DISSENTING OPINION OF JUDGE PASTOR VILANOVA

The Court has concluded, by a large majority (five votes to two), that there has been no violation of Articles 6 and 8 of the Convention in the present case. To my regret, I cannot agree with this decision.

Our case-law has acknowledged the right to the execution of final binding judicial decisions (see, among other authorities, Hornsby v. Greece , 19 March 1997, § 40, Reports of Judgments and Decisions 1997 ‑ II), but has also found that the mutual enjoyment by parent and child of each other ’ s company constitutes a fundamental element of “family life” (see Monory v. Romania and Hungary , no. 71099/01, § 70, 5 April 2005).

In the present case, the Serbian courts granted the applicant sole custody of her nine-year-old son on two occasions (the order of 11 November 2008 and the judgment of 24 November 2009 in which she was also granted a divorce) and, prior to that, she had been granted extensive access rights (order of 8 July 2008). Nevertheless, these judicial decisions have never been effectively executed, because of obstructive manoeuvres on the part of the child ’ s father. Proof of the facts mentioned above is to be found in the remarkable reports by the Social Care Cent re issued on 12 February and 31 March 2010 (see paragraph 29 of the judgment), according to which the father had cooperated in form only, failing to take any steps to encourage any contact between the child and the applicant. Currently, the applicant visits her child for only an hour per week (see paragraph 47) after the domestic courts granted custody to the father in the judgment of 20 June 2012 ...

The Court dismissed the applicant ’ s complaints on the grounds that the Serbian authorities had done everything in their power to enforce the judicial decisions. More specifically, the majority of the Court reached this result by finding that: (a) the domestic courts had imposed fines on the child ’ s father; (b) the applicant had refused the use of forcible measures to get her son back; (c) contact between the applicant and her son had been restored gradually; (d) supervisory measures had been adopted to rebuild ties; and (e) the child wanted to remain with his father.

To my regret, I am unable to agree with that solution.

The Court ’ s case-law is well established regarding the positive obligation of States to reunite children with their parents by taking all necessary steps (see Ignaccolo-Zenide v. Romania , no. 31679/96, § 94, ECHR 2000-I, and Iglesias Gil and A.U.I. v. Spain , no. 56673/00, § 49, ECHR 2003-V). On that subject the Court has in the past noted that “the adequacy of the measures is to be judged by the swiftness of their implementation” (see Karadžić v. Croatia, no. 35030/04, § 62, 15 December 2005), with a view to avoiding the possible harmful effects that the passage of time can have on the relationship between the parent and the child (see H.N. v. Poland , no. 77710/01, § 73, 11 September 2005). Notwithstanding the margin of appreciation enjoyed by States, what is relevant is the suitability of the decisions carried out by national authorities when exercising their power of appreciation (see Hokkanen v. Finland , 23 September 1994, § 55, Series A no. 299-A).

In my humble opinion, these procedural requirements have not been met on this occasion. It is true that the judge imposed two fines amounting to 1,000 euros (EUR) and EUR 1,500 on the applicant ’ s former husband. It can be said that these measures have failed. The fines were not dissuasive, as is shown by the fact that the father decided to pay them rather than making any effort to return the child to his mother, who actually had legal custody of him. Besides, the economic capabilities of the father are not known to the Court. Regardless of this, the fines came very late (I deduce that the sums were paid, at the earliest, during the first half of 2010, whereas the order was supposed to be executed on 8 July 2008). Furthermore, despite the reluctance of the father to voluntarily execute the civil decisions adopted against him, the civil judge did not even consider initiating any criminal proceedings against him. By contrast, it was left to the applicant to institute criminal proceedings herself.

The fact that the mother rejected the use of force (in her child ’ s interests) did not exempt the judge from fulfilling the positive obligations within the meaning of Articles 6 and 8. In the light of the non-voluntary execution of the judicial decisions by the father, it was the responsibility of the judge to properly exercise the functions emanating from his authority. However, he failed to intervene properly, as he had no personal involvement in the settlement of this conflict other than an unsuccessful journey to the child ’ s (and father ’ s) home (on 22 December 2008) and to the Social Care Centre ’ s premises (on 1 April 2009). A new forcible transfer was planned to take place on 9 March 2011. We do not know the details of that last unsuccessful attempt. It is relevant to highlight that during a period of two and a half years the Serbian authorities scheduled only three dates for delivering effective justice to the applicant.

As for the argument concerning the gradual restoration of contact between mother and son, it lacks any convincing evidence.

The Court ’ s judgment says that the Serbian authorities have done their best to execute the domestic court decisions in favour of the applicant. It turns out, however, that even the Serbian Ombudsman reminded the appropriate Social Care Centre officials “of their actual powers under domestic law and of measures that they could have envisaged to enable such a reunion” (see the report of 21 April 2011 communicating the application to the Government, paragraph 44).

In the same vein, I consider that there has been a breach of Article 6 owing to the non-execution of enforceable judgments and the slowness that characterised the decision-making process in the present case. The majority of the Court consider that the overall length of the proceedings, almost three years, was due to their complexity as a result of the child ’ s refusal to live with the applicant (see paragraph 72 of the judgment). I take the opposite view, especially considering the nature of the family interests in conflict and the experts ’ conclusions (see the Mental Care Institute ’ s report of 27 May 2009, mentioned in the report communicating the application) emphasising the psychological pressure exerted by the child ’ s father that made the statement by the infant pointless.

Consequently, the dismissal of the applicant ’ s complaints amounts to legitimising the father ’ s wrongdoing, discrediting the authority of res judicata and, more importantly, penalising the child, all of which factors raise a serious question affecting the interpretation of the Convention.