DISSENTING OPINION OF JUDGE SERGHIDES

1. With great respect to the majority I disagree with their finding that there has been no violation of Article 6 § 1 and Article 8 of the Convention in the present case, for the following reasons.

2. Under Article 6 § 1 and Article 8 of the Convention, especially read in conjunction with Article 1, the State has an inherent positive obligation to find ways and take all necessary preparatory, preventive, corrective or repressive steps or actions to enforce custody or access orders issued by its courts. Unlike any of the other provisions of the Convention that employ the terms “right” or “freedom”, Article 8 employs the phrase “right to respect” with regard to family relations. This is due to the nature of family relations, which makes them so important and at the same time so delicate and sensitive, and, which should therefore be treated accordingly by the State when exercising its inherent negative and positive obligations to protect the rights arising from or concerning these relations. As has been held in Iglesias Gil and A.U.I. v. Spain (no. 56673/00, § 48, ECHR 2003-V), there are positive obligations inherent under Article 8 “in an effective ‘ respect ’ for family life”, which are in addition to the essential object of this provision, namely to protect the individual against arbitrary actions by public authorities.

3. With regard to the above obligation, the majority pertinently remark in paragraph 62 of the judgment:

“In relation to the State ’ s obligation to implement positive measures the Court has held that Article 8 includes for parents the right that steps be taken to reunite them with their children and an obligation on the national authorities to facilitate such reunions ... ”

Similarly, in Kosmopoulou v. Greece (no. 60457/00, § 44, 5 February 2004) the Court held:

“As to the State ’ s obligation to take positive measures, the Court has repeatedly held that Article 8 includes a right for parents to have measures taken with a view to their being reunited with their children, and an obligation for the national authorities to take such measures. This applies not only to cases dealing with the compulsory taking of children into public care and the implementation of care measures, but also to cases where contact and residence disputes concerning children arise between parents and/or other members of the children ’ s family ( Hokkanen v. Finland , judgment of 23 September 1994, Series A no. 299, p. 20, § 55).”             

Furthermore, in Sahin v. Germany ([GC], no. 30943/96, §§ 39 and 41, ECHR 2003-VIII) the Court held :

“The human rights of children and the standards to which all States must aspire in realising these rights for all children are set out in the United Nations Convention on the Rights of the Child. The convention entered into force on 2 September 1990 and has been ratified by 191 countries, including Germany.

...

... Moreover, States parties have to ensure that a child is not separated from his or her parents against their will unless such separation is necessary for the best interests of the child, and respect the right of a child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child ’ s best interests (Article 9).”

On 12 March 2001 Serbia ratified the United Nations Convention on the Rights of the Child, to which reference is made by the Court in Sahin.

4. In paragraph 55 of the judgment in the present case, the majority refer to the obligation for the State to take all necessary steps to execute national judgments:

“The Court also notes that, irrespective of whether enforcement is to be carried out against a private or State actor, it is up to the State to take all necessary steps to execute a final judgment as well as, in so doing, ensuring effective participation of its entire apparatus, failing which it will fall short of the requirements laid down in Article 6 § 1 (see, mutatis mutandis , in the child custody context, Damnjanović , cited above, § 68, and Pini and Others v. Romania , nos. 78028/01 and 78030/01, §§ 174-189, ECHR 2004-V).”

In Yuriy Nikolayevich Ivanov v. Ukraine (no. 40450/04, § 51, 15 October 2009) the Court reiterated that “the right to a court protected by Article 6 would be illusory if a Contracting State ’ s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party”.

I believe that the above obligation of the State does not apply only to final judgments, but also to all orders of the national courts of a positive character, whether final or interim, since the rule of law is indivisible and observance of it is mandatory. Besides, the majority seem to have taken it for granted that the efficiency of a legal system extends to the execution of binding interim orders granting access and custody.

It is to be noted that on 24 November 2009 the first-instance Serbian court granted sole custody of the child to the applicant. This judgment, of a permanent character, replaced and repealed the interim access and custody orders of 8 July 2008 and 11 November 2008, respectively. On 13 July 2010 and 18 January 2011 the second-instance Court and the Supreme Court of Cassation, respectively, upheld the judgment of 24 November 2009.

