore considers that the content of the case-file does not provide a sufficient support for adopting the contested decision, which thus cannot be examined. Beside that, the operative part of the contested decision is in contradiction with the reasons [given].

The clear reasons for the decision on custody and the decision on access rights are not discernible.

The first-instance court finds that the parties ’ child ‘ functions well with the mother and that the mother adequately takes care of her ’ [but] does not support that [finding] by any evidence.

Moreover ... it is clear that the father proposed to have more frequent contacts with his daughter. However, the contested part of the decision ... does not even address that proposal where [the father] suggested seeing his daughter every week for three hours. [Instead] the court in the contested part of the decision ... decided that the father should see his daughter twice a month for three hours.

This higher court also draws the attention of the first-instance court to the observations of the Social Welfare Centre regarding feasibility of contacts between the father and his daughter according to which ‘ at this moment it is not feasible that the contacts between the father and the daughter be more extensive or more frequent because it is not possible to do so [in the premises of the association] Children First ... ’ which [view] is completely unclear and unsupported by any arguments. In particular, the first-instance court did not in any way establish what kind of association is Children First, what kind of facilities it has and what are their capacities particularly for organising contacts between the father and his daughter. It is also to be noted that the first-instance court in the contested decision did not decide whether the father is to have contacts with his daughter under supervision ... or that is not necessary having regard to the part of the reasoning of the first-instance court where it [describes the applicant] as potentially aggressive.

The contested decision contradicts itself in its reasoning where the first-instance court finds that ‘ ... the court cannot rule out the possibility that the father, whom it [otherwise] assesses as caring parent, may be brought into situation where at a certain moment he shows some sign of aggression ... ’

Namely, the first-instance court has shortcomings because of which it cannot be examined particularly since it is contradictory given that the first-instance court assesses [the applicant] as ‘ caring father ’ and at the same time suspects that he could be aggressive toward the child.

Lastly, it cannot be discerned ... on the basis of what evidence the first-instance court reached that conclusion.

...

In the fresh proceedings, ... the first-instance court shall ... establish the facts correctly and give reasons on the decisive facts having regard to the bests interests of the child ..., take at the request of the parties all the necessary evidence and then, having regard also to other arguments [of the parties], decide [the case].”

It would appear that in the resumed proceedings, at the hearing held on 11 June 2010 the parties agreed that the child should temporarily remain in the custody of S.L. and that the applicant would have contacts with his daughter twice a week for two hours.

At the hearing held on 14 December 2010 the parties disagreed as to the continuation of this temporary arrangement because S.L. insisted that the applicant ’ s contacts with their daughter be supervised by an employee of the social welfare centre whereas the applicant opposed that.

On the same day the Municipal Court issued a fresh decision regulating provisionally custody and access rights. In particular, the court again temporarily awarded the sole custody to S.L. and granted the applicant access rights entitling him to have contacts with his daughter twice a week (on Tuesdays and Thursdays from 4 to 6.30 p.m.) under the supervision of an employee of the social welfare centre.

Following an appeal by the applicant, on 1 February 2011 the Zagreb County Court quashed the first-instance decision and remitted the case. The relevant part of that decision reads as follows:

“It first has to be noted that the first-instance court did not ... undertake all procedural steps and examine all issues in dispute, as it had been instructed by this court in its decision of 2 March 2010.

In particular, the contested decision does not contain clear and valid reasons regarding all relevant facts. Actually, it is not clear whether the first-instance court took all facts into account.

This higher court therefore considers that the content of the case-file does not provide a sufficient support for adopting the contested decision, which thus cannot be examined.

The clear reasons for the decision on custody and the decision on access rights are not discernible.

Although the first-instance court finds that ‘ given the age and the sex of the child, family situation of the parties, the circumstances in which the parents live and their characters, it is appropriate that the child lives with her mother ’ and, as regards the supervision of the contacts between the father and the daughter, states that ‘ having regard to all circumstances of the case, it is appropriate, primarily [in order to protect] the best interests of the child, to organise contacts under supervision, as suggested in the expert opinion and proposed by the Social Welfare Centre ’ it does not give sufficient reasons for it.

