FIRST SECTION
CASE OF JURIŠIĆ v. CROATIA (No. 2)
(Application no. 8000/21)
 
 
JUDGMENT
Art 8 • Positive obligations • Family life • Continued non-enforcement of judicial decisions granting applicant contact rights with son, not due to authorities’ lack of diligence • Number of steps taken by authorities to enable contact, in line with best interests of the child, and mainly failing due to parents’ conduct • Art 46 • Court examination in present case confined to new period and new domestic court decisions, following previous finding of an Art 8 violation
 
STRASBOURG
7 July 2022
 
FINAL
 
07/10/2022
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Jurišić v. Croatia (No. 2),
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
 Marko Bošnjak, President,
 Péter Paczolay,
 Alena Poláčková,
 Erik Wennerström,
 Raffaele Sabato,
 Lorraine Schembri Orland,
 Davor Derenčinović, judges,
and Liv Tigerstedt, Deputy Section Registrar,
Having regard to:
the application (no. 8000/21) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mr Stjepan Jurišić (“the applicant”), on 25 January 2021;
the decision to give notice of the application to the Croatian Government (“the Government”);
the parties’ observations;
Having deliberated in private on 7 June 2022,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. In its judgment in Jurišić v. Croatia ([Committee], no. 29419/17, 16 January 2020), the Court found a violation of Article 8 of the Convention on account of non-enforcement of judicial decisions granting the applicant contact rights with his son. The execution of that judgment is still pending before the Committee of Ministers. The present case concerns the applicant’s prolonged inability to have contact with his son. THE FACTS
2. The applicant was born in 1970 and lives in Sesvetski Kraljevec. He was represented by Mr H. Čačić, a lawyer practising in Bjelovar. 3. The Government were represented by their Agent, Ms Š. Stažnik. 4. The background to the case may be summarised as follows. 5. In its judgment in Jurišić v. Croatia ([Committee], no. 29419/17, 16 January 2020), the Court found a violation of Article 8 of the Convention on account of non-enforcement of judicial decisions granting the applicant contact rights with his son, I.R., born in 2006. The execution of that judgment is still pending before the Committee of Ministers. 6. In 2021 the applicant lodged a fresh application with the Court, claiming that a subsequent decision adopted in his case, and his continued inability to have contact with his son, had resulted in a fresh breach of his Convention rights. 7. The relevant facts, pertaining to the subsequent period (see Jurišić, cited above, § 53), may be summarised as follows. First set of enforcement proceedings
8. In the context of enforcement proceedings concerning contact between the applicant and I.R., as set out in the final court decision of 14 May 2010, according to which the applicant was to see I.R. every other weekend and part of the school holidays (see Jurišić, cited above, § 15), on 20 May 2019 the court heard a psychiatrist, J.G., who had been treating the child for four years. J.G. stated that subjecting the child to another expert evaluation, as had been ordered by the appellate court (see Jurišić, cited above, § 49), or hearing him in court would have further negative consequences for him. He suggested that the applicant and I.R. meet several times in his office so as to commence building a trusting relationship. The applicant refused this proposal, stating that he did not trust J.G. because he was biased and was “manipulating the child”. Such a proposal had been acceptable to the court but since the applicant refused it, the court had no power to order such meetings because it could not amend the final enforcement order. 9. On 29 January 2020 the Slavonski Brod Municipal Court (Općinski sud u Slavonskom Brodu) terminated the enforcement of the final court decision for the second time (for the first termination decision see Jurišić, cited above, § 48). Instead of obtaining a new expert evaluation, the court relied on an expert report of a psychologist, J.B., dated 6 September 2018, produced in relation to both parents and the child for the purposes of parallel criminal proceedings against the mother. That report found, as did all other experts in the case, that gradual contact between the applicant and the child would be more appropriate, and that the use of coercion in order to enforce the applicant’s contact rights as determined in an outdated enforcement order from 2010 would be counterproductive and would further traumatise the child. The court found that, because of the impossibility of enforcing the contact rights in the manner which had been determined in the decision of 14 May 2010, and the parties’ refusal to reach another agreement, and since the court in the enforcement proceedings had not had the authority to amend the final enforcement order, it had to discontinue the enforcement as the decision was impossible to enforce. In doing so, the court stressed that in the proceedings to amend the contact rights that were already ongoing (see paragraphs 11 and onwards below), the court would be in the position to precisely define the place, time and manner of contact, as well as the obligations of the parents with a view to developing an emotional closeness between the applicant and the child. 10. The applicant’s appeal against that decision was dismissed by the Zagreb County Court (Županijski sud u Zagrebu) on 17 June 2020, and a constitutional complaint made by him was declared inadmissible by the Constitutional Court (Ustavni sud Republike Hrvatske) on 21 October 2020. Fresh contact proceedings
11. Meanwhile, in a fresh set of contact proceedings instituted in 2019 by the child’s mother, M.R., the Slavonski Brod Municipal Court appointed a guardian ad litem for the child. Having spoken to I.R., the guardian informed the court that the child “was willing to give his father one final chance to meet at Dr J.G.’s office, where he would have the chance to show that he was nice”. The applicant did not accept that proposal. 12. The relevant Social Welfare Centre proposed that the applicant and his son meet every Friday in a neutral location and without the presence of the mother. 13. On 2 November 2020 the court issued a fresh contact order, determining supervised weekly contact between the applicant and his son in a neutral location, in line with the Centre’s proposal. According to the court’s decision, once that contact had become continuous and after a relationship of trust had been established, it was to take place every other weekend and during part of the school holidays. The relevant part of the court’s decision reads as follows:
