C and D v Croatia - 43317/07 [2010] ECHR 1706 (14 October 2010)

BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £5, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

The European Court of Human Rights (First Section), sitting on 14 October 2010 as a Chamber composed of:

Christos Rozakis, President,
Nina Vajić,
Elisabeth Steiner,
Khanlar Hajiyev,
Dean Spielmann,
Giorgio Malinverni,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

The applicants, daughter and mother, are Croatian nationals and live in Z. They are represented before the Court by Mrs I. Bojić, a lawyer practising in Zagreb. The Croatian Government (“the Government”) are represented by their Agent, Mrs Š. StaZnik.

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

On 19 March 2005 the first applicant was placed in pre-trial detention in Z. Prison, charged with the murder of her husband, who had been killed on the same day. In a judgment of the Z. County Court (Zupanijski sud u Z.) of 11 September 2006 the first applicant was convicted of murdering her husband in imperfect self-defence and sentenced to nine years' imprisonment. The sentence was reduced to five years' imprisonment by the Supreme Court (Vrhovni sud Republike Hrvatske) on 25 January 2007. After her conviction the first applicant had, in October 2005, been sent to serve the remainder of her sentence in PoZega Penitentiary (Kaznionica u PoZegi).

Meanwhile, on 19 March 2005, following the first applicant's arrest, her son, E, born in 1996, was placed in the care of his paternal grandmother by a decision of the Z. Welfare Centre (Centar za socijalnu skrb Z.). This decision was upheld by the same Centre on 4 July 2005.

In 2008 the President of Croatia reduced the first applicant's sentence to three and a half years' imprisonment. The applicant was released on 27 June 2008.

On 13 April 2005 the first applicant asked the Z. Welfare Centre to allow her access rights in respect of E. By a decision of 6 July 2005 the Z. Welfare Centre granted the first applicant visiting rights in respect of E every Wednesday from 9 a.m. to 10 a.m. at the Z. County Court, if necessary in the presence of a psychologist. E's guardian was instructed to bring him to these premises. The relevant parts of the decision read as follows:

“The report drawn up by the psychologist ... on 1 June 2005 recommended that it was in the best interests of the child to continue contact with his mother in order both to treat his trauma and to establish a natural relationship between the mother and the child, which was seen as a precondition for the latter's further proper mental and physical development.

In adopting the above decision the Centre's expert team has been guided primarily by the best interests of the child and the [need for the] protection of his rights since he has recently been left without the direct parental care of both of his parents. He has been receiving psychotherapy owing to the consequences he is suffering. He has shown a wish and readiness for contact with his mother and the psychologist considers this [contact] necessary for his treatment in order to avoid ... permanent [negative] consequences for his mental and physical development.”

It appears that the visits took place and that the last one was in September 2005. The child's paternal grandmother, as his guardian, lodged an appeal against the above decision and on 30 December 2005 the Ministry of Health and Social Welfare (Ministarstvo zdravstva i socijalne skrbi) quashed the impugned decision and remitted the case to the Z. Welfare Centre for fresh consideration.

On an unspecified date the case was transferred to the Z. Municipal Court (Općinski sud u Z.). The hearings were held on 30 March, 12 and 29 May and 8 June 2006. On 9 June 2006 the Municipal Court granted the first applicant visiting rights every Thursday from 10 a.m. to 11 a.m. at the Z. Welfare Centre. She was also granted the right to telephone E every Monday and Friday between 5 p.m. and 6 p.m. This decision was quashed by the Z. County Court on 13 September 2006 on appeals lodged by the first applicant and on behalf of E; it remitted the case to the first-instance court for fresh consideration. The hearings before the latter court were held on 30 November and 22 December 2006 and 2 February and 2 March 2007.

On 10 April 2007 the court ordered psychological and psychiatric reports on the first applicant and E. The expert concluded that contact between the first applicant and E would not be possible because the child had categorically refused to see the first applicant. In order to overcome that difficulty, it was recommended that E undergo psychotherapy once a week for six months, after which it would have to be established whether his psychological condition allowed for contact with the first applicant. It was stressed that the therapy was needed to come to terms with the tragic event and prepare E for contact with his mother.

As to the first applicant, the expert opinion recommended psychotherapy in order to come to terms with the tragic event and create conditions in which that issue could be discussed by the first applicant and E.

