THIRD SECTION
 
 
 
 
 
 
 
CASE OF MILOVANOVIĆ v. SERBIA
 
(Application no. 56065/10)
 
 
 
 
 
 
 
JUDGMENT
 
 
STRASBOURG
 
8 October 2019
 
 
 
FINAL
 
08/01/2020
 
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Milovanović v. Serbia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
 Vincent A. De Gaetano, President,
 Georgios A. Serghides,
 Paulo Pinto de Albuquerque,
 Branko Lubarda,
 Alena Poláčková,
 María Elósegui,
 Gilberto Felici, judges, 
and Stephen Phillips, Section Registrar,
Having deliberated in private on 3 September 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 56065/10) against the Republic of Serbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Serbian national, Ms Mirjana Milovanović (“the applicant”), on 14 September 2010. 2. The applicant was represented by Mr Z. Tošković, a lawyer practising in Belgrade. The Serbian Government (“the Government”) were represented by their former Agent, Mr S. Carić, who was substituted by their Agent, Ms N. Plavšić. 3. The applicant alleged that the Serbian authorities had failed to take the necessary measures to enforce the courts’ decisions in a child custody-related matter and to facilitate her reunion with her children since 2002. 4. The application was initially allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). 5. On 6 September 2012 the application was communicated to the Government. On the same date, the President of the Chamber also gave priority to this application in accordance with Rule 41 of the Rules of Court. 6. On 1 February 2014 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Third Section (Rule 52 § 1). THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
7. The applicant was born in 1964 and lives in Belgrade. 8. In May 1996 she and her husband M.M. had twins, a boy D. and a girl K. 9. The applicant left the matrimonial home in March 2001 and initially moved with K. to her parents’ house. It would appear that D. joined them in September 2001, when the children started attending preschool. In the meantime, both children were temporarily staying together with the applicant or the respondent. 10. In January 2002, when the applicant was taking the children to a medical check-up, M.M. intersected them on their way back home, took the children from the applicant and from then until 2010 systematically prevented her having any contact with them, on threat of violence. The respondent then moved with the children and their older stepbrother into a house that he had started building. A. First set of custody proceedings, including adoption of an interim order
11. On an unspecified date in 2002 the applicant applied to the then Belgrade Second Municipal Court (Drugi opštinski sud – “the Municipal Court”) for a divorce, sole custody of both children and child maintenance (razvod, vršenje roditeljskog prava i izdržavanje). 12. On 10 June 2002 the court pronounced the divorce and decided on custody of the children in the applicant’s favour. The respondent’s contact rights and child maintenance payments were also determined. 13. On 5 September 2002 the Belgrade District Court (Okružni sud – hereinafter “the District Court”) upheld the divorce and quashed the remainder of the decision. 14. On 25 November 2002 the applicant sought interim custody of the children until the conclusion of the civil proceedings. The applicant referred to (a) her very good living conditions and the entirely inadequate living conditions in the respondent’s house; (b) repeated physical violence by the respondent against her and the children; and (c) the children’s absence from preschool from January 2002. 15. On 27 February 2003 the Municipal Court issued an interim custody order (privremena mera o vršenju roditeljskog prava) and, in so doing, specifically ordered the respondent to hand over the children to the applicant within twenty-four hours, pending the final outcome of the ongoing civil proceedings. It became enforceable on 14 June 2003 but remained unenforced. 16. On 6 October 2005 the Municipal Court (i) granted sole custody of the children to the applicant (poverio decu na negu, staranje i vaspitavanje majci); (ii) specified the respondent’s contact rights; (iii) ordered the respondent to pay child maintenance; and (iv) prohibited contact between the respondent and the children for three months to enable the children to restore emotional ties with the applicant. The court specified, inter alia, that the respondent’s very destructive behaviour and appalling living conditions, especially the lack of hygiene, windows and water in his house, required the children’s immediate removal. 17. The judgment became final on 16 November 2006 and enforceable on 9 January 2007, as the court bailiffs had attempted unsuccessfully to serve it on the respondent beforehand. B. Second set of custody proceedings (request for the revision of the judgment of 6 October 2005)