In the present proceedings the applicant complained about the non-enforcement not only of the interim access and custody orders, but also of the final custody judgment in her favour. This complaint, however, was rejected at the admissibility stage, under Article 35 §§ 1 and 4 of the Convention, for non-exhaustion of domestic remedies. Although it has been rejected and cannot be examined and determined again, that does not prevent the Court at this stage from looking at what happened after the judgment became final, which may shed light on what happened before, as regards the issue of non-compliance with the interim orders. This is justified, since usually there is continuity in family matters and issues, which can better be apprehended if seen in the context of the Aristotelian notion of time, as motion in respect of “before” and “after” (Aristotle, Physics , Book IV, Part 11). It should be noted that the majority also refer to the subsequent events mentioned above.

5. As was held in Guzzardi v. Italy (6 November 1980, § 106, Series A no. 39), “ ... the Court may take cognisance of all questions of fact or of law arising in the course of the proceedings instituted before it; the only matter falling outside its jurisdiction is the examination of complaints held ... to be inadmissible...”. This ex officio approach of the Court, which I fully endorse for the purposes of this opinion, is in conformity with the objective character of the Convention. The Court “has to examine in the light of the Convention as a whole the situation impugned by an applicant” and “in the performance of this task”, it is “notably free to give to the facts of the case, as found to be established by the material” before it “a characterisation in law different from that given to them by the applicant” (see Leo Zwaak in P. Van Dijk et al. (eds.), Theory and Practice of the European Convention on Human Rights , 4th edn., Antwerp-Oxford, 2006, p. 192 and note 394, referring to Guzzardi ).

6. Based on the principle of the rule of law and that of the effectiveness of the Convention provisions, the positive obligation of the State to protect children is imposed not only on the judicial authority (judiciary), but also on the other two branches of State authority, the legislative and the executive, each one within the ambit of their powers, respecting each other. The preamble of the European Convention on the Exercise of Children ’ s Rights provides:

“Having regard to the United Nations Convention on the rights of the child and in particular Article 4 which requires States Parties to undertake all appropriate legislative, administrative and other measures for the implementation of the rights recognised in the said Convention.”

The rule of law, to which the preamble to the European Convention on Human Rights refers, together with the principle of democracy, incorporates not only the rules of domestic substantive law and procedure and the decisions of the national courts, but also the provisions of the Convention and the case-law of this Court.

7. In its decision to communicate the application in the present case to the Government, the Court put additional questions to them, one of which was a request to “ ... explain the procedural and other measures available to the judicial, social welfare and law enforcement authorities in domestic law at the material time for enforcing custody arrangement such as the present one, i.e. in cases in which a parent allegedly refuses to cooperate or obstructs the enforcement of the custody decision in favour of the other parent or where the child/ren object/s [ sic ] to being reunited with the parent who has been awarded custody?”. The Government were further invited “to submit relevant legislation demonstrating that the judicial and the social/children care systems were organised in such a way as to enable the domestic courts/competent authorities to comply with the positive obligations inherent in effective ‘ respect ’ for family life before and after 2005”.

Having examined the answer given by the Government, I am of the view that the Serbian legal framework failed as a whole, in relation to the facts of the case, to provide deterrent machinery or methods for enforcing access and custody orders and punishing non-compliance with or disobedience of such orders.

8. On four occasions, namely on 4 May 2009, 6 June 2009, 26 June 2009 and 25 March 2011, the Serbian civil enforcement court, on the basis of Articles 45 and 224 of the Enforcement Procedure Act, ordered the child ’ s father (from now on referred to as “the respondent”) to pay a fine on account of his failure to prepare the child in appropriate psychological terms for contact with his mother. On 5 October 2009 the competent second-instance Court rejected the respondent ’ s appeals against the fines. It is to be noted that the power of the civil enforcement court to impose fines is quasi-criminal, because this penalty is comparable to a criminal-law punishment, although it is not of a particularly deterrent nature.

9. As is stated in paragraph 29 of the majority ’ s judgment:

“On 12 February and 31 March 2010 the Social Care Centre informed the enforcement judge that its psychological therapies in respect of the family in question had produced no results ... According to their reports, it became clear that the respondent had cooperated in form only and had in fact failed to take steps to encourage the child to have substantive contact with the applicant”.

