CONCURRING OPINION OF JUDGE POPOVIĆ

I agreed with the majority of my colleagues on the merits of the case, but had previously been in favour of striking the application out of the list on the ground of abuse of the right of application within the meaning of Article 35(3) of the Convention.

The reason for my attitude on the admissibility issue was the indecent and entirely inappropriate language used by the applicant ’ s counsel in his submissions to the Court.

I very much doubt that counsel has ever been allowed to use such language in the course of domestic proceedings and, in my opinion, he should be disciplined by the Bar.

DISSENTING OPINION OF JUDGE JOCIENE

1. I regret that I cannot agree with the Section ’ s conclusions in this case to the effect that there has been a violation of Article 6 § 1 of the Convention and a separate violation of Article 8.

2. The applicant complained under Articles 6 and 8 of the Convention about the failure to enforce a final order granting access to his children, adopted by a municipal court on 6 June 2000. According to the applicant, that order remained unenforced until 22 May 2008 (see paragraphs 14, 22, 23 and 33 of the judgment).

3. In my opinion, this case should have been analyzed from the Convention perspective under Article 6 § 1 alone, since the main aspect here is the non-enforcement of the court judgment of 6 June 2000, seen as a part of the right of an access to a court; therefore, no separate examination under Article 8 is required (see mutatis mutandis Mehmet and Suna Yi ğ it v. Turkey , Application no. 52658/99, judgment of 1 7 July 2007).

4. I take into account the Government ’ s arguments that the applicant continued to have informal contacts with the children from 2001 onwards. I also note that on 22 December 2003 the Social Care Centre in Zrenjanin informed the domestic court that the applicant had not been in touch with it and that M.F. had stated that the applicant had shown no initiative in attempting to see the children. For these reasons the Social Care Centre proposed that the enforcement proceedings be terminated. In my opinion, this clearly shows that the applicant himself was not sufficiently active in seeking contact with his children. Nevertheless, I believe that these arguments are not decisive in the circumstances of the case , particularly because Serbia ratified the Convention only on 3 March 2004. This means that, according to the Court ’ s competence ratione temporis , only the period from 3 March 2004, when Serbia ratified the Convention (see, mutatis mutandis, Jasiūnienė v. Lithuania , no. 41510/98, § 38, 6 March 2003) to 22 May 2008, when the enforcement proceedings were terminated, should be taken into account.

5. It should now be analyzed whether the respondent State, taking into account its margin of appreciation, took all necessary steps to implement within a reasonable time the final court ’ s decision and did everything in their power that could reasonably have been expected of them. I fully agree with the Court ’ s clear-cut case-law that the reasonableness of the length of proceedings, including the enforcement proceedings, is to be considered in the light of the criteria laid down in the Court ’ s case-law, in particular the complexity of the case, the conduct of the applicant and of the relevant authorities, and also the importance of what is at stake for the applicant (see, among other authorities, Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 19, ECHR 2000-IV). I also agree that Article 6 protects the implementation of final, binding judicial decisions, which, in States that accept the rule of law, cannot remain inoperative to the detriment of one party. Accordingly, the execution of a judicial decision cannot be prevented, invalidated or unduly delayed (see, among other authorities, Hornsby v. Greece , 19 March 1997, § 40, Reports 1997-II; Burdov v. Russia , no. 59498/00, § 34, ECHR 2002-III, and Jasiūnienė v. Lithuania , no. 41510/98, § 27, 6 March 2003, etc). In custody cases, the importance of what is at stake for the applicant in the litigation must be given extra weight. This means that it is essential that child custody cases be dealt with speedily (see Nuutinen v. Finland , no. 32842/96, § 110, ECHR 2000-VIII), as the passage of time can have irremediable consequences for relations between children and parents who do not live with them (see, mutatis mutandis , Maire v. Portugal , no. 48206/99, § 74, ECHR 2003-VII, and Ignaccolo-Zenide v. Romania , no. 31679/96, § 102, ECHR 2000-I), although a delay at some stage may be tolerated if the overall duration of the proceedings cannot be deemed excessive (see, for example, Pretto and Others v. Italy, 8 December 1983, § 37, Series A no. 71).