18. On 3 June 2008 the respondent filed a new civil claim (tužba), seeking sole custody. 19. On 23 June 2010 the Belgrade Court of First Instance (Osnovni sud) granted custody to him and ordered the applicant to pay child maintenance. On 8 December 2010 the Belgrade Appeals Court (Apelacioni sud) quashed that judgment and remitted the case to the lower court with numerous instructions on their earlier failures and how to examine the case properly and thoroughly. 20. In 2011 the Court of First Instance terminated the proceedings, considering the civil claim withdrawn given that the respondent had failed to appear at a scheduled hearing. The respondent did not appeal. C. Enforcement of the interim custody order of 27 February 2003
21. Following a request by the applicant dated 18 June, on 26 June 2003 the Belgrade Fourth Municipal Court (hereinafter “the enforcement court”) ordered the enforcement of the interim order of 27 February 2003 (see paragraph 15 above). On 30 July 2003 the order was served on the respondent, who was advised to comply with it. 22. The respondent failed to comply and on 7 October 2003 the enforcement court ordered him to pay a fine of 5,000 Serbian dinars (RSD – approximately 74 euros (EUR)) within three days for failing to hand over the children. On 20 October 2003 the court bailiff went to the respondent’s house to enforce the fine, but found only the respondent’s mother and children. The bailiff recounted that the family had been living in poverty and that the house itself had been in a poor and messy state without a single valuable asset. 23. The first attempt to reunite the applicant with the children took place on 2 December 2003. The respondent’s mother maintained that he had moved out with the children to a new address she did not know. The bailiff noted that the children’s clothes and school bags were still in the room. 24. On 4 December 2003 the enforcement court ordered the respondent to pay a new fine of RSD 20,000 (approximately EUR 287) and stated that another fine of RSD 25,000 would be imposed if he failed to comply with that order within an additional three days. In an attempt to enforce the fine, the court bailiff noted again that no valuable movable assets could be identified in the respondent’s house. 25. On 17 June 2004 the enforcement court imposed the above-mentioned fine of RSD 25,000 (approximately EUR 355) on the respondent and stated that if he again failed to comply with the order within three days, the applicant’s custody rights would be enforced forcibly. 26. On 2 and 30 November 2004, in two new reunion attempts, the respondent’s house was found empty. 27. The transfer of child custody scheduled for 9 May 2005 had to be cancelled for failure to duly summon the parties, social services and police officers. 28. It appears that following a call from the Ministry of Justice the enforcement court scheduled another transfer of custody to be carried out on 3 June 2005 on the premises of the children’s school. The court bailiff, the police, the applicant and the children were present. The Rakovica Social Care Centre (hereinafter “the RSCC”) sent a lawyer rather than its expert team composed of a child psychologist, social pedagogue and social worker. The school psychologist stated that she had already tried to talk to the children, who had very little contact with the school staff. They had been terrified and rejected the idea of being reunited with the mother. The applicant suggested that to avoid any further fear and trauma the children, who were crying, should not be handed over forcibly because there were no psychologists or other competent experts present to provide adequate assistance to them. 29. On 18 July 2005 the applicant asked the RSCC to assist by providing its team of experts for the next transfer of custody in order to enable effective enforcement of the interim custody order. 30. On 24 August 2005 the enforcement court instructed the RSCC to submit an opinion on whether the applicant was suitable, ready and able to have custody of the children, if it were awarded to her, and whether it would be in the best interests of the children. 31. In a report supplied on 8 September 2005, the RSCC experts repeated their apparent earlier findings provided within the civil proceedings that the applicant had respectable parental capacity and was better suited to have custody. They also reiterated that they had asked for the court proceedings to be dealt with urgently, anticipating that the respondent would obstruct any kind of contact between the applicant and their children. As regards the applicant’s conduct, they considered that she had been primarily focused on defending herself from the respondent’s violence rather than protecting her children from poor living conditions. That is to say, when the interim custody order had come into force, there had been no legal impediment to her taking the children. However, in the efforts to enforce her rights, when she could have been expected to protect the children by taking them to her house regardless of the risk to her from the respondent, she showed a lack of efficiency and emotional engagement, relying on “a unrealistic expectation that she would be protected from the respondent’s violence if the State institution helped her in the execution of the custody transfer”. As the children had been alienated from the applicant, and branded a bad mother by the respondent, the children had a perception about their father as the only parent interested in raising them. The RSCC considered that disrupting the children’s current living arrangements with the respondent would not be in their best interests. 