Only after the applicant had unsuccessfully exhausted all legal procedures for enforcing the orders in her favour, and only after she had signed an agreement on access and later on accepted the revision of the custody order, which had been in her favour, did she eventually re-establish some contact with her child. As the majority find in the judgment, there was a lack of cooperation on the part of the respondent (see paragraphs 56 and 67) “and the applicant ’ s contact with the child improved only after the threat of the transfer of custody ceased, following the 2011 Agreement on Access Rights and the revision of the 2009 judgment” (see paragraphs 47 and 58). The above observations by the majority show the influence the father had on his child, as well as his passive resistance towards the enforcement of the courts ’ orders. The judicial ascertainment of a person ’ s subjective interest or of the purpose motivating actions or omissions on his part is frequently difficult and it is not the task of this Court to decide on such matters. But the above observations by the majority are well justified, especially having regard to the following facts: (a) the national court granted the applicant custody of the child, considering her the most suitable parent to have custody; (b) the respondent did not encourage the child to have contact with his mother and because of this omission, or passive conduct or inaction, was repeatedly found to be in contempt and was punished by the civil enforcement court; and (c) the child started having contact with his mother only after the father had obtained what he wanted. So, the maxim that facts are sometimes more powerful than words ( facta sunt potentiora verbis ) may be relevant here, as may the maxim that outward acts or actions sometimes indicate the thoughts and the intention hidden therein ( acta exteriora indicant interiora secreta , 8 Coke ’ s Reports 146). The fact that the applicant lodged her application with the European Court of Human Rights is a clear indication or proof that she signed the above-mentioned agreement not out of her free choice, but only when she realised that all of her requests for enforcement of the access and custody orders in her favour had proved unsuccessful, and that the only way for her to see her child was to sign the said agreement. It may not be irrelevant at all, here, while dealing with how the applicant was feeling when she signed the above-mentioned agreement, to refer to an allegation she made in the statement of facts set out in her application (especially in paragraphs 4-7), to the effect that the respondent was threatening her with physical and mental violence, which led her to live the matrimonial home. Similarly, it is mentioned in the statement of facts in the Court ’ s decision to communicate the application to the Government ( § 4) that “[t]he applicant allegedly did not dare to take her son with her because of the threats made by the respondent, of which the police had been informed”. Of course, it is not the duty of this Court to decide on the validity of these allegations.

10. Under Serbian civil law, the enforcement court could not order the imprisonment of the respondent (whether as an immediate or a suspended penalty) or impose any other custodial sentence, even of the smallest duration, since such penalties are not provided for by the civil law. It is true, therefore, that the same court which issued the access and custody orders did not have the effective means to enforce them. Since no other domestic legal or other measures proved effective, this omission or gap in the Serbian civil legal framework deprived the applicant, having regard to all the circumstances of the case, of a substantive method of securing the enforcement of decisions in her favour, which could have acted as a preventive, repressive or corrective measure or a deterrent to ensure that the father did not intentionally continue failing to prepare the child for reunification with his mother, and, in so doing, continue refusing to abide by the orders of the court. The issue here is not whether or not there is a consensus in the member States as to the penalties required for civil or criminal contempt of court. The issue is the examination of the effectiveness of the Serbian legal system in pursuing the State ’ s positive obligation in relation to the facts of the case to protect the rights under Article 6 § 1 and Article 8 of the Convention, and it is only in this respect that the efficiency of all the measures taken and the available legal provisions may be relevant.

11. Article 224 of the Enforcement Procedure Act contains a very interesting and substantive method of enforcing access orders:

“ ... If enforcement could not be accomplished by issuing and enforcing the decision on the fine, enforcement shall be conducted by taking the child away from the person who has custody of the child, and handing the child over to the other parent ... ”

In the present case, however, the guardianship authority failed to bring an action against the father on the basis of the above provision as it had the power to do, but on 11 November 2008 the first-instance court granted custody to the applicant and ordered the father immediately to surrender the child to her. Thus, in effect the method provided for in Article 224 was followed, but it did not work, despite the best efforts of the enforcement judge and the Social Care Centre. This can be explained because the father was present during the attempt to hand the child to the mother, and, by his very presence, was in a position to exert a negative psychological influence or pressure on the child.

Unless this method of enforcement were to be to combined with a custodial sentence, even of a very short duration, or unless there was a threat of imprisonment or any other deterrent measure in the event of systematic manipulation of the child against his mother – as the applicant alleged had happened in the present case – it could be very difficult, if not impossible, for such behaviour, which may be characterised as a bad or inappropriate exercise of parental authority, to cease to exist. Without an arrest warrant or the fear of being imprisoned, there was nothing to deter the respondent from abiding by the court orders, even on 22 December 2008, when, among other people, the enforcement judge, a bailiff, two uniformed policemen and three plain-clothes policemen, all entered the courtyard of his house, expecting that the child would be surrendered (see also paragraph 23 of the judgment). What he did instead was to remain inactive and uncooperative. Two of the four fines imposed on him were at the highest level permissible by the legislature, namely 150,000 Serbian dinars (RSD) (around 1,217 euros), and on the fourth occasion, when a fine was imposed on him in the amount of RSD 100,000, an added condition was made by the Judge that should the respondent fail to surrender the child voluntarily to the applicant within three days from the date of the receipt of the order, he would have to pay a further fine of RSD 150,000. No penalty, however, of such a monetary character, irrespective of the amount involved, deterred the respondent from disobeying the orders. Had the penalty been custodial, instead, even with suspended application, the results might have been quite different.

