SECOND SECTION

Application no. 56065/10 Mirjana MILOVANOVIĆ against Serbia lodged on 14 September 2010

STATEMENT OF FACTS

The applicant, Ms Mirjana Milovanović , is a Serbian national, who was born in 1964 and lives in Belgrade . She is represented before the Court by Mr Z. Tošković , a lawyer practising in the same town.

A. The circumstances of the case

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

The applicant and her husband, M.M., lived in Belgrade and in 1996 had twins, a boy and a girl. The applicant left M.M. ’ s house with her daughter at the end of 2000. Her son joined them in her parents ’ house in September 2002 when both children enrolled at school. On an unspecified date in January 2003, when both parents were taking the children to a doctor, M.M. ejected the applicant from the car and has prevented any future contact between her and their children since then.

1. Civil proceedings (child custody and maintenance, including adoption of an interim order)

On an unspecified date in 2002, the applicant lodged a civil claim against M.M. (hereinafter “the respondent”) with the then Second Municipal Court ( Drugi opštinski sud ) in Belgrade (“the Municipal Court”), seeking dissolution of her marriage, sole custody of both children and child maintenance ( razvod , vršenje roditeljskog prava i izdržavanje ).

On 10 June 2002 the Municipal Court dissolved the applicant ’ s marriage and decided on the custody of the children, the access rights and child maintenance.

On 5 September 2002 the District Court ( Okružni sud ) in Belgrade upheld the dissolution of the marriage and quashed the remainder.

On an unspecified date thereafter, the applicant requested interim custody of the children until the conclusion of the civil proceedings.

On 27 February 2003 the Municipal Court granted the interim custody sought by the applicant ( privremena mera o vršenju roditeljskog prava ) and, in so doing, specifically ordered the respondent to hand over the children to the applicant, within 24 hours, pending the final outcome of the ongoing civil proceedings.

On 6 October 2005 the Municipal Court ( i ) granted sole custody ( poverio decu na negu , staranje i vaspitavanje ) to the applicant; (ii) specified the respondent ’ s access rights; (iii) ordered the respondent to pay child maintenance; (iv) prohibited contacts between the respondent and the children for a period of three months to enable the children to restore the bond with the applicant. The court specified, inter alia , that the respondent ’ s very negative behaviour and appalling living conditions, especially the hygiene in his house, required the children ’ s immediate removal.

This judgment became final on 16 November 2006 (as previously the court bailiffs had apparently tried unsuccessfully to serve the judgment on the respondent) and enforceable on 9 January 2007.

2. Civil proceedings for the revision of the judgment of 6 October 2005

On 3 June 2008 the respondent filed a claim ( tužba ), seeking revision ( izmenu ) of the judgment of 6 October 2005.

On 10 June 2010 the Rakovica Social Care Centre ( Gradski centar za socijalni rad – odeljenje u Rakovici ) submitted an updated opinion to the Court of First Instance ( Prvi osnovni sud ) in Belgrade [1] , stating that, taking into account that there had been no regular or substantial contact between the applicant and her children, it was in the latter ’ s best interest to remain living with the father.

On 23 June 2010 the Court of First Instance granted custody to the respondent and ordered the applicant to pay child maintenance.

On 8 December 2010 the Court of Appeal ( Apelacioni sud ) in Belgrade quashed the judgment of 23 June 2010 and remitted the case with numerous instructions to the lower court on how to examine it thoroughly.

These civil proceedings are pending at the first instance.

3. The enforcement of the interim custody order and of the civil judgment of 6 October 2005

On 18 June 2003 the applicant requested the enforcement of the interim order of 27 February 2003.

On 5 September 2003 the Fourth Municipal Court ( Četvrti opštinski sud ) in Belgrade (hereinafter “the enforcement court”) issued an enforcement order to that effect (I-IV-879/03).

The first two attempts to reunite the applicant with the children took place on 2 December 2003 and 30 November 2004 respectively, but the respondent ’ s house was found vacant.

Following a call by the Ministry of Justice, the enforcement court scheduled the transfer of custody to be carried out on 9 May 2005. However, it would appear that on that date the Rakovica Social Care Centre failed to send its team of experts. The applicant refrained from taking custody of the children in order to avoid any possible trauma without psychologists being present to provide adequate assistance to the children if needed.

The enforcement court scheduled another reunification for 3 June 2005 at the school premises. While the court ’ s bailiffs, the police officers, the applicant and the children were present, t he Rakovica Social Care Centre appears to have sent for this occasion a Centre ’ s lawyer rather then its team of experts. The children apparently objected to being reunited with the applicant and the applicant again refrained from taking them forcibly, given the absence of the psychologists and other competent experts.

On 18 July 2005 the applicant requested the Rakovica Social Care Centre to assist and provide its team of experts for the next transfer of custody in order to enable an effective enforcement of the interim custody order.

On an unspecified date thereafter, the Municipal Court provided an expert report from the Rakovica Social Care Centre. The report stated that, due to the long-lasting separation of the children from their mother, they had a perception about their father as the only parent interested in raising them and that, therefore, the children should not be separated from him.

In view of this report, on 16 September 2005 the Municipal Court terminated the enforcement proceedings.

The applicant received this decision three months later and on 21 December 2005 complained against it ( izjavila prigovor ).

On 10 April 2006 the decision 16 September 2005 was quashed.