32. Referring to the above report and the children’s objection to being reunited with the applicant on 3 June 2005, the enforcement court terminated (obustavio) the proceedings to enforce the interim custody decision on 16 September 2005. 33. The applicant received the decision of 16 September three months later and contested it on 21 December 2005 (izjavila prigovor), recalling the delivery of the first-instance judgment and complaining that it was not open to an administrative body to amend a judicial decision. In the meantime, on 9 November 2005 the applicant informed the court that the first-instance judgment of 6 October 2005 had been delivered in her favour (see paragraph 16 above). 34. On 28 February 2006 the RSCC decided of its own motion to initiate corrective supervision of the respondent’s exercise of parental rights and requested that he attend meetings at the Mental Health Institute in Belgrade (Institut za mentalno zdravlje  hereinafter “the MHI”). The reasons for this measure were the respondent’s continuous reluctance to enable contact between the applicant and their children, instilling negative attitudes towards their mother and preventing any emotional and caring links between them, unwillingness to comply with the interim custody order and disregard for the RSCC’s warning about the detrimental effects of that behaviour on his children’s development. It would appear that the respondent did not comply with his obligation to attend therapy sessions, and that the decision was not enforced. 35. On 10 April 2006 the second-instance court quashed the decision to end the proceedings to enforce the interim custody decision of 16 September 2005 (see paragraph 32) on several grounds, stating, inter alia, that the RSCC’s report had been prepared outside the RSCC’s statutory competence to give such an opinion in the course of enforcement proceedings. 36. On 19 June 2006 the enforcement court, referring to the instructions given by the second-instance court, invited the RSCC to consult the court’s case file in order to facilitate the protection of the best interests of the children. 37. The RSCC’s lawyer and social worker consulted the court’s case file a year later, on 28 June 2007 and in its report of 6 August 2007 stated that it would be in the best interests of the children to have the interim custody order enforced. The RSCC also informed the court that it had initiated civil proceedings against the respondent, requesting that he be deprived of his parental rights (see under G.2 below). 38. Owing to inactivity on the part of the enforcement court, the applicant’s lawyer directly approached the court on 27 November 2007, supplying it with the phone numbers and a probable address of the respondent, and on 25 December 2007 when proposed that the transfer of the children be scheduled after the school holidays as the children would then be at school again. 39. On 7 February 2008 the enforcement court invited the RSCC’s expert team and the school pedagogue and psychologist to provide assistance in facilitating the custody transfer scheduled for 20 February 2008. It also invited the police, warning them of the respondent’s tendency towards aggressive behaviour. 40. On 19 February 2008 the applicant again informed the enforcement court that the judgment in her favour had become final and suggested that the court should allow enforcement of the custody order the following day for that reason. On the same date the court terminated the enforcement of the interim custody order of 2003, since it was no longer valid, and instructed the applicant to submit a new enforcement request within three days in view of the final judgment in her favour. The decision of the enforcement court became final on 31 March 2008. D. Enforcement of the civil judgment of 6 October 2005