“It is evident from the parties’ testimony, [and] the relevant documents in the case file ... that a number of proceedings have been conducted between the parties, arising from the fact that the mother ... did not enable [the applicant] any contact with his son, that despite being entrusted with the custody of I.R. ... she did not do anything to enable I.R. to become closer to [the applicant], nor has she ... accepted professional help which was offered to her throughout the proceedings. On the contrary, she did not answer the Centre’s calls, [and] she caused delays in the proceedings with the aim of preventing their enforcement ... On the other hand, [the applicant] for his part does not accept the fact that the child has such problems that he required medical help, moreover he calls into question the competence of the expert and of the child’s medical diagnosis by the doctors who are treating his son. He not only questions the competence of the doctors and experts who have been appointed in the enforcement, criminal and non-contentious proceedings, but he also points out the lack of professionalism of all the court and Social Welfare Centre staff and insists on establishing contact [with the child] in the manner and place which is suitable for him. In [previous] proceedings ... [a doctor and a psychologist] have already recommended gradual familiarisation between the father and the son, without an abrupt separation of the child from the mother. Given the child’s physical and psychological state, his psychotherapist, Dr J.G., called for establishing a gradual closeness between the father and the child, and offered his assistance in realising such contact, inviting the parents to his office (to which [the applicant] never consented). Further medical documentation also recommends the building of a gradual relationship between the father and the child. It is apparent from the parties’ testimony and their analysis that no contact between the father and the child has ever taken place; that court decisions regulating the manner of such contact have been obstructed to the extent that the child was accompanied to the contact appointments by police officers and Centre’s staff; that I.R.’s parents communicated exclusively through the court; that they never established a successful dialogue as regards their child’s needs; and that during the father’s visits to pick up the child and during communication between the parents, threats were uttered regardless of the fact that the child was present, and despite the fact that both parents were well aware that such conduct produced direct consequences on the physical and psychological well-being of their child. The parties’ testimony indicates that both of them are exclusively directed at realising their own rights as parents of I.R. Their conduct ... is exclusively determined with the aim of proving the existence of their rights as parents. Both parents’ testimony was aimed at depicting the other parent as a person who was intolerant towards the child. Their statements are thus limited to justifying their own actions, stating that they meant well, whereby they both forget that their actions directly violate the right of their child to have both parents, and his right to have contact with and care from the parent with whom he does not live. In other words, contact with the parent with whom a child does not live is the right of the child and not the parent; such contact is determined in the interest and for the benefit of the child and his entire physical and psychological development. However, the actions of both parents, which are contrary to the interests of their own child, are preventing his proper development, because neither of them is allowing the child to think outside of the context of the parent with whom he is currently staying. This is particularly so because, in the midst of their dissatisfaction and their unresolved relationship, the parents are preventing the child from fulfilling his potential and from developing properly. The parents’ relationship has resulted in their violating their child’s rights by contact being obstructed, not by the institutions who make the decisions, but by the parents themselves. Therefore, the institutions have not prevented contact, on the contrary, they have undertaken all necessary steps in order to protect the rights and interests of I.R., and those rights of the child are being protected in relation to his parents who are violating his rights, thereby ignoring the warnings of the institutions and experts (denigrated by both parties) and jeopardising the health of their own child by the behaviour of not only one, but both of them. The foregoing is particularly visible from a number of decisions aimed at temporarily establishing dialogue and a consensus. However, none of those decisions was suitable and no agreement has ever been realised. This kind of relationship between the parties only indicates their lack of interest and their laxity towards the rights of their child, because it is obvious that they both consider that those decisions were adopted because of the two of them and their rights, in other words each considers that the decisions were aimed at himself or herself. A very passive attitude is evident in both parents towards the rights of the child and his well-being, as is conscious and intentional manipulation by both parents with the aim of prolonging this and other sets of proceedings, which directly, consciously and deliberately influences the rights of the child. It is important to stress that the Family Act bases the relationship between parents and children on the legal standard of ‘the best interests of the child’ and the responsibility of the parents in line with the Convention on the Rights of the Child. Obstruction of contact is surely a violation of I.R.’s rights. The mother’s actions, by which she tries to completely isolate the child from his father, directly affect the rights of their child and cannot be justified by any concern or care for the child, because they are not that. Wrongful actions cannot be justified by good intentions because the court has not established in these proceedings that such intentions existed at all. This case is also one of the mother’s attempts to legally prevent any contact between the father and the child, through the length of the proceedings and the lack of a final decision, all of which is finally a violation of the rights of the child, the custody of whom she has been entrusted with. The mother has refused professional help from the Centre’s staff ... she