Furthermore, the case-file suggests that the defendant proposed to have contacts with his daughter more frequently, which was also proposed in the opinion of ... the Clinic for Psychological Medicine of the Zagreb Faculty of Medicine of 12 November 2010 ... where it was proposed that the contacts between L.R. and her father be organised four times a week from Monday to Friday for two and a half hours, in respect of which the first-instance court did not take any view let alone give any reasons ... even though it relies on ‘ the expert opinion of Dr. Z.K. ’

It may also be pointed out that the first-instance court in the contested decision did not give reasons why the father is entitled to pick up the child from the kindergarten alone and return the child to the mother alone, whereas he may [otherwise] have contacts with his child only under supervision.

For such a decision the first-instance court did not give any reasons ...

It is also unclear why the first-instance court rendered the contested decision at the moment when the participants in the proceedings had raised objections against the expert opinion of the Clinic for Psychological Medicine of the Zagreb Faculty of Medicine ... [and in so doing] relied on that expert opinion.

It is further to be noted that the case-file contains extensive documentation, in particular [the report] on the supervision of the exercise of the parental authority performed by the employees of the competent social welfare centre, which the first-instance court did not take account when reaching [the contested] decision.

...

In view of the reports [of the Social Welfare Centre] on the supervision of the exercise of the parental authority over L.R., this second-instance court cannot, for the time being, accept the decision of the first-instance court according to which it is necessary, in order to protect the best interests of the child, to organise the contacts [between the applicant and his daughter] under supervision ...

It follows that all decisive facts were not completely established.”

In the resumed proceedings, on 9 March 2011 the Sesvete Municipal Court issued another decision provisionally regulating custody and access rights the content of which was identical to its decision of 14 December 2010.

Following an appeal by the applicant, on 13 September 2011 the Zagreb County Court again quashed the first-instance decision and remitted the case. It again held that the first-instance decision was not sufficiently reasoned. The relevant part of that decision read as follows:

“It first has to be noted that the first-instance court did not ... undertake all procedural steps and examine all issues in dispute, as it had been instructed by this court in its decision of 1 February 2011.

In particular, the contested decision does not contain clear and valid reasons regarding all relevant facts. Actually, it is not clear whether the first-instance court took all facts into account.

This higher court therefore considers that the content of the case-file does not provide a sufficient support for adopting the contested decision, which thus cannot be examined.

The clear reasons for the decision on custody and the decision on access rights are not discernible.

In particular, the first-instance court did not critically evaluate all the circumstances relevant for bringing correct and lawful decision in this case and did not, on the basis of the evidence taken and their assessment, establish the facts correctly ...

Furthermore, the first-instance court selectively assessed the evidence taken, dropping out of sight that its decision has to be based on [the comprehensive analysis of] all the evidence taken.

The first-instance court in ... the contested decision relies on the report and the opinion of Dr. K. and then accepts [that opinion] in its entirety ‘ because it is well-reasoned, logical and persuasive ’ without giving any sensible reasons for doing so. ...

...

... [T]he first-instance court states that the expert was examined at the hearing of 14 January 2011and uncritically states that ‘ it accepts the expert opinion in its entirety because it is well-reasoned, logical and persuasive ’ without analysing it or giving arguments in support of it ...

In order to correctly apply the statutory provision on the assessment of evidence it is necessary to specify the facts the expert opinion seeks to establish and afterwards give reasons why the first-instance court accepts it as credible ...

...

Lastly ... the expert ’ s opinion is one of the evidence taken during the proceedings but not the only one, as it appears from the first-instance decision.

The first-instance court again states, as regards the supervision of the contacts between the father and the daughter, that ‘ having regard to all circumstances of the case, it is appropriate, primarily [in order to protect] the best interests of the child, to organise contacts under supervision, ’ without giving sufficient reasons for it ...

It follows that for this decision the first-instance court did not give any reasons ...

...

In view of the reports [of the Social Welfare Centre] on the supervision of the exercise of the parental authority over L.R., this second-instance court cannot, for the time being, accept the decision of the first-instance court according to which it is necessary, in order to protect the best interests of the child, to organise the contacts [between the applicant and his daughter] under supervision ...

It follows that all decisive facts were not completely established.

...

In the fresh proceedings, ... the first-instance court shall ... establish the facts correctly and give reasons on the decisive facts having regard to the bests interests of the child ..., take at the request of the parties all the necessary evidence and then, having regard also to other arguments raised in the appeal, decide [the case].”