41. Following the applicant’s request of 27 February 2008, on 13 March 2008 the same enforcement court issued an enforcement order in respect of the judgment of 6 October 2005. 42. The respondent appealed on 1 April 2008, but failed to sign his appeal. On 7 April 2008 the enforcement court instructed its bailiff to look for the respondent at his house to obtain his signature and verify that he had complied with the enforcement order. In the transcript of 9 May 2008 the bailiff reported that he had found the respondent, who had signed the appeal but had not yet complied with the order. The appeal was sent to the applicant on 5 June and she submitted her reply on 12 June 2008. 43. On 24 June 2008 the enforcement court transferred the case file to the Municipal Court, as the latter needed to consult it in respect of the criminal proceedings pending before it (see under G.1 below). 44. On 13 November 2008 and 27 January 2009 the enforcement court asked to have the case file back, which it forwarded to the District Court on 10 February 2009 to decide the respondent’s appeal of 1 April 2008. 45. On 23 April 2009 the District Court rejected the respondent’s appeal. The case file arrived at the enforcement court on 5 June 2009. 46. Between 7 July 2009 and 8 July 2010 the enforcement court scheduled eight hearings, of which five were held. 47. On 7 July 2009 the enforcement court heard the parties and decided to hear the children at the following hearing. The court could not hear the opinion of the RSCC’s expert as planned. It had been informed by the expert that, despite the fact that she had officially requested to be exempted from the commitment because she was the applicant’s bridesmaid, the RSCC had decided to send her to the hearing as their representative. According to her statement and the case file, she had not been engaged in other RSCC activities or reports in the case. The court postponed the hearing and requested the RSCC to submit an urgent opinion on the means of enforcement, that is to say, could it be expected that the respondent would comply with the judgment if fined or would forcible enforcement be required. 48. On 16 July 2009 the enforcement court complained to the Labour and Social Policy Ministry about the RSCC’s conduct and requested the Ministry to inspect the RSCC’s case file. The Ministry took the view that the steps taken by the RSCC had not been in breach of domestic law, but had not been taken in a professional manner. 49. On 20 October 2009 a newly formed RSCC expert team advised the court to order the respondent to commit himself to bringing the children to a specialist institution, which would organise counselling (savetodavno-terapijski rad) for the whole family aimed at preparing for the custody transfer. 50. On 22 October 2009 the applicant again requested forcible enforcement of the judgment in the presence of the RSCC’s expert team, which could prepare the children in advance for the custody transfer. 51. At the hearing of 23 October 2009 the enforcement court heard the children, who expressed their wish to meet their mother, as well as their grandparents and uncle whom they had only heard about. They suggested to spend weekends at their mother’s house. The court ordered counselling for the family at the MHI and that the children would spend the weekends at the mother’s house. It instructed the parties to comply with the order and provide fortnightly reports about the course of contact and counselling, and the RSCC to supervise the whole process and inform it of the developments. 52. On 12 November 2009 the applicant informed the enforcement court that the respondent had been obstructing her contact rights. 53. On 16 November 2009 the children were examined by the MHI, whose experts found no psychiatric disorder or developmental disability requiring any psychiatric treatment. The MHI appears to have understood that they were to carry out an expert assessment of the parties’ ability to have custody and, therefore requested payment in advance. 54. On 20 November 2009 the enforcement court clarified its request, describing the complex circumstances of the case and asking the MHI to specify how they could help the court to prepare the children for the reunion with their mother. 55. On 24 December 2009 the MHI explained that they had not been accredited for family mediation and advised the court to direct the family to the Marriage and Family Counselling Office of the Belgrade Social Care Centre. On 23 February 2010 the RSCC advised against this, given that further institutional work could make the children more resistant and put at risk the ongoing development of trust and cooperation between the RSCC and the children. 56. In the meantime, on 27 November and 16 December 2009 the RSCC informed the court that the children had slept once at their mother’s house, while on the other days they had been impeded. It advised that the enforcement proceedings be stayed until the treatment at the MHI was completed. In addition, the hearings scheduled for 17 December 2009 and 3 February 2010 were adjourned because to the presiding judge and the RSCC had other commitments. 57. At the hearing of 3 March 2010[1] the applicant challenged the RSCC’s advice and requested forcible enforcement. The applicant explained that there had been no particular developments and that the court’s order of 23 October 2009 had not been complied with. She had been seeing the children after school and they had only been at her home three times for two or three hours. The RSCC stated that the children should not be put under pressure, but should see the applicant in accordance with their wishes and needs. It advised against forcible enforcement, but recommended further counselling for the family as it would be in the best interests of the children. The RSCC’s social pedagogue could not give a precise proposal on the applicant’s further contact with the children. 