6 . Turning to the circumstances of our case, it should be noted that the period to be taken into consideration began only on 3 March 2004. Consequently, according to the Social Care Centre, contact between the applicant and his children was re-established in the summer of 2005 (see paragraph 40 of the judgment). In addition, on 31 May 2006 the Social Care Centre confirmed that Z.F., one of the applicant ’ s daughters, had effectively been living with him since 22 April 2006.

7 . Furthermore, the same Centre ’ s subsequent credible arguments should be taken into consideration. On 12 October 2006 it observed that the enforcement proceedings had been ineffective due to the uncooperative attitude of the children, and not only that of the mother. The Social Care Centre also noted that the applicant himself could not be considered a positive influence on his daughter Z.F., which, in my opinion, is a very serious factor in balancing the interests of the parents and children involved. It is also established that on 22 February 2007 one of the daughters, Z.F., again went to stay with the applicant, but was returned to the mother ’ s home.

8 . Furthermore, it would appear that in December 2007 both Z.F. and N.F. were living with the applicant, which is why on 17 December 2007 he was ordered by the municipal court to return them to their mother (see paragraphs 44 and 45 of the judgment). The factual circumstances of this case clearly show that the applicant had contact with his children since 2005 and even more, the children were actually living with him, in violation of the court order placing them in the mother ’ s house. In these circumstances, another aspect could have had very detrimental effects – the mother could also have complained that the municipal court ’ s order of 6 June 2000, placing the children with her, had remained unenforced, as the children had been actually or occasionally living with the applicant (see paragraphs 39-41 and 44).

9 . It should be also noted that the Social Care Centre did not act alone in the enforcement proceedings, but was backed up by the domestic courts. On 6 October 2000 the Municipal Court issued an enforcement order stating, inter alia , that M.F. would be fined 1,500 Serbian dinars should she fail to comply with it. On 29 June 2001 the Municipal Court decided to impose the said fine and again ordered M.F. to respect the applicant ’ s access rights; this decision was confirmed by the Municipal Court in February 2005. On 3 March 2005 the Municipal Court ordered M.F. to pay 6,750 dinars in costs.

10 . Furthermore, the applicant ’ s behaviour also attracts some criticism. On 20 April 2005 the Municipal Court found the applicant guilty of failing to pay child maintenance between 8 October 2001 and 8 March 2005 and sentenced him to four months in prison, suspended for one year. I note the applicant ’ s argument that he was unemployed and was unable to pay child maintenance, but I consider that in such a situation the applicant ought to have applied to the court to have the maintenance order changed. The applicant ’ s passivity cannot be seen as an appropriate contribution to the best interest of his children. As I understand it, the applicant had not only a right to contact with his children, but also a financial obligation to contribute to optimal living and educational arrangements for them.

11 . In the circumstances of the case, I conclude that the Serbian authorities did everything in their power that could reasonably have been expected of them. They took all necessary steps to facilitate execution of the court ’ s judgment of 6 June 2000 and, in my opinion, the overall duration of the execution proceedings cannot be deemed excessive. Therefore, there has been no violation of Article 6 § 1 of the Convention in this case. Taking into consideration the fact that the finding of a violation of Article 8 of the Convention was based on the same arguments, analyzed under Article 6 § 1 of the Convention, and given in particular the applicant ’ s genuine opportunities to see his children and even to live with them, relying on the fact that no irremediable consequences for the relationship between the children and their father can be discerned in this case, and also taking into account the active attitude of the Social Care Centre and the courts, I come to the conclusion that no separate examination is necessary under Article 8 of the Convention.

Having found no violations in this case, I also voted against any award of compensation to the applicant under Article 41 of the Convention.