What is most strikingly disappointing is that the fines imposed were not paid by the respondent (at least by the time the decision to communicate the application to the Government was taken) and have not been enforced by the State, through the institution of proceedings against the respondent entailing a penalty of imprisonment, a remedy available under the domestic law. That was a serious failure on the part of the State regarding the issue of effective enforcement of the orders in question. That the fines were not paid and enforced is a fact that was included in the statement of facts of the decision of the Court to communicate the application (§§ 30 and 37) and was accepted by the respondent State, since in its written observations (§ 5), it states that “ ... it deems that the Statement of Facts provided by the Court is sufficiently detailed” and that “[o]n this occasion it will only indicate certain facts not mentioned by the Court”.

12. It is, of course, within the margin of appreciation of every State to decide how to deal with offences for civil contempt in relation to a court ’ s orders. However, it is to be noted that a violation of a court order regarding family relations is an offence with a negative impact not only on the harmonious administration of justice, but also on the interests of the children and their parents. Non-compliance with such an order may lead to the end of family life – in the present case, the end of family life for the applicant with her child and vice versa , with probably detrimental and traumatic results for both of them, especially the child. So the penalties for such violations should be strict with a deterrent effect.

As regards Article 2 of the Convention concerning the right to life, the Court stated the following in Osman v. the United Kingdom (28 October 1998, § 115, Reports of Judgments and Decisions 1998-VIII):

“It is common ground that the State ’ s obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions.” (See also Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05 , § 171, 14 April 2015).

What was said above in relation to Article 2 can also apply, by analogy and bearing in mind that the Convention is a living instrument, to situations coming under Article 8, like the present one, where without effective deterrent provisions and law-enforcement machinery, family life may end.

It is the task of this Court to exercise its supervisory jurisdiction and to afford international protection when a State exceeds its margin of appreciation and fails to provide an effective mechanism and legal system – civil and criminal, substantive and procedural – to protect the human rights guaranteed by the Convention. It is also the task of this Court to exercise its jurisdiction when the national legal procedures are unable to protect a child from being victimised, as in the present case. The role of this Court is to interpret and apply the provisions of the Convention (Article 32), always ensuring the observance of the engagements undertaken by the High Contracting Parties (Article 19).

13. Though there were four decisions of the civil court (not reversed on appeal) imposing fines on the respondent and finding that he had consistently failed to prepare the child appropriately for having contact with his mother, that was apparently not sufficient for the prosecutor ’ s office, which dropped the charges against the respondent, and for the criminal courts at first and second instance, which acquitted him, finding that he had “never physically or verbally, actively or passively obstructed enforcement at any point” (see paragraph 46 of the judgment).

14. Article 191 § 1 of the Serbian Criminal Code provides that “[w]hoever unlawfully detains or abducts a minor from a parent ... entrusted with the care of the minor or whoever prevents enforcement of [a] decision granting custody of a minor to a particular person, shall be punished with a fine or imprisonment of two years”. Furthermore, Article 191 § 2 of the same Code provides that “[w]hoever prevents enforcement of the decision of a competent authority setting out the manner of maintaining of personal relationships of a minor with parent ... shall be punished with a fine or imprisonment up to one year”. However, the provisions of Article 192, though of a deterrent nature, did not actually deter the respondent, since the prosecutor dropped the charges against him, and the applicant was left to conduct the prosecution herself, with the result that the respondent was acquitted by the criminal court, even though he had never surrendered the child to the mother, as he had been obliged to do so by the relevant court orders, and even though he had been found by the civil courts (at first instance and on appeal) to have failed to comply with the access and custody orders by not appropriately preparing the child to meet his mother.

15. In paragraph 46 of the judgment, the majority observe that the first-instance criminal court acquitted the respondent. They further observe that that court:

“[f]ound, on the basis of ... four expert reports from the civil proceedings case-file ... that the respondent always made the child available for enforcement, that he never physically or verbally, actively or passively obstructed enforcement at any point, and that there were no indications that the child ever showed signs that he was under pressure or undue influence not to have contact with his mother.”

