DISSENTING OPINION OF JUDGE DAVID THÓR BJÖRGVINSSON

I voted against the majority ’ s finding of a violation of Article 6 § 1, although admittedly more than five years before one level of jurisdiction is a long time. However, that is not in itself sufficient to find a violation of Article 6 § 1 as the reasonableness of the length of proceedings must be assessed in the light of the circumstances of each case.

At the outset I wish to make the following remarks. Firstly, since the Convention protects fundamental human rights, a violation of Article 6 § 1 on the basis of the length of proceedings should only be found in cases which reveal obvious and serious deficiencies in the workings of the domestic courts in question that amount to a denial of justice and where it can thus truly be said that the applicant ’ s fundamental procedural rights have been breached. Secondly, breaches should only be found where lengthy periods of inactivity that are clearly imputable to the State can be detected. Thirdly, the applicant has to show that he or she made some effort to have the allegedly delayed proceedings accelerated, thereby expressing an interest in having the proceedings conducted more speedily. Fourthly, the applicant has to show that he or she did not contribute significantly to the alleged delay by his or her own behaviour.

Using these criteria I come the conclusion that there has been no violation of Article 6 § 1 in this case. My reasons are the following:

Firstly, although cases concerning custody and maintenance are not complicated from a legal point of view, I would agree with the majority that they are of a sensitive nature and that they involve a certain degree of complexity (see paragraph 87 of the judgment). One of the main factors causing delays in such proceedings are expert assessments and reports that need to be made in order to assess what is in the best interest of the child, but several such reports were produced within the framework of the present case. However, in this case the complexities were mostly of a procedural nature, as shortly after the main proceedings had been instituted, the parties requested interim measures for the award of a right of access and temporary custody respectively. The proceedings ended on 14 February 2007 with the order of the District Court in Belgrade giving limited access rights to the applicant. The respondent ’ s request for interim custody was granted on 6 June 2007 by the District Court. In addition, issues concerning the enforcement of the interim access order arose (see paragraphs 47-65). Furthermore, the applicant initiated two additional sets of proceedings against the respondent, namely one for deprivation of his parental rights on 4 December 2006 and another one for an interim injunction against domestic violence on 11 September 2007. It would seem that these proceedings are still pending. Thus, in this case we have a complicated situation of various proceedings overlapping with each other, adding considerably to the overall complexity of the custody and maintenance proceedings and causing further delays.

Secondly, I disagree with the assessment of the majority that the applicant did not make a significant contribution to the procedural delay complained of, except, as stated in the judgment, “perhaps the seven days in respect of her request for the withdrawal of the presiding judge and also the adjournment of the hearing for 30 September 2009” (see paragraph 89). This assessment overlooks the fact that the applicant at the same time had initiated various other sets of proceedings against the respondent which, as stated above, unavoidably contributed to the overall delay. In addition, I note that, as stated in paragraph 34, the alleged behaviour of the applicant contributed to a delay in producing the necessary expert opinions, and that the applicant subsequently submitted objections to the expert reports. While this of course is the applicant ’ s procedural right it unavoidably causes further delays (see paragraphs 40 and 41). Furthermore, I would add that a hearing scheduled for 8 July 2009 was adjourned because the applicant had appointed a lawyer who needed some time to study the case file (see paragraph 36). This same lawyer then asked for an adjournment of the hearing scheduled for 30 September 2009 (see paragraph 37). Later, the hearing scheduled for 11 November 2009 was adjourned because of the strike by the Bar Association, of which the applicant ’ s lawyer was presumably a member. Thus, I believe the majority clearly underestimate the applicant ’ s and her lawyer ’ s contribution to the overall delay in the proceedings.

Thirdly, nowhere in the case file is it suggested that the applicant made any effort whatsoever at national level to have the proceedings accelerated.

I would agree with the majority that, as stated in paragraph 88 of the judgment, certain irregularities imputable to the State can be detected. However, taking into account the proceedings as a whole, the various overlapping sets of proceedings, the applicant ’ s own contribution to the delays and the fact that never at any stage did she make an effort to have the proceedings accelerated, I believe that these irregularities do not reveal such obvious and serious deficiencies in the workings of the domestic courts as to amount to a breach of the applicant ’ s fundamental procedural rights under Article 6 § 1 of the Convention.

[1] Following the judicial reform, the Court of First Instance in Belgrade has become the competent court in this case.