In the resumed proceedings, on 25 November 2011 the Sesvete Municipal Court issued a new decision provisionally regulating custody and access rights in the manner identical to its two previous decisions.

On 31 January 2012 the Zagreb County Court, following an appeal by the applicant, again quashed the first-instance decision of 25 November 2011 and remitted the case. The relevant part of that decision reads as follows:

“It first has to be noted that the first-instance court did not ... undertake all procedural steps and examine all issues in dispute, as it had been instructed by this court in its decision of 1 February 2011 and its decision of 13 September 2011.

In particular, the contested decision does not contain clear and valid reasons regarding all relevant facts. Actually, it is not clear whether the first-instance court took all facts into account.

This higher court therefore considers that the content of the case-file does not provide a sufficient support for adopting the contested decision, which thus cannot be examined.

The clear reasons for the decision on custody and the decision on access rights are not discernible.

In particular, the first-instance court did not critically evaluate all the circumstances relevant for bringing correct and lawful decision in this case and did not, on the basis of the evidence taken and their assessment, establish the facts correctly ...

Furthermore, the first-instance court selectively assessed the evidence taken, dropping out of sight that its decision has to be based on [the comprehensive analysis of] all the evidence taken.

The first-instance court in ... the contested decision relies on the report and the opinion of Dr. K. who suggested that ‘ the contacts, for the time being, be organised under supervision ... because from psychological testing and clinical psychiatric examination, which consisted not only of the examination of the defendant but also of observing [his] interaction with the child ’ s mother and [his] interaction with the child, it follows that the defendant in problem situations tends to react aggressively. ’ The first-instance court also indicated ‘ that [criminal] proceedings for domestic violence are pending [against the applicant] and that the child ’ s mother lived for some time in a safe house, whereas [she] shows no signs of mental illness. ’

The first-instance court again uncritically stated that it ‘ accepts the opinion of Dr. K. and her arguments [in support] of that view and that it therefore decided that the contacts [between the applicant and his daughter] shall continue to be organised under supervision of employees of the Social Welfare Centre. ’

In order to correctly apply the statutory provision on the assessment of evidence it is necessary to specify the facts the expert opinion seeks to establish and afterwards give reasons why the first-instance court accepts it as credible ..., and not uncritically state that it accepts ‘ her arguments [in support] of that view. ’

In doing as it did the first-instance court acted contrary to ... the Civil Procedure Act because it is the court [and not the expert] that decides the case.

... In order to be able to review the [decision], its reasoning [must] contain the assessment of evidence. The reasons given by the first-instance court do not amount to any assessment of evidence.

...

Lastly ... the expert ’ s opinion is one of the evidence taken during the proceedings but not the only one, as it appears from the first-instance decision.

The first-instance court again states, as regards the supervision of the contacts between the father and the daughter, that ‘ having regard to all circumstances of the case, it is appropriate, primarily [in order to protect] the best interests of the child, to organise contacts under supervision, ’ without giving sufficient reasons for it ...

It follows that for this decision the first-instance court did not give any reasons ...

...

In view of the reports [of the Social Welfare Centre] on the supervision of the exercise of the parental authority over L.R., this second-instance court cannot, for the time being, accept the decision of the first-instance court according to which it is necessary, in order to protect the best interests of the child, to organise the contacts [between the applicant and his daughter] under supervision ...

It follows that all decisive facts were not completely established.

In the fresh proceedings, ... the first-instance court shall ... establish the facts correctly and give reasons on the decisive facts having regard to the bests interests of the child ..., take at the request of the parties all the necessary evidence and then, having regard also to other arguments raised in the appeal, decide [the case]. It is to be noted that children develop fast, [both] physically and mentally, which has to be taken into account as it may be necessary to obtain a new expert opinion on the personality of the parties ’ daughter. It also has to be taken into account that in the reports of the social welfare centre there is no indication that the father was aggressive to [his daughter] L.R. during contacts between them. Lastly, the first-instance court has to take into account already lengthy character of these proceedings.”

On 21 February 2012 the court decided to obtain an expert opinion, as instructed by the second-instance court.

