On July 4, 2023, the European Court of Human Rights (hereinafter: the Court) issued a verdict in the caseKalochai Sobonja against Serbia by which he determined the violation of Article 8. paragraph 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the Convention).
The verdict was handed down unanimously by the Board of 3 judges.
The case refers to the issue of the violation of the right to respect for family life, which occurred as a result of the non-execution of a final court verdict, which determined the applicant to exercise parental rights independently over two minor children. Despite the executive procedure initiated by the applicant to enforce the judgment, the community of life with one child was never established, nor was a high-quality visitation regime.
The court found thatthe state authorities failed to take all necessary steps, which could reasonably be expected under the circumstances, to ensure the effective enjoyment of the applicant's parental rights or to enable her reunification with her son in any other way.
Failures were identified in terms of the length of the procedure, the diligence of the court and other competent authorities, as well as in the effectiveness of the measures taken, especially in terms of the obstructive behavior of the applicant's ex-husband, with whom the child was staying.
THE CIRCUMSTANCES CASES
By the judgment of the Municipal Court in Sombor from February 21, 2001, in favor of Frrepresentativee the independent exercise of parental rights over the two children she had in marriage with her ex-husband was determined. This judgment was confirmed by the District Court in Sombor and the Supreme Court.
Despite the fact that the applicant initiated enforcement proceedings before the Municipal Court in Sombor, the judgment remained unenforced, due to the insufficiently active action of the court and the center for social work regarding the obstructive behavior of her ex-husband, with whom the child was staying.
The applicant's ex-husband is duringIn 2003, he requested a review of the judgment of February 21, 2001, demanding the independent exercise of parental rights over the child who was with him.
In 2004, the Municipal Court in Sombor suspended the execution of the judgment from February 21, 2001 until the completion of the aforementioned procedure for reviewing the court's decision on child custody.
During 2008, the Municipal Court in Sombor accepted the request of the applicant's ex-husband and granted him independent exercise of parental rights over the child who was with him. This verdict was annulled in the procedure following the applicant's appeal, but in the repeated procedure, in 2008, the Municipal Court in Sombor issued an identical verdict. Subsequent legal remedies used by the applicant were unsuccessful, and the final decision was made by the Supreme Court in September 2009.
The enforcement procedure initiated in 2004 to enforce the judgment of the Municipal Court in Sombor from February 21, 2001 was suspended in June 2009.
After the ruling in which the child was entrusted to the father in 2008, the applicant was not able to establish quality contact with her son - visits lasted a maximum of two to three hours, and the boy visited his mother only a few times a year.
The applicant's ex-husband, in whose favor the Municipal Court in Sombor determined the independent exercise of parental rights, was finally convicted of child abduction by the same court, and was sentenced toimprisonment for six months, suspended for three years.
The Constitutional Court partially rejected and partially dismissed the applicant's constitutional appeal, which she filed due to the excessive duration of two sets of procedures to determine the exercise of parental rights, the state's failure to ensure that she maintains personal relations with the child who was with the father, as well as the state's failure to enable her to exercised his parental rights in the period between 1998 and 2009.
By the decision of the Constitutional Court of14.July 2011 the applicant's complaints about the length and fairness of the procedure for determining the exercise of parental rights were rejected as unfounded, while her claims aboutviolations of her parental rights dismissed because "she did not state constitutional and legal reasons for the claim of violation of those rights."
COMPLAINTS APPLICANTS AND THE PROCEDURE BEFORE THE COURT
The applicant presented complaints based on Article 8 of the Convention, which consisted in the fact that the state authorities failed to ensure that she maintained her personal relationship with her son, as well as to enforce the judgment of the Municipal Court in Sombor from February 21, 2001, which was passed in her favor, which eventually led to the adoption of a new judgment, which entrusted the exercise of parental rights over her son to her ex-husband.
DECISION OF THE COURT
Regarding admissibility, the Court first considered the compatibility of the applicationrationetemporis, s considering the fact that part of the events complained of by the applicant took place before the entry into force of the Convention in relation to the Republic of Serbia on March 3, 2004.
Taking into account all the circumstances of the case and the context of the complaints presented by the applicant, the Court decided totake into account all relevant eventsbefore that date, referring to the caseMilanović against Serbia, number 44614/07, paragraph 78.
The court first emphasized the basic principles that apply in terms of Article 8 of the Convention when it comes to the relationship between parents and children.
The mutual enjoyment of parents and children in the common society represents the basic element of "family life" in the sense of Article 8 of the Convention. It is the duty of judicial authorities, in cases concerning the relationship of a person with his or her child, to show extreme diligence, because the passage of time can lead to the risk ofde facto solving things.
In the applicant's case, the Court found that the national judicial authorities had failed to fulfill their obligation to act promptly and to show the extraordinary diligence that was required. Examination of the case, which lasted over 10 years, of which 5 years fell under the jurisdiction of the Courtratione temporis, it resultedde facto determining the matter and prevented the applicant from developing a meaningful relationship with her son.
The court particularly pointed out that the task of the state authorities was made difficult due to bad relations in the family, but that this circumstance in itself cannot release the authorities from their obligations in accordance with Article 8 of the Convention. It is a fact that for years the local authorities did not undertake sufficiently effective measures in response to the obstructive behavior of the applicant's ex-husband, nor did they work sufficiently to achieve reconciliation of the conflicting interests of the parties to the dispute. Such action by state authorities cannot be considered an adequate response to the urgency of the situation.
Therefore, the Court concluded that the Serbian authorities failed to take all necessary steps, which could reasonably be expected in daunder those circumstances, to ensure the effective enjoyment of the applicant's parental rights or to enable her reunification with her son in any other way.
Accordingly, the Court established a violation of Article 8, paragraph 1 of the Convention.
FAIRLY SATISFACTION (Article 41 of the Convention)
The court obliged the Republic of Serbia to pay the applicant an amount of EUR 4,000 for non-material damages and an amount of EUR 2,500 for the costs of the proceedings.