However, the finding of the criminal court that the respondent “never physically or verbally, actively or passively obstructed enforcement at any point” does not coincide with the condemnatory decisions of the civil enforcement court, or of the civil appeal court, to which reference was made above. It also does not coincide with what the enforcement judge did on 9 January 2009 in asking “the Social Care Centre to contemplate initiating corrective monitoring of the respondent ’ s exercise of parental rights in the light of the respondent ’ s substantial influence on the child ’ s hostility toward his mother” (see paragraph 13 of the judgment), nor is it compatible with the reports of the Social Care Centre mentioned in the majority ’ s judgment (see paragraph 9 above of this opinion), clearly indicating that “the respondent had cooperated in form only and had in fact failed to take steps to encourage the child to have substantive contact with the applicant”. The statement of facts in the decision to communicate the application (§ 14) – which, as has been said before, was accepted by the Government in their observations as sufficient – includes the following passage, which shows that the behaviour of the respondent was not only passively but also actively negative towards the orders of the court, actually alienating the child from his mother:

“On 27 May 2009 the MCI submitted a fresh report, following the court ’ s request, finding that the child ’ s emotional development was highly jeopardised by his father directly disqualifying the applicant as mother in order to alienate the child from her. The child was constantly in fear and a conflict of loyalties. In view of the psychological pressure to which the child was being subjected by his father and the child ’ s development, the experts concluded that his own statement should not be relevant for determination of the parties ’ parental capacities and what would be in his best interests.”

One may wonder why the same failure or inaction by the respondent to abide by the orders of the court, if accompanied by mens rea , could be regarded by one court (the civil court) but not by another (the criminal court) as disobedience of court orders. But what the Social Care Centre noted in its above-mentioned report was more than a mere failure to act on the part of the respondent; it was rather an attempt by him to alienate the child from his mother.

16. The above difference, or rather inconsistency, between the criminal and the civil courts ’ approaches to the issue of contempt‚ and especially to the behaviour of the respondent, as described in the Social Care Centre reports, should have nothing to do with whether or not the burden or standard of proof or judicial assessment in the two types of proceedings is or may be different‚ and so this divergence cannot be justified on such a basis. In any event, the Social Care Centre reports seem absolutely clear, as has been shown above.

17. According to the case-law of the Court, the execution of a judgment given by a court must be regarded as a part of the “trial” for the purposes of Article 6 (see Hornsby v. Greece , 19 March 1997, § 40, Reports 1997-II), and a delay in the execution of a judgment may be justified in particular circumstances‚ but it may not be such as to impair the essence of the right protected under Article 6 § 1 of the Convention (see Immobiliare Saffi v. Italy [GC], no. 22774/93, § 74, ECHR 1999-V). As clearly held in Yuriy Nikolayevich Ivanov (cited above, § 51), making reference to Immobiliare Saffi, “ [t]he effective access to court includes the right to have a court decision enforced without undue delay”. In M. and M. v. Croatia (no. 10161/13, § 179, 3 September 2015), the Court reiterated “[t]hat the ineffective, and in particular delayed, conduct of custody proceedings may give rise to a breach of positive obligations under Article 8 of the Convention ... ”.

The non-compliance by the respondent with the court orders began on 8 July 2008‚ when the interim access order was issued, and lasted until 20 June 2012, when custody was given to him, that is, for a period of almost four years. However, the relevant period for the issues under examination lasted until 13 July 2010, when the custody order in favour of the applicant became final. Again, this period of two years without the applicant seeing her child was too long. I consider that this delay and the protraction of proceedings, through no fault on the applicant ’ s part, was too long and unreasonable, thus impairing her rights under Article 6 § 1. The enforcement measures taken were bound to be futile, under the circumstances, without the availability of strict deterrent provisions on civil contempt and without any attempt to enforce the fines or to initiate the procedure under Article 224 of the Enforcement Procedure Act. As regards the criminal procedure, it took the first-instance criminal court about four and three years respectively to reach a final decision on 20 June 2012 on the criminal complaints filed by the applicant on 29 August 2008 and 23 June 2009 against the respondent for: (a) parental child abduction, and (b) continuous non-compliance with the interim access and custody orders. It is a remarkable coincidence that on the same date the first-instance criminal court acquitted the respondent (20 June 2012), the first-instance civil court granted the respondent custody of the child, following the agreement made by the parties on 23 March 2011 for the revision of the judgment of 24 November 2009, which, after a hearing, had granted the applicant custody. The decision of the Constitutional Court dated 22 July 2010 finding that there had been no delay in the criminal proceedings was given almost two years before the decision of the first-instance criminal court was taken, and thus did not consider this further delay of two years, which, however, cannot be taken into account for the purposes of the present proceedings, since domestic remedies have not been exhausted in relation to this delay. Even without taking into account this further delay of two years, the original two-year delay was in itself lengthy and unreasonable, violating Article 6 § 1, especially having regard to the nature of the complaints and the interests affected, as well as the fact that the enforcement of the access and custody orders remained unsuccessful, despite the repeated decisions requiring the respondent to pay fines.