58. Following a written opinion provided by the RSCC on 12 March 2010 and the children’s statements, on 8 April 2010 the enforcement court reversed the decision of 23 October 2009 by reducing the applicant’s contact with the children to Tuesdays and Sundays, for four and eight hours respectively. It also ordered the RSCC to continue counselling, supervise the contact and provide regular reports. The children expressed the wish to continue living with their father and visit the applicant. 59. The hearing scheduled for 29 June 2010 was adjourned because the presiding judge had other commitments. 60. On 8 July 2010 the children rejected the applicant’s proposal to spend two weeks of their summer holidays together outside Belgrade, but agreed to spend some time with her in Belgrade when they wished. The applicant informed the court that contact with the children was not regular as ordered by that court. The court ordered the RSCC to provide reports once every two months about the regularity of contact between the applicant and her children and the children’s behaviour throughout. It appears that the RSCC did so on 29 October 2010. 61. On 11 November 2010 the enforcement court transferred the case file to the trial chamber of the Belgrade Court of First Instance to be consulted in respect of the pending criminal proceedings for child abduction against the respondent (see paragraph 70 below). The case file stayed with the Belgrade Court of First Instance until 23 January 2012, when both the enforcement and criminal files were transferred to the Constitutional Court to decide the applicant’s constitutional appeal of 26 February 2009. No records of the enforcement court’s or the RSCC’s work during this period, if any, were made available to the Court. 62. At the hearing of 15 March 2013 the RSCC’s psychologist noted that the children had started seeing the applicant more often as of December 2012, but still did not want to live with her. The court instructed the RSCC to continue implementing the “Intervention Plan” and provide reports once every two months to the court. 63. The final custody judgment of October 2005 remained unenforced. E. The applicant’s contact with the children
64. In summary, between January 2002 and October 2009 the applicant saw the children during school breaks or shortly after school on weekdays. It would appear that as of October 2009 the applicant was able to see her children in the presence of the respondent and/or the RSCC’s representatives for short periods of time only, and not as had been envisaged by the civil or enforcement courts. From July 2010 to the end of 2011 the children visited the applicant for several hours either on Saturdays or Sundays. According to the 2013 report (see paragraph 62 above), the children had started seeing the applicant more often. The Court has not received any factual update about the contact since then. F. Constitutional appeal process
65. On 26 February 2009 the applicant filed a constitutional appeal with the Constitutional Court of Serbia (Ustavni sud Republike Srbije), seeking redress for the non-enforcement of the final custody judgment and the prior interim custody order. She also complained about the length of the pending criminal proceedings concerning child abduction. She relied on Article 32 of the Constitution, which corresponds to Article 6 of the Convention (see paragraph 83 below). 66. On 23 May 2012 the Constitutional Court found a violation of the right to a fair trial as regards the protracted length of the enforcement proceedings in respect of the final custody judgment of October 2005. It dismissed the remainder of the appeal. The decision was sent to the applicant on 5 July 2012. As regards the violation found, the Constitutional Court stated, relying on several of the Court’s judgments in child custody cases, that the enforcement court had been passive, protracting the proceedings unnecessarily and failing to take the necessary measures to enforce the judgment. It specifically noted that the first hearing had been held after a year and four months, that the respondent had stopped obstructing the enforcement at one point, and that the case file had been held by the criminal court twice for a long period of time. It ordered the enforcement court to take all the measures necessary to bring the impugned enforcement proceedings to a conclusion as soon as possible. The applicant did not seek any compensation in her constitutional appeal at the time, which is why no claim in that regard appears to have been considered. The Constitutional Court dismissed (odbacio) the complaint about the non-enforcement of the interim custody order as out of time. The enforcement proceedings had been terminated in February 2008, while the applicant had filed her constitutional appeal in February 2009. The Constitutional Court lastly found that the applicant could not complain about the length and outcome of the criminal proceedings in which she had participated only as an injured party without seeking damages by filing a civil-party claim (predlog za ostvarivanje imovinsko-pravnog zahteva). 67. On 2 August 2012 the applicant filed a claim for damages with the Commission for Damages in respect of the Constitutional Court’s acknowledgment of the violation of her right to fair trial. She does not appear to have received any response. G. Additional relevant facts