Further hearings before the Z. Municipal Court were held on 5 and 27 September and 6 November 2007. On 12 November 2007 a decision was adopted refusing the first applicant's request for access rights in respect of E.

Meanwhile, on 4 July 2007, the first applicant complained to the Z. County Court about the length of the proceedings. The complaint was dismissed by the Z. County Court on 19 November 2007.

The first-instance decision of 12 November 2007 was upheld by the Z. County Court on 28 March 2008.

The applicant then lodged a constitutional complaint arguing that her rights under Article 35 of the Constitution and Article 8 of the Convention had been violated.

On 20 May 2009 the Constitutional Court accepted the complaint, quashed the decisions of the Z. Municipal and Z. County Courts and ordered the Z. Welfare Centre to take all necessary steps to ensure effective meetings and contact between the first applicant and E. The relevant part of the Constitutional Court's decision reads:

As regards the present case, the Constitutional Court endorses the principle that the incarceration of a parent does not break the tie of family life between that parent and a child. Moreover, in such circumstances the State has a special obligation to encourage the preservation of family ties between the prisoner and his or her family members.

Positive obligations include a duty on the part of the State to be proactive in order to ensure that its citizens' family life is respected and efficiently protected, even when that requires regulation of their private relations. These obligations are expressed in the following Articles of the Constitution which refer to social rights:

The State protects maternity, children and young persons and creates social, cultural, educational, economic and other conditions in order to promote the right to dignified life.

In the case at issue, the competent administrative and judicial bodies determined the access rights of the mother (the applicant) in respect of her son, a minor, during her incarceration in PoZega Penitentiary.

In the opinion of the Constitutional Court the proceedings concerning the appointment of a legal guardian to the child as well as proceedings concerning the access rights of parents ... are both relevant ... These proceedings are both judicial and administrative ...

Therefore, the Constitutional Court finds that possible infringements of the right to respect for one's family life under Article 35 of the Constitution and ... under Article 8 of the Convention require that all proceedings prior to a decision of the Constitutional Court be viewed as a whole, irrespective of the nature of these proceedings (administrative, judicial) or the bodies which conducted them ...

The applicant's detention made contact between the mother and her child impossible and it therefore amounts to an interference of the State with the applicant's right to respect for her family life within the meaning of Article 35 of the Constitution and Article 8 of the Convention. ...

13. The Constitutional Court finds that the delays in the proceedings concerning the protection of the child's well-being, such as proceedings on appointing his legal guardian, access and visiting rights of parents... might run contrary to the procedural requirements of Article 35 of the Constitution and Article 8 of the Convention. ...

In the case at issue the length of the administrative and judicial proceedings concerning the applicant's visiting and access rights in respect of her child exceeded three years and ended with a judicial decision denying such rights so that the last time the applicant saw her child was on 13 September 2005.

The Constitutional Court has to conclude that the following specific circumstances of the case, viewed as a whole: - stringently denying contacts between the applicant and her child (28 March 2008); preceded by a period of several years when contact between the applicant and her child had been impossible (since 13 September 2005); taken together with the fact that the child has lived with his paternal grandparents since the tragic murder of their son and the child's father (19 March 2005); the failure of the judicial authorities to commission the necessary expert report in time; the failure to consider the possibility of appointing a special guardian for the child during his psychotherapy, irrespective of the fact that his paternal grandmother had been appointed his legal guardian, in order to 'work out' the event, which had tragic consequences both for the child and his paternal grandmother; the fact that the additional expert report recommended by court experts was not compiled; and the delays in the proceedings concerning the visiting and access rights, which opened the possibility of influencing and changing the child's attitude towards his mother, resulting in his categorical refusal to see her – indicate that the Constitutional Court cannot but find that the conduct of the competent authorities amounted to a violation of the applicant's right to respect for her family life guaranteed under Article 35 of the Constitution and Article 8 of the Convention ...”

In a letter of 8 June 2009 the Z. Welfare Centre invited the first applicant to attend a meeting scheduled for 19 June 2009 at 12.30 p.m. in order to “participate in the proceedings on consultation and assistance in overcoming special difficulties”, all according to the above decision of the Constitutional Court. In the case the first applicant was prevented to attend, the Centre invited her to inform it within twenty-four hours following the receipt of the letter.

