Sobota-Gajic v Bosnia and Herzegovina
| Judge | JUDGE CASADEVALL (PRESIDENT),JUDGES BONELLO,PAVLOVSCHI,GARLICKI,MIJOVIC,SIKUTA,HIRVELA,MRS F ARACI (DEPUTY SECTION REGISTRAR) |
| Judgment Date | 06 November 2007 |
| Court | European Court of Human Rights |
Human rights – Private and family life – Custody – Abduction – Applicant being awarded custody of two children following divorce – Son remaining with father – Son being returned to applicant – Father abducting son – Son not being returned to applicant for four-and-a-half years – Whether national authorities having failed to take all reasonable measures to facilitate applicant’s reunion with son – Whether violation of applicant’s right to family life – Whether applicant entitled to just satisfaction in respect of non-pecuniary damage – European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, art 8.
The applicant married in 1992 and had two children, A and B. Following an alleged episode of domestic violence, the applicant left her husband in 2001. She succeeded in taking A, but B remained with his father. On 15 May 2001 the applicant asked the local social work centre to award her custody of the children. On 19 February 2003 the local first instance court granted her a divorce and awarded her custody of A and B. The father appealed. On 28 February 2003 the social work centre granted the applicant provisional custody of the children pending the entry into force of the judgment of 28 February 2003. The decision was immediately enforceable. On 12 March 2003 the applicant initiated proceedings for the enforcement of the decision of 28 February 2003. On 18 March 2003 the social work centre forwarded the decision to the Department for General Administration for enforcement. Following a lengthy exchange of letters with the social work centre and an initial refusal to enforce the decision, on 30 July 2003 the department agreed to enforce it. On 18 August and 26 September 2003 the department carried out two unsuccessful attempts to enforce the decision of 28 February 2003. On 18 December 2003 the department handed over B to the applicant. On the next day the father abducted B. On 22 December 2003 the applicant requested the department to enforce the decision of 28 February 2003 anew. On the same day she submitted a criminal complaint against the father. On 16 January 2004 the department concluded that the decision of 28 February 2003 had been enforced and terminated the enforcement proceedings. In May 2004 the father was indicted on a charge of child abduction, but following an initial appearance, no further steps were taken prior to his
death in January 2006. After his death B resided with his paternal grandmother. The applicant again asked the social work centre to return B, but B objected and the social work centre decided not to use coercion. In February 2006 the social work centre decided not to award custody of B to his grandmother. In March 2006 the grandmother was convicted of subjecting B to psychological violence, and the court ordered the social work centre to secure the prompt return of B with police assistance if necessary. In May 2006 B again objected to being returned, and in May 2006 the local police refused to assist the social work centre. B was eventually returned to the applicant by the social work centre in January 2007. The applicant complained to the European Court of Human Rights that the national authorities had failed to take all reasonable measures to facilitate her reunion with her son, regardless of several domestic decisions in her favour, in violation of art 8 of the European Convention on Human Rights.
Held– (1) The essential object of art 8 was to protect the individual against arbitrary action by the public authorities. There were in addition positive obligations inherent in an effective ‘respect’ for family life. Article 8 included a right for parents to have measures taken that would permit them to be reunited with their children and an obligation on the national authorities to take such action, but that obligation was not absolute. The court had to ascertain whether the national authorities had taken all necessary steps to facilitate reunion as could reasonably be demanded in the special circumstances of the case, and whether they had struck a fair balance between the interests of all the persons concerned and the general interest in ensuring respect for the rule of law. In a case like the instant case, the adequacy of a measure was to be judged by the swiftness of its implementation as the passage of time could have irremediable consequences for relations between the children and the parent who did not live with them. In the instant case, the applicant had made her first submission to the national authorities with a view to reuniting with her son on 15 May 2001, and the actual reunion had taken place on 22 January 2007. The impugned situation had therefore lasted four-and-a-half years after the ratification of the Convention by Bosnia and Herzegovina. Owing to inter-departmental disputes over administrative responsibilities the enforcement of the order of 28 February 2003 had lasted more than nine months. The father had abducted B the day after his handover. Domestic law apparently did not provide for an administrative order for the return of a child to be enforced more than once, and in any event the order of 28 February 2003 had ceased to have effect on 7 September 2004, on the termination of the matrimonial proceedings. On 22 December 2003 the applicant submitted a criminal complaint against the father. The government had not explained why the criminal proceedings had remained at a preliminary stage until the death of the father (that is, more than two years after the abduction). On 7 September 2004, while the criminal proceedings against the father were still pending, the judgment of
19 February 2003 entered into force. It ordered, among other things, the return of B to the applicant. While it was true that the applicant could have initiated proceedings for the enforcement of that order, she was not required to do so since she had already submitted a criminal complaint which could have led to an order for the return of B. On 31 March 2006 the court ordered the social work centre to promptly secure the return of B with police assistance if necessary. That order, although immediately enforceable, was not enforced until 22 January 2007, triggered some confusion as to the responsibility for enforcement. The local police also refused to provide assistance, regardless of the clear instructions of the court. There was again no indication that the applicant had contributed to any of those delays. It was true that the reunion of a parent with a child who had lived for some time with the other parent might not be able to take place immediately and without the necessary preparation, particularly in the circumstances of B’s case. However, there was no evidence that any such preparatory work explained the delays by the authorities. There had accordingly been a violation of art 8 of the Convention; Ignaccolo-Zenide v Romania [2000] ECHR 31679/96, Nuutinen v Finland [2007] ECHR 45830/99 considered.
Cases referred to in judgmentAmuur v France [1996] ECHR 19776/92, ECt HR.
Andersson v Sweden (1992) 14 EHRR 615, ECt HR.
Eriksson v Sweden (1989) 12 EHRR 183, [1989] ECHR 11373/85, ECt HR.
Hokkanen v Finland[1995] 2 FCR 320, ECt HR.
Iatridis v Greece (just satisfaction) [2000] ECHR 31107/96, ECt HR.
Ignaccolo-Zenide v Romania [2000] ECHR 31679/96, ECt HR.
Jelicic v Bosnia and Herzegovina [2005] ECHR 41183/02, ECt HR.
Karadzic v Croatia[2006] 1 FCR 36, ECt HR.
Keegan v Ireland (1994) 18 EHRR 342, [1994] ECHR 16969/90, ECt HR.
Nuutinen v Finland [2000] ECHR 32842/96, ECt HR.
Olsson v Sweden (No 2) (1992) 17 EHRR 134, [1992] ECHR 13441/87, ECt HR.
Sylvester v Austria[2003] 2 FCR 128, ECt HR.
Tomic v Serbia[2007] 2 FCR 449, ECt HR.
Visnjevac v Bosnia and Herzegovina [2006] ECHR 2333/04, ECt HR.
ApplicationThe applicant, Ms Verica Sobota-Gajic, lodged an application with the European Court of Human Rights against Bosnia and Herzegovina whereby she alleged that the national authorities failed to discharge their positive obligations to secure her rights under art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. The facts are set out in the judgment of the court.
6 November 2007...
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