68. There are records in the case file of official complaints by the applicant of the respondent State’s failure to enforce the said interim custody order and the final civil judgment. These were addressed to: (i) the enforcement court on 10 and 23 March 2005, 11 April 2005, 1 June 2005, 19 July 2005, 9 November 2005, 10 March 2006, 30 October 2006, 19 January 2007, 10 September 2007, 22 October 2009, and 18 March 2010; (ii) the President of the District Court on 19 January 2007; and (iii) the Ministry of Justice on 25 April 2005. She also requested the support and engagement of the RSCC on numerous occasions and addressed the Public Prosecutor Office. 1. The respondent’s criminal conviction and subsequent criminal charge
69. On 16 June 2006 the Municipal Court found the respondent guilty of failure to hand over the children to the person entitled to have custody (parental child abduction) between 16 June 2003 and 27 May 2005, the latter being the date of the respondent’s indictment by the Public Prosecutor’s Office. He was sentenced to four months in prison, suspended for two years. The applicant joined the proceedings as a civil party. It would appear that the judgment was served on the respondent on 11 October 2006 and became final on 19 October 2006. 70. On 14 Match 2007 the applicant informed the Public Prosecutor’s Office that the respondent had refused to comply with the custody decisions and hand over the children. She asked the Prosecutor to indict the respondent or to request the suspended imprisonment. On 17 May 2007 the applicant filed a bill of indictment as a subsidiary prosecutor against the respondent for his continuing failure to hand over their children to her. The Public Prosecutor’s Office took over the prosecution on 29 January 2008. On 27 December 2012 the court acquitted the respondent, finding his statement that he had not prevented enforcement of the orders concerning transfer of custody or contact with the children to be truthful. The criminal proceedings were still pending at second instance at the time the parties had exchanged their observations. 2. Proceedings for deprivation of parental rights
71. On an unspecified date in 2007 the RSCC instituted proceedings against the respondent, requesting that he be deprived of his parental rights (roditeljsko pravo) on the grounds of abusive behaviour and child abduction. The applicant joined the proceedings as an intervener (umešač). She explained that she had filed for divorce as the respondent had been physically aggressive towards her in front of the children. 72. On 8 September 2008 the competent court deprived the respondent of his parental rights, but it would appear that that decision was subsequently quashed and that the RSCC withdrew its initial request, finding it unsuitable given that the respondent was the only carer that the children were used to living with. 3. Other relevant facts
73. At the beginning of April 2005 the respondent’s neighbour filed a complaint (podnela prijavu) with the RSCC alleging various kinds of child abuse. The complaint was transferred to the police on 5 April 2005, who appear to have refused to investigate the allegations owing to alleged formal deficiencies in the complaint. It would also appear that a RSCC’s psychologist lodged a criminal complaint against the respondent because of his alleged violence threats against her and her children. II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Family law
74. Both relevant Family Acts, 1980 Marriage and Family Relations Act (Zakon o braku i porodičnim odnosima; published in the Official Gazette of the Socialist Republic of Serbia - OG SRS - nos. 22/80, 11/88 and in the Official Gazette of the Republic of Serbia - OG RS - nos. 22/93, 25/93, 35/94, 46/95 and 29/01) and 2005 Family Act (Porodični zakon; published in OG RS no. 18/05, entered into force on 1 July 2005 in respect of most articles) provided, inter alia, that all family-related disputes involving children, including enforcement proceedings, had to be dealt with by the courts urgently (see Articles 391 and 204 respectively). 