The letter was served on the first applicant on 11 June 2009. On 19 June 2009 the first applicant wrote a letter to the Centre informing it that she would not attend the meeting scheduled for the same day and invited the Centre to inform her of any steps envisaged by the Centre in order to ensure her contact with her child. However, she did attend the meeting and insisted that the Centre organise a meeting between her and the child. She also said that she would not attend any further meetings unless her child was present.

In June 2009 the Centre also devised an action plan in order to comply with the Constitutional Court's decision. The action plan was to be implemented by a team of experts, composed of a social worker, five psychologists and two lawyers, established for that purpose. The action plan was concentrated on three main purposes: establishing contacts with the first applicant and her son; work with the family members; and mediation between the two families.

In a telephone conversation on 13 July 2009 E. told a psychologist of the Centre that he did not wish to see the first applicant.

On 16 July 2009 the second applicant informed the Centre that the first applicant was expected to come back to Zadar in October 2009.

On 21 July 2009 the first applicant lodged a request for compensation with the competent State Attorney's Office. This request was denied on 15 October 2009.

On 8 December 2009 the first applicant informed the Centre that she had come back to Zadar and would stay there until 4 January 2010.

In a telephone conversation on 10 December 2009 E. again told a psychologist of the Centre that he did not wish to see the first applicant. The psychologist informed the first applicant about it on 11 December 2009 and advised her to send E. a Christmas card and a present.

On 16 March 2010 the Centre invited the applicants to a hearing on 29 March 2010 at 8 a.m, E.'s paternal grandparents at 10 a.m. and E. for consultations with a psychologist on the same day at noon.

On 24 March 2010 the second applicant informed the Centre that the first applicant could not attend because she was still working on a cruise ship.

The second applicant attended and informed the Centre's psychologist that she had been seeing a counsellor. She also said that the first applicant had sent several text messages to E. and that he had sent short replies, not wishing to establish contact with the first applicant.

E. came to the Centre on 30 March 2010 and told the psychologist that he did not wish to see the first applicant.

On 31 May 2010 separate consultations between the Centre's psychologist and the second applicant, E.'s paternal grandmother and E. were held at the Centre. The second applicant said that the first applicant was still abroad. E. told the psychologist that he had been seeing a counsellor once a month. He repeated that he did not wish to see the first applicant.

Consultations scheduled for 12 July 2010 were attended by the second applicant only. She informed the Centre that the first applicant would probably come to Zadar in September or October 2010. The Centre's psychologist suggested that she call E. by telephone and send him letters.

On 1 June 2005 the second applicant, E's maternal grandmother, requested the Z. Welfare Centre to grant her visiting rights in respect of E. On 15 June 2005 the Centre heard evidence from E's paternal grandmother and legal guardian, and on 30 June 2005 from the second applicant. On 11 July 2005 both grandmothers met at the Centre's premises and agreed that the second applicant and E should meet on 19 July at the Centre, in the presence of the Centre's psychologist.

On 7 September 2005 the grandmothers met again at the Centre and agreed that the second applicant would meet E. on her own each Saturday for two hours. However, only one such meeting took place, allegedly because E refused to continue with these meetings.

On 1 January 2006 jurisdiction in matters concerning child custody was transferred to the municipal courts. Hearings before the Z. Municipal Court were held on 21 February, 9 March, 14 April and 31 May 2006 and 3 and 17 May and 5 and 14 September 2007. On 24 September 2007 a decision was adopted ordering bi-monthly meetings between the second applicant and E at the Centre's premises.

On 11 July 2007 the second applicant complained to the Z. County Court that the length of the proceedings was excessive. The complaint was dismissed on 3 October 2007.

On 22 April 2008 the Z. County Court upheld the first-instance decision of 24 September 2007.

“Respect for and legal protection of everyone's private and family life, dignity, reputation and honour is guaranteed.”

The relevant part of section 62 of the Constitutional Court Act (Official Gazette no. 49/2002, of 3 May 2002, Ustavni zakon o Ustavnom sudu Republike Hrvatske) reads as follows:

“1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the individual act of a state body, a body of local and regional self-government, or a legal person with public authority, which has determined his or her rights and obligations, or a suspicion or accusation of a criminal act, has violated his or her human rights or fundamental freedoms or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter: constitutional right) ...

The relevant provisions of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette nos. 35/2005 and 42/2008) read as follows:

“(1) Every legal entity and every natural person has the right to respect for their personal integrity under the conditions prescribed by this Act.

(2) The right to respect for one's personal integrity within the meaning of this Act includes the right to life, physical and mental health, good reputation and honour, the right to be respected, the right to respect for one's name and privacy of personal and family life, freedom et alia.