18. Since the access and custody orders were positive (and not declaratory) orders, thus ordering the respondent to surrender the child to the applicant, it should have been the duty of the respondent to find a proper means of preparing the child and of obeying the orders. Though it may have been a defence to show that compliance with the orders was impossible, the burden of proving such impossibility should have been on the respondent and on the respondent State in accordance with the positive obligation it has to fulfil, irrespective of whether the proceedings for contempt were civil or criminal. Any other approach, I believe, would have led to the undesirable results encountered in the present case: (a) making the orders ineffective and letting them be disregarded; (b) damaging the interests of the child to whom the orders related, as well as the relations between mother and child; and (c) endorsing, in effect, the respondent ’ s above-mentioned unacceptable behaviour in manipulating the child. Here, it should be borne in mind that according to the Court ’ s case-law, the mutual enjoyment by parent and child of each other ’ s company constitutes a fundamental element of “family life” within the meaning of Article 8 of the Convention (see paragraph 60 of the judgment). No evidence was provided that contact between the child and his mother was impossible because of any inappropriate behaviour by the mother towards the child. On the contrary, the civil court decided on 24 November 2009 that it was for the benefit of the child to grant custody to the mother‚ finding her to be the most suitable parent in that respect. In addition, before the separation of the parents, the child did not appear to have had any problem with his mother. This shows that it was not impossible for the child to have contact with his mother, unless, of course, the father did not wish this to happen and influenced the child in this direction or displayed apathy in that regard. The fact that the enforceability of the order was solely or mainly dependent on the will of the respondent does not make the issue objectively impossible or complex, but rather necessitates the imposition of strict sanctions on him. The Government admitted in their observations that the respondent “certainly contributed to such an attitude of the child to a great extent” (§ 13). Even more importantly, when dealing with the “measures available to domestic authorities”, they accepted (see the observations, § 33) that the passive behaviour of the parent the child was with – in the present case, the respondent – “implies behaviour that may be qualified as disturbance or aggravation or prevention of enforcement ... which should be sanctioned”:

“The parent the child is with, in the instant case the father, shall be obliged to prepare the child for his/her transfer to the mother, as the parent the child had been committed to by the court decision, and his non-acting in this sense implies behaviour that may be qualified as disturbance or aggravation or prevention of enforcement having the elements of conduct contrary to the law, which should be sanctioned.”

Having regard to the facts of the case, what else could this extremely important admission mean – supporting this opinion – other than that the Serbian legal system has failed on the issue of enforcement? Especially in view of this admission, and without, of course, taking on the role of a national court, one may wonder whether such passive behaviour in relation to compliance with a positive order by a court could not, by itself, be sufficient to constitute mens rea in any contempt proceedings, whether civil or criminal. One may also wonder whether any other approach would not run the risk of indirectly impairing the essence of the rights guaranteed by Article 6 § 1 and Article 8 of the Convention, by leaving behaviour which violates these rights unpunished indefinitely. The domestic rule of law as a whole should promote and not suppress the human rights protected by the Convention.

19. The Court is very outcome-orientated, especially in protecting the right to respect for family life, and the principle that the State has a margin of appreciation in choosing the means or measures it will use to enforce a decision should always be applied together with, and having due regard to, the principle of effectiveness and practical application of the provisions of the Convention. Otherwise, there would be a serious and unjustified reduction of the level of human rights protection, and in the present case an unjustified reduction of human rights in the field of family relations.

20. In examining whether the State ’ s obligation to take all necessary steps to facilitate the execution of its courts ’ orders, or to find ways or means to enforce them, has been fulfilled, it must always be ascertained whether any alleged inability to enforce such orders is real or not, objective or subjective‚ or is due to the will or behaviour of the adult persons involved (parents and grandparents, and so on), and whether the situation can easily be changed if the will or behaviour of these persons changes.