In the resumed proceedings, on 26 March 2012 the Sesvete Municipal Court issued yet another decision provisionally regulating custody and access rights in respect of the applicant ’ s daughter but in different way compared to its three previous decisions. The court firstly, as it did before, temporarily awarded the sole custody of the applicant ’ s daughter to her mother S.L. Secondly, the court, for the period between 28 March and 31 May 2012, granted the applicant access rights allowing him to have contacts with his daughter twice a week (on Tuesdays and Thursdays from 4 to 6.30 p.m.) under the supervision of an employee of the social welfare centre, as well as without supervision every Friday from 3 to 8.30 p.m. and during the weekends of 20-22 April, 4-6 May and 18-20 May 2012.

Both parties appealed against that decision. It would appear that the proceedings following those appeals are still pending before the Zagreb County Court.

On 31 May 2012 the court issued a new decision provisionally regulating the applicant ’ s access rights. The court granted the applicant access rights twice a week (on Tuesdays and Thursdays from 4 to 6.30 p.m.) under the supervision of an employee of the social welfare centre, as well as without supervision every second weekend from Friday at 3 p.m. until Sunday 7 p.m.

The applicant appealed. It would appear that the proceedings are currently pending before the Zagreb County Court.

2. Criminal proceedings against the applicant for domestic violence

In 2009 the Sesvete State Attorney ’ s Office ( Općinsko državno odvjetništvo u Sesvetama ) indicted the applicant before the Sesvete Municipal Court for the criminal offence of domestic violence allegedly committed against S.L. in the period between October 2006 and May 2009.

On 13 May 2011 the Sesvete Municipal Court gave judgment whereby it acquitted the applicant. It found that he had not committed the acts of violence for which he had been charged with. In its judgment that court also stated, in passim , that the criminal proceedings against the applicant were instrumental to the dispute over custody of his daughter and that S.L. had used those proceedings in order to portray the applicant as a violent person and inadequate father, unworthy of that role, and thus prevent him from maintaining contacts with his daughter.

It would appear that the case is currently pending before the Zagreb County Court following an appeal by the State Attorney.

3. Criminal proceedings against the applicant for defamation

In 2010 S.L. brought a private bill of indictment ( privatna tužba ) against the applicant in the Sesvete Municipal Court accusing him of defamation. In particular, S.L. accused the applicant that in his numerous statements to the media given during and after his hunger strike in March 2010 he depicted her as mentally ill, a person with whom “something was wrong”, fanatic and proponent of eco-feminism.

On 22 November 2011 the Sesvete Municipal Court found the applicant guilty of defamation, sentenced him to six months ’ imprisonment but suspended the sentence ( uvjetna osuda ) for a period of two years provided that in that period he did not commit a further offence.

It would appear that the case is currently pending before the Zagreb County Court following an appeal by the applicant.

COMPLAINTS

1. The applicant complains under Article 8 of the Convention that the domestic courts in the above civil proceedings for divorce and custody violated his right to respect for his family life in that they:

(a) have not delivered a final decision on custody of his daughter since 10 June 2009;

(b) kept awarding the sole custody of his daughter to her mother even though she has been acting to her detriment by, for example, keeping her on a vegan diet;

(c) have since 18 June 2009 been ordering that all or some contacts with his daughter be supervised by an employee of the social welfare centre, which infringed the privacy of his family relations.

2. The applicant further complains under Article 14 of the Convention that he was discriminated against on ground of his sex.

3. He also complains under Article 10 of the Convention about his criminal conviction for defamation.

4. In addition, the applicant complains under Article 6 § 1 of the Convention about the unfairness of the above civil proceedings for divorce and child custody.

5. He also complains under Article 13, in conjunction with Article 8 of the Convention, that he did not have an effective remedy to complain about the violation of his right to respect for his family life, that is, a remedy that would prevent successive remittals of the case.

6. Lastly, the applicant also invokes Articles 3, 4, 5 and 17 of the Convention without specifying further these complaints.

QUESTION S TO THE PARTIES

1. Has there been a violation of the applican t ’ s right to respect for his family life , contrary to Article 8 of the Convention? In particular:

(a) Has the length of the civil proceedings in the present case been in breach of Article 8 of the Convention?

(b) Were the reasons given by the domestic courts for their provisional decisions on custody and access rights “relevant and sufficient” for the purposes of Article 8 of the Convention, having regard to repeated quashing and remittals of the first-instance decisions by the second-instance court?

2 . Having regard to successive remittals in the civil proceedings complained of, did the applicant have at his disposal an effecti ve domestic remedy for his complai nt about their length under Article 8 of the Convention , as required by Article 13 thereof ?