“Damage is ... infringement of the right to respect for one's personal integrity (non-pecuniary damage).”

The relevant part of section 186(a) of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/91, 91/92, 58/93, 112/99, 88/01 and 117/03 reads as follows:

“A person intending to bring a civil suit against the Republic of Croatia shall first submit a request for a settlement to the competent State Attorney's Office.

Where the request has been refused or no decision has been taken within three months of its submission, the person concerned may file an action with the competent court.

In decision no. U-III-1437/2007 of 23 April 2008 the Constitutional Court found that the conditions of detention of a prisoner, P.M., in Lepoglava State Prison amounted to inhuman treatment. It also addressed the question of P.M.'s claim for just satisfaction. The relevant parts of the decision read:

“In particular, the Constitutional Court finds the [lower] courts' opinion that in this case an award for non-pecuniary damage cannot be made under section 200 of the Civil Obligations Act on the ground that such compensation claim is unfounded in law, unacceptable.

Section 1046 of the Civil Obligations Act defines non-pecuniary damage as infringement of the right to respect for one's personal integrity. In other words, every infringement of the right to personal integrity amounts to non-pecuniary damage.

Section 19(2) of the Civil Obligations Act defines the right to personal integrity for the purposes of that Act as: right to life, physical and moral health, reputation, honour, dignity, and name, privacy of personal and family life, freedom and other rights.

... it must be concluded that in this case there has been a violation of human, constitutional and personal rights because the applicant was placed in prison in conditions incompatible with the standards prescribed by the Enforcement of the Prison Sentences Act the conditions of which are also incompatible with the legal standards under Article 25(1) of the Constitution. For that reason the courts are obliged to award compensation for the infringement of the applicant's dignity.

The applicants complained under Article 8 of the Convention that the competent authorities had not taken all necessary steps to ensure their visiting rights in respect of E., who is the first applicant's son and the second applicant's grandson.

The applicants complained that the competent State authorities had failed to comply with their positive obligations to ensure regular contact with E., who is the first applicant's son and the second applicant's grandson, in order to preserve their family ties. They relied on Article 8 of the Convention which reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

In their initial observations, the Government argued that the first applicant had failed to exhaust domestic remedies since her constitutional complaint was still pending before the Constitutional Court. In their supplementary observations, filed with the Court after the adoption of the Constitutional Court's decision of 20 May 2009, the Government argued that the first applicant could no longer claim to be a victim of the violation claimed because the Constitutional Court had expressly found a violation of her right to respect for her private and family life and the applicant was now able to claim compensation from the State, a claim that had a clear basis in domestic law, namely sections 19 and 1046 of the Civil Obligations Act.

In the circumstances of the present case, the Court considers that the issues of the applicants' victim status and exhaustion of domestic remedies are intrinsically linked so that they have to be addressed together.

As regards the applicants' victim status, the Court reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive the applicant of his or her status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Amuur v. France, 25 June 1996, § 36, Reports of Judgments and Decisions 1996-III, and Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI). This acknowledgement and the redress are most often the result of the exhaustion of domestic remedies (see Koç and Tambaş v. Turkey (dec.), no. 46947/99, 24 February 2005).

The Court further reiterates that the machinery for the protection of fundamental rights established by the Convention is subsidiary to the national systems safeguarding human rights. The Convention does not lay down for the Contracting States any given manner for ensuring within their internal law the effective implementation of the Convention. The choice as to the most appropriate means of achieving this is in principle a matter for the domestic authorities, who are in continuous contact with the vital forces of their countries and are better placed to assess the possibilities and resources afforded by their respective domestic legal systems (see Swedish Engine Drivers' Union v. Sweden, February 1976, Series A no. 20, § 50; Chapman v. the United Kingdom [GC], no. 27238/95, § 91, ECHR 2001-I; and Sisojeva and Others v. Latvia [GC], no. 60654/00, § 90, ECHR 2007 II).

As to the exhaustion of domestic remedies, the Court reiterates that, according to Article 35 § 1 of the Convention, it may only deal with an issue after all domestic remedies have been exhausted. The purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, for example, Hentrich v. France, judgment of 22 September 1994, Series A no. 296-A, p. 18, § 33 and Remli v. France, judgment of 23 April 1996, Reports 1996-II, p. 571, § 33). Thus, the complaint submitted to the Court must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits. Nevertheless, the obligation to exhaust domestic remedies only requires that an applicant make normal use of remedies which are effective, sufficient and accessible in respect of his Convention grievances (see Balogh v. Hungary, no. 47940/99, § 30, 20 July 2004, and John Sammut and Visa Investments Limited v. Malta (dec.), no. 27023/03, 28 June 2005).