21. Since, as regards the enforceability of the courts ’ orders in the present case, the applicant had obtained four civil decisions against the respondent, it is quite unclear why the prosecutor ’ s office dropped the charges against the respondent and why none of the scheduled hearings was held (for these facts, see paragraph 46 of the judgment). It is obvious that the criminal-law enforcement machinery, by dropping the charges against the respondent, did not assist, even indirectly, in ensuring that the court orders were complied with and that the applicant ’ s right to respect for her family life was secured.

22. The Ombudsperson reminded the Social Care Centre ’ s officials of their powers under domestic law and of measures that they could have envisaged to enable such a reunion (see the decision to communicate the application, § 44), without, however, any positive result. Unfortunately, there was (and there still is) no Children ’ s Commissioner in Serbia who could have been appointed as the special representative of the child in the present case so as to assist in the unification of the family and to make sure that the child ’ s rights were implemented correctly at all times.

23. Obedience is the essence of the rule of law (“ obedientia est legis essentia ”, 11 Coke ’ s Reports 100) and the effect of the rule of law consists in its execution (“ juris effectus in executione consistit ”, Coke on Littleton 289). I believe, without taking on the role of a first-instance court, that the disobedience by the respondent of the two interim orders, a finding which the civil court had already made, undermined the very administration of justice and the rule of law. It rendered the orders literally nugatory and totally deprived the applicant – the most suitable parent to have custody of the child – of her rights guaranteed under Article 6 § 1 and Article 8 of the Convention. Such behaviour, by any parent, is very serious and should entail strict sanctions, provided for in both civil and criminal contempt proceedings, with the aim not only of punishing the offender, but also of operating as a means of coercion ensuring compliance with such orders, while at the same time promoting, or preventing undue interference with, the administration of justice. It is totally unacceptable to allow a situation, as in the present case, where a parent who, despite having been found in a court judgment to be unsuitable or not the most suitable parent to have custody of the child, was actually left to enjoy sole custody, making the child not wish to have any contact at all with the other parent, who had nevertheless been deemed the most suitable parent to have custody. And eventually, this bad or unsuitable parent, who was in continuous civil contempt of court, managed not only to be left unpunished by the criminal court, but also to be given custody of the child. The rule of law and the administration of justice lose their authority and validity if they are left, or appear to be left, at the whim of any person, as in the present case, who refuses to abide by the orders of a court.

24. It is to be noted that punishment or coercion in respect of a parent who does not comply with an access or custody order, thus acting against the interests of his or her child, differs from, and should not be confused with, coercion of a child, which should be avoided in all circumstances. Quite appropriately, the majority note (in paragraph 65 of the judgment) that, according to the Court ’ s case-law, “although coercive measures against children are not desirable in this sensitive area, the use of sanctions cannot be ruled out in the event of unlawful behaviour by the parent with whom the child lives”. But for such sanctions to be imposed, it would be necessary first for them to be provided for by law. It should also be clarified that the enforcement of a court ’ s access or custody orders should not be taken as a measure contrary to the idea of child-friendly justice, the most appropriate form of justice in the interests of children.

25. The principle of proportionality, which is inherent in all the Convention provisions securing human rights, including Articles 6 and 8, should be employed in almost every family case which comes before the Court. A fair balance must be struck between the competing interests of the individuals (child and parents) and the community as a whole, which demands that the rule of law must be maintained. In the present case, however, the rights of the individuals were regulated by the domestic courts ’ orders; all that remained was to enforce those orders and maintain the rule of law. The rule of law should be respected not only by the parties concerned but by all the authorities of the State, which in the present case had the positive duty to enforce the courts ’ orders and reunite the applicant with her child.

26. Referring to previous case-law, the majority rightly acknowledge in the judgment (see paragraph 64) that “the adequacy of a measure is to be judged by the swiftness of its implementation, as passage of time can have irremediable consequences for relations between the child and the parent who do not cohabit”. This observation, however, with which I fully agree, is particularly important when the Court finds a violation of Article 8, as I have done in the present case. Family relations are continuous and sensitive human relations and cannot be repaired retrospectively. Any obstruction to their continuity by one parent not abiding by a court order regulating family relations may destroy these relations, and may also flagrantly violate the right to respect for family life and the human dignity of the child and the parent whose contact with his or her child has been seriously damaged. The guarantees afforded by Article 6 § 1 of the Convention would be illusory if a Contracting State ’ s national legal system allowed court orders granting access and custody to remain inoperative to the detriment of a child and his mother, as happened in the present case.