75. A child who has reached the age of fifteen and who is able to reason has the right to decide which parent he or she is going to live with (Article 60(1) of the 2005 Act), while a child who is ten years old may freely and directly express an opinion within judicial and administrative proceedings whenever his or her rights are at stake (ibid., Article 65). A child has the right to maintain a personal relationship with the parent he or she does not live with, unless there are reasons to deprive that parent partially or fully of their parental rights or in cases of domestic violence (ibid., Article 61). 76. A complaint concerning the work of social services may be filed with the ministry competent for family protection by a guardian, a ward who is mentally capable or by any person who has a legal interest. The competent ministry must respond to the complaint within thirty days of receiving the complaint (ibid., Article 338). B. Child custody-related enforcement rules applicable at the material time
77. Enforcement of the 2003 interim custody measure was to be pursued in accordance with the 2000 Act (Zakon o izvršnom postupku; published in OG FRY nos. 28/00, 73/00 and 71/01), whilst the enforcement of the 2005 final custody judgment was to be on the basis of the 2004 Act (Zakon o izvršnom postupku; published in OG RS no. 125/04) until 17 September 2011 and the 2011 Act (Zakon o izvršenju i obezbeđenju; published in OG RS nos. 31/11 and 99/11) thereafter. 78. All three Acts provided that all enforcement proceedings were to be conducted urgently (Article 4(1), Articles 5(1) and Article 6(1) respectively). 79. While placing special emphasis on the best interests of the child, the 2000 and 2004 Acts provided that there was an initial period of three days for voluntary compliance with a child custody order. Beyond that, however, fines were to be imposed and, ultimately, if necessary, the child had to be forcibly transferred, in cooperation with the social care center (Articles 209 and 224 respectively). 80. Ongoing enforcement proceedings must be terminated by the court of its own motion if the enforcement document in question has in the meantime been set aside by a final decision rendered within a separate set of proceedings (Article 68(1) of the 2004 Act). 81. Articles 224 to 235 of the 2011 Act provide more comprehensive rules for the enforcement of custody and contact orders than the previous legislation, as well as specific tasks for the enforcement court, psychologists and other specialist institutions. A hearing within the enforcement proceedings should be scheduled only exceptionally and specifically if the best interests of child whom it concerns so requires (Article 227(2)). The enforcement court must, after examining the particular circumstances of the case, choose the means of enforcement, whether that be to enforce the custody order forcibly, impose a fine or sentence to imprisonment a person who does not adhere to the custody decision outlined by the competent court (Article 228). C. Constitutional appeal process
82. The Constitution of the Republic of Serbia (Ustav Republike Srbije; published in OG RS no. 98/06) entered into force on 8 November 2006. The Constitutional Court declines jurisdiction ratione temporis to decide on the constitutional appeals concerning the decisions and/or acts that occurred before that date (see Practice directions adopted by the Constitutional Court as regards the examination of and ruling on constitutional appeals, Stavovi Ustavnog suda u postupku ispitivanja i odlučivanja po ustavnoj žalbi se odnose na postupak prethodnog ispitivanje ustavne žalbe, adopted on 30 October 2008 and 2 April 2009). 83. Article 32 § 1 provides, inter alia, for a right to a hearing within a reasonable time. The Constitution does not contain a provision on the right to respect for family life, which corresponds to Article 8 of the Convention. Article 65 guarantees that parents have a right and responsibility to support and provide an upbringing and education for their children, in which they are equal. THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON ACCOUNT OF THE LENGTHY CONSTITUTIONAL PROCEEDINGS
84. The applicant complained that the length of the proceedings before the Constitutional Court had exceeded the “reasonable time” requirement of Article 6 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
85. The Government contested that argument, emphasising that a more rapid examination of the case, despite its sensitivity, had not been and would not be possible in this or similar cases in view of the Constitutional Court’s excessive caseload of 6,000 pending cases. They also referred to the Court’s finding in the case of Janković v. Croatia ((dec), no. 43440/98, ECHR 2000‑X), that proceedings before the Croatian Constitutional Court, which had lasted three years, eleven months and six days, had not been excessively long. 86. The Court finds that the proceedings before the Serbian Constitutional Court come clearly within the scope of Article 6 of the Convention (see, generally, Süßmann v. Germany, 16 September 1996, §§ 39-42, Reports of Judgments and Decisions 1996‑IV, and Tričković v. Slovenia, no. 39914/98, §§ 36-41, 12 June 2001). 