The Court notes that in its decision of 20 May 2009 the Constitutional Court expressly found a violation of the first applicant's right to respect for family life as guaranteed under Article 8 of the Convention. It held that the fact that the first applicant had not seen her child since 13 September 2005, coupled with numerous failures by both the administrative and judicial authorities involved in the case, led it to the inescapable conclusion that the conduct of the competent authorities amounted to a violation of the first applicant's right to respect for her family life guaranteed under Article 35 of the Constitution and Article 8 of the Convention”. The Constitutional Court's findings were not limited to any specific decisions of the national authorities but encompassed all proceedings related to the first applicant's visiting and access rights in respect of her child as well as the decisions concerning his guardianship.

In the Court's view, these findings of the Constitutional Court doubtlessly represent a decision in the first applicant's favour by which the relevant national authorities expressly acknowledged a breach of her right to respect for her family life, the same claim that she presented before the Court.

As regards the question of redress, the Court notes that the alleged violation concerns lack of contact between the first applicant and her minor child. It considers that redress in the first applicant's circumstances has two aspects: one is to establish contact between the first applicant and her minor child and the other is the possible award of compensation for the violation found by the Constitutional Court.

As regards the first aspect, the Court notes that the Constitutional Court ordered the Z. Welfare Centre to take all necessary steps to ensure effective meetings and contact between the first applicant and E. To that aim, on 8 June 2009, about two weeks after the adoption of the Constitutional Court's decision, the Z. Welfare Centre invited the first applicant to a meeting scheduled for 19 June. However, the first applicant insisted that the Centre organise a meeting with her child and only in these circumstances was she willing to attend another meeting in the Centre. Soon afterwards she went to work on a cruise ship and came back to Zadar only in the period between 8 December 2009 and 4 January 2010. Throughout 2010 the Centre continued to organise consultations with the family members and the first applicant's son E. However, E. repeatedly stressed that he did not wish to meet with the first applicant. The first applicant did not attend the consultations because she continued to work abroad.

In these circumstances it cannot be said that the Welfare Centre has not made adequate attempts to comply with the Constitutional Court's order. Therefore, the Court finds that the relevant national authorities offered an adequate possibility of redress to the first applicant.

As regards the issue of compensation, the Court notes that the right to respect for one's family life is regarded as part of “personal integrity” under section 19 of the Civil Obligations Act. Any infringement of one's “personal integrity” is, in turn, under section 1046 of the same Act considered to have caused non-pecuniary damage. Since the Constitutional Court expressly found a violation of the first applicant's right to respect for her family life, which falls within the category of “personal integrity” that gives the first applicant the realistic prospect of obtaining compensation under the above-cited provisions of the Civil Obligations Act.

In view of the above, the Court finds that the national authorities expressly acknowledged a violation of the first applicant's right to respect for her private and family life and offered her reasonable possibility of redress. However, she has not sought compensation in a civil action against the State. While the institution of civil proceedings for damages in itself cannot be regarded as an effective remedy in respect of lack of contact between the first applicant and her minor child, such proceedings in combination with the reasonable efforts made by the Centre in order to establish such contact, in the circumstances of the present case, do satisfy the requirements of effectiveness.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

The Court notes that the final decision concerning the second applicant's access rights in respect of her grandchild was given by the Z. County Court on 22 April 2008 and that she failed to lodge a constitutional complaint against that decision. In view of the Court's findings as regards the first applicant, the Court is of the opinion that a constitutional complaint alleging a violation of the second applicant's right to respect for her family and/or private life would provide an effective domestic remedy in the circumstances of the present case for the second applicant also.

In view of the facts of the case, the Court finds no particular circumstances that would absolve the second applicant from the obligation to exhaust domestic remedy, laid down in Article 35 of the Convention.

It follows that the application in respect of the second applicant must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> C and D v Croatia - 43317/07 [2010] ECHR 1706 (14 October 2010) URL: http://www.bailii.org/eu/cases/ECHR/2010/1706.html Cite as: [2010] ECHR 1706