27. Ιn Malec v. Poland (no. 28623/12, 28 June 2016), as in the present case, fines were imposed against a parent who did not comply with contact orders (including interim orders). In that case, the Court stated the following, which supports the present opinion, especially in showing that the State ’ s positive obligations under Article 8 have to be fulfilled, even in the most difficult situations, and that lack of cooperation between separated parents is not a circumstance which can of itself exempt the authorities from these obligations:

“71. In that connection, the Court observes that the applicant has never been considered as being unsuitable to maintain contact with N. or to take care of her during her visits. On the contrary, it has been found by the experts involved in the case that such contact was in N. ’ s interests and should be maintained ...

72. The difficulties in arranging contact were admittedly due in large measure to the animosity between E. and the applicant. The Court also notes the growing reluctance of the child to meet with her father. It is further mindful of the fact that contact and residence disputes are by their very nature extremely sensitive for all the parties concerned, and it is not necessarily an easy task for the domestic authorities to ensure enforcement of a court order where the behaviour of one or both parents is less than constructive. However, a lack of cooperation between parents who have separated is not a circumstance which can of itself exempt the authorities from their positive obligations under Article 8. It rather imposes on the authorities an obligation to take measures that would reconcile the conflicting interests of the parties, keeping in mind the paramount interests of the child ...

73. In that regard, the Court observes that when the applicant ’ s former wife failed to comply with the contact orders, the applicant began to file enforcement claims with the District Court. He has filed over 50 such requests ... and they              eventually resulted in District Court ordering the mother to comply with the access arrangements and to the imposition of fines on two occasions ...

74. However, the Court reiterates that in cases of this kind the adequacy of a measure is to be judged by the swiftness of its implementation, as the passage of time can have irremediable consequences for relations between the child and the parent who do not cohabit ... Firstly, as regards the swiftness of the enforcement proceedings, the Court notes that the domestic court examined the request of 7 March 2011 on 28 October 2011, when it ordered the mother to comply with the contact order ... Since she continued to prevent the applicant having any contact with N., the court eventually imposed a fine on her on 15 March 2012, that is, one year later ... Secondly, the Court points out that the enforcement proceedings initiated by the applicant on 23 August 2011, after several procedural decisions, were eventually discontinued more than two and a half years later, on 24 April 2013 ... . Thirdly, the proceedings instituted by the applicant on 20 February 2012, in so far as the applicant alleged that the mother failed to comply with the interim contact order, were discontinued a year later, on 28 February 2013 ...

75. Apart from noting the general difficulties resulting from the fact that the proceedings took place before three different courts ... , the Government did not submit any explanation for the particular delays in the examination of the applicant ’ s requests. The Court finds that even though the applicant ’ s enforcement requests led eventually to two decisions imposing a fine on the mother, the protracted examination of those requests and the obstruction to his contact resulted, as noted by the experts, in a further deterioration of the emotional bond with his daughter ...

76. The Court acknowledges that the task of the domestic courts was rendered difficult by the particularly strained relationship between the applicant and his former wife. However, while the Government referred in general terms to the conflict between the applicant and the child ’ s mother as the source of the applicant ’ s problems in maintaining contact with N. ... , there are no indications that this conflict affected the course of the enforcement proceedings or was the reason for the delays therein and their lack of effectiveness ...

78. Having regard to the facts of the case, in particular the passage of time, and the criteria laid down in its own case-law, the Court concludes that, notwithstanding the State ’ s margin of appreciation, the Polish authorities failed to make adequate and effective efforts to enforce the applicant ’ s parental rights and his right to contact with his child.

79. There has accordingly been a violation of Article 8 of the Convention.”

28. In view of all the above, I conclude that the Serbian legal system or framework as a whole, faced with the issue of enforcement of the orders in question, was not effective, as it failed to provide an adequate and timely response consonant with the State ’ s obligation under Article 6 § 1 and Article 8 of the Convention. In particular, the respondent State failed to provide an effective legal system and mechanism and to undertake all necessary measures to protect the rights of the applicant and the child under the above Convention provisions. I therefore find that there has been a violation of those provisions. Since I am in the minority, it would only be theoretical to assess the amount to which the applicant should have been entitled in respect of non-pecuniary damage on the basis of my findings.