87. The Court notes that the proceedings, which began on 26 February 2009, the date on which the applicant appealed to the Constitutional Court, and ended on 5 July 2012, the date on which its decision of 23 May 2012 was served on her, lasted nearly three years and five months. 88. The Court will assess the reasonableness of the length of the proceedings in the light of the particular circumstances of the case and having regard to the criteria laid down in its case-law, in particular the complexity of the case, the conduct of the applicant and the competent authorities, and the importance of what was at stake for the applicant in the litigation (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 124, ECHR 2000‑XI). In this connection, the Court reiterates that exceptional diligence is required in dealing with child custody-related cases in view of the possible consequences which the excessive length of proceedings may have, notably, on enjoyment of the right to respect for family life (see, among other authorities, Laino v. Italy [GC], no. 33158/96, § 18, ECHR 1999‑I, and V.A.M. v. Serbia, no. 39177/05, § 101, 13 March 2007). 89. The Court observes that neither the complexity of the case nor the applicant’s conduct explains the length of the proceedings (contrast Maltzan and Others v. Germany (dec.) [GC], nos. 71916/01 et seq., §§ 131-33, ECHR 2005‑V); rather, the applicant’s case was not terminated earlier owing to the excessive caseload of the Constitutional Court. In this connection, the Court has repeatedly held that Article 6 § 1 imposes on Contracting States a duty to organise their judicial systems in such a way that their courts can meet each of its requirements, including the obligation to hear cases within a reasonable time. Although this obligation cannot be construed in the same way for a constitutional court with its role as guardian of the Constitution as for an ordinary court, this role also makes it particularly necessary for a Constitutional Court sometimes to take into account considerations other than the mere chronological order in which cases are entered on the list, such as the nature of a case and its importance in political and social terms (see Süßmann, cited above, §§ 55-57; Gast and Popp v. Germany, no. 29357/95, § 75, ECHR 2000‑II and Šikić v. Croatia, no. 9143/08, § 37, 15 July 2010). The Court emphasises that, according to its established case-law, a chronic overload, like the one in the present case, cannot justify excessively long proceedings before the Constitutional Court (see, mutatis mutandis, Pammel v. Germany and Probstmeier v. Germany, 1 July 1997, § 69 and § 64 respectively, Reports 1997‑IV; contrast, as regards the temporary backlog of court business and prompt remedial action, Unión Alimentaria Sanders S.A. v. Spain, 7 July 1989, § 40, Series A no. 157). Moreover, while what was at stake for the applicant in the proceedings before the Constitutional Court was of considerable importance, the Constitutional Court, according to the Government, was not in position to adopt and implement any priority policy in dealing with constitutional appeals and did not consider doing so, including in child custody-related cases (see paragraph 88 above). Hence, the Government have not submitted any factors which could justify the protracted length of the proceedings. 90. The Court considers that a lapse of time like that in the present case, even before the courts exercising constitutional jurisdiction, was excessive and failed to meet the “reasonable time” requirement of Article 6 § 1 of the Convention (see, mutatis mutandis, Oršuš and Others v. Croatia [GC], no. 15766/03, §§ 108-9, ECHR 2010, where proceedings before the Constitutional Court regarding the education of Roma children lasted four years and one month; see also Nikolac v. Croatia, no. 17117/06, § 17, 10 July 2008, Butković v. Croatia, no. 32264/03, § 27, 24 May 2007, and Šikić, cited above, § 37, where the Court found violations of the reasonable time requirement contained in Article 6 § 1 of the Convention in urgent cases involving labour-related and housing issues; the constitutional proceedings therein had lasted for approximately three years and four months, three years and six months, and three years and nine months, respectively, and considered together with the prior civil proceedings had lasted globally for approximately seven years, six and a half years, and five years within the Court’s competence ratione temporis respectively; contrast Maltzan and Others, cited above, § 135, Tešić v. Serbia, nos. 4678/07 and 50591/12, § 77, 11 February 2014, and Janković, cited and referred to above by the Government (see paragraph 85 above), the latter case concerning a dispute of pecuniary nature which did not require exceptional diligence, in which only one year and four months of the constitutional appeal proceedings fell within the Court’s temporal jurisdiction).

Article of the Convention at issue: Article 8
Outcome: violation