In the meantime, on 28 February 2006 the Social Care Centre adopted of its own motion a decision on corrective monitoring of the respondent ’ s exercise of parental rights and requested him to attend meetings at the Mental Health Institute. The reasons for this measure were the respondent ’ s continuing reluctance to enable contacts between the applicant and their children, instilling negative attitudes towards their mother and the prevention of any emotional and caring links between them , unwillingness to respect the interim custody order and disregard for the Centre ’ s warning about the detrimental effects of such behaviour on his children ’ s development. It would appear that this measure has not been enforced to date.

On 19 February 2008 the enforcement court terminated the enforcement of the interim custody order of 27 February 2003, since it was no longer valid following the conclusion of the civil proceedings. On the same date, that court requested the applicant to submit a new enforcement request within three days in view of the final judgment in her favour.

Following the applicant ’ s request of 27 February 2008 for enforcement of the judgment of 6 October 2005, the Municipal Court issued an enforcement order on 13 March 2008.

It would appear that there was another unsuccessful attempt at reunification between the applicant and her children on 8 April 2010.

4. Additional facts as regards the enforcement proceedings

The applicant complained about the respondent State ’ s failure to enforce the said interim custody order and the final civil judgment to: ( i ) the President of the Fourth Municipal Court on 30 October 2006; (ii) the President of the District Court in Belgrade on 19 January 2007 ; and (iii) the Ministry of Justice on 25 April 2005. She also requested the support and engagement of the Rakovica Social Care Centres on several occasions.

5. The respondent ’ s criminal conviction and subsequent criminal charge

On 27 May 2005 the Second Municipal Public Prosecutor Office ( Drugo opštinsko javno tužilaštvo ) in Belgrade indicted the respondent for child abduction between 16 June 2003 and the date of indictment, namely 27 May 2005.

On 16 June 2006 the Second Municipal Court in Belgrade found the respondent guilty of parental child abduction between 16 June 2003 and 27 May 2005, the latter being the date of indictment, and sentenced him to four months in prison, suspended for two years. It would appear that this judgment was served on the respondent on 11 October 2006 and became final on 19 October 2006.

On 14 March 2007 the applicant filed a criminal complaint against the respondent for his failures to surrender their children to her. It would appear that the respondent has again been charged with child abduction and the criminal proceedings against him are still pending.

6. The constitutional avenue

In the meantime, on 24 February 2009 the applicant filed a constitutional appeal with the Constitutional Court of Serbia ( Ustavni sud Republike Srbije ), seeking redress for the non-enforcement of the final custody judgment and the prior interim custody order, as well as the protracted length of the pending criminal proceedings concerning child abduction.

The Constitutional Court appears to have to date not adopted a decision in the applicant ’ s case.

7. Proceedings for deprivation of parental rights

On an unspecified date in 2007, the Rakovica Social Care Centre instituted proceedings against the respondent, requesting that he be deprived of his parental rights ( roditeljsko pravo ) because of his abusive behaviour and child abduction. The applicant joined the proceedings as an intervener ( umešač ).

On 8 September 2008 the competent court deprived the respondent of his parental rights, but it would appear that this decision was subsequently quashed and that the said Centre withdrew its initial request.

8. Other relevant facts

It would appear that the respondent has not allowed the applicant any access to the children since January 2003. She has, however, apparently been seeing them during the school recesses on weekdays.

At the beginning of April 2005, the respondent ’ s neighbour filed a complaint ( podnela prijavu ) to the Social Care Centre alleging different kinds of child abuses. After the complaint was transferred to the police on 5 April 2005, they appear to have refused to investigate allegations due to alleged formal deficiencies in the complaint.

The applicant maintains that a psychologist of the Rakovica Social Care Centre filed a criminal complaint against the respondent for threatening her own children.

COMPLAINTS

Relying on Articles 1, 4, 6, 7, 12 and 13 of the Convention, the applicant complains that due to the ongoing non-enforcement of the final custody judgment of 6 October 2005, as well as the respondent State ’ s prior failure to enforce the interim custody order of 27 February 2003, she has been denied access to her children and prevented from exercising her parental rights in accordance with the relevant domestic legislation, the court ’ s decisions and her right to family life. She also complains about the protracted length of the proceedings before the Constitutional Court of Serbia.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, has the length of the proceedings before the Constitutional Court exempted her from exhausting the constitutional appeal in the present case? In addition, the Government are invited to clarify and document whether the Constitutional Court ’ s competence extends to the interim custody order of 27 February 2003.

2. Has there been a violation of Article 6 § 1 of the Convention? In particular, does the non-enforcement of the final custody judgment of 6 October 2005 and/or of the prior interim custody order of 27 February 2003 amount to a breach of this provision (see, mutatis mutandis , Tomić v. Serbia , no. 25959/06, §§ 88-91, 26 June 2007, and Veljkov v. Serbia , no. 23087/07 , §§ 86-91, 19 April 2011 )? Furthermore, has the length of the proceedings before the Constitutional Court been excessive and, as such, in breach of the “reasonable time” requirement contained in Article 6 § 1 ( see Oršuš and Others v. Croatia [GC], no. 15766/03, §§ 108-9, ECHR 2010) ?

3. 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 custody order of 27 February 2003 and/or the final custody judgment of 6 October 2005 (see, mutatis mutandis , Tomić v. Serbia , no. 25959/06, §§ 103-5, 26 June 2007; V.A.M. v. Serbia , no. 39177/05, § § 140-4 , 13 March 2007; see, by contrast, Veljkov v. Serbia , cited above , §§ 97-112, and Damnjanović v. Serbia , no. 5222/07, § 80-2, 18 November 2008)?

[1] It would appear that, following the judicial reform, the Court of First Instance in Belgrade has become the competent court in this case.