has prevented that Centre’s staff from carrying out expert supervision of the family, and she has failed to respond to their invitations to take the child to psychological interviews, all of which confirms that she has undertaken all possible action in order to obstruct any sort of contact between the father and the child. The child’s father, on the other hand, during attempts at contact, and at times when he has seen that the child has refused to come with him, insists on and invites the police and psychologists ... Whenever he and the mother disagreed about any issue, including whether a certain toy was good for the child, he would call the police, which action, along with verbal conflicts with the mother, have caused and continue to cause the child to fear any such meeting of his parents, who are unable to agree in a mature way or to agree through normal dialogue any question relating to the child’s needs. Furthermore, the [applicant’s] approach towards the child’s medical condition, which he denies, as well as his attitude to, and ignoring of, the expert opinions that have been obtained, is, on the one hand, a refusal by the father to accept that his son has medical issues and, at the same time, also affects his lack of preparation when addressing the child in situations when he is able to do so, as a result of which something intended as a joke is understood by the child as an insult and mockery. As a consequence, the child has become even more distant from his father and has confirmed his attitude towards him and his opinion of him. Although the child’s medical problems escalated during the enforcement proceedings, further traumatisation of the child has resulted in I.R. having fears caused by his father and by separation from his mother; irrespective of whether those fears are justified, they exist and they affect the health of the child, which is why he must be treated. Although during the enforcement proceedings ... Dr J.G. had already proposed helping the child and his parents, and had proposed that they could all come to his office ..., [the applicant] refused and continues to refuse to cooperate with that doctor during these proceedings, considering him biased because he had given statements in previous proceedings, ignoring the fact that he has been treating I.R. for a number of years and that the doctor in his testimony only and always spoke in the best interests of the child. ... This court could not accept M.R.’s proposal ... However, during the proceedings, I.R. has been alienated from his father ... The child’s mother has to accept the fact that she needs to allow the child contact with his father for his own development ... Proper physical, emotional, intellectual, social and moral development of the child requires stability and constant support of the family and the environment. This is why it is important to ensure that children of separated parents have contact and a continued relationship with both parents ... All of the foregoing is pointed out so as to stress that any manipulation of the child or the institutions directly harms the child and his welfare; in cases where the parents do not wish to understand their role in the development and the life of their child, the child protection services have to do so ... Parents should not be allowed to obtain protection of their interests ... at the expense of the best interests of the child. In such situations, when the parents are not acting maturely and do not pay heed to the child’s emotional needs, as in the present case, the child grows up insecure, he is afraid to love one parent or show love towards one parent in the presence of the other, whereas in reality the child longs for a good relationship with the other parent as well ... I.R.’s statements to the psychologist and his guardian indicate precisely that he is fighting with the desire to be with his father and have contact with him, while at the same time trying not to lose his mother’s affection ... A child willing to ‘give another chance’ to his father is not a child who does not wish to have any contact, or a child who is afraid of his father or who is unsure of what he wants. I.R. is not unsure, he is an excellent student with friends at school and extracurricular activities. It is his parents who are unsure and who are using the child as a tool for resolving their difficult relationship ...”
14. On appeal by both parties, on 10 May 2021 the Zagreb County Court upheld the first-instance decision, which thereby became final. Second set of enforcement proceedings
15. Following the above-mentioned new contact order, on 2 and 9 January 2021 the applicant went to the child’s home with a representative of the Centre. The first time that they announced their presence, nobody opened the door, and the second time, I.R. answered the door and refused any contact with the applicant. 16. On 25 June 2021 the mother, M.R., brought the child to meet the applicant in accordance with the new contact order. The applicant and M.R. began arguing and the child left the premises, stating that he was fourteen years old, that his opinion mattered and that he did not wish to be there. 17. At the next scheduled contact appointment on 2 July 2021, the parents again argued and accused each other of abusing the child. I.R. protested, stating that nobody should be able to force him to do something that he did not want to do. The applicant replied to him that his mother would end up in prison for not allowing him to see his son. The child then left the room. According to the official report of the meeting, throughout that time the applicant was standing with crossed arms, not looking at the child or trying to make contact with him, and was focused on the Centre’s employees, requesting them to help him to exercise his rights. 18. At the next scheduled contact appointment on 7 July 2021, the child immediately said that he did not wish to have contact with his father who, according to him, had abused him when he was younger. 19. On 20 and 27 August 2021 the child refused to speak to the father or to explain why he did not wish to have any contact with him. 20. On 8 September 2021 the applicant did not attend the scheduled contact session. The contact supervisor suggested to the child that he write a letter to his father expressing his emotions. Criminal proceedings
21. On 15 July 2020 the Slavonski Brod Municipal Court found M.R. guilty of obstructing the applicant’s contact with his son between December 2015 and August 2016 and sentenced her to a suspended prison sentence of ten months. That judgment was upheld on appeal. 22. On 23 September 2021 the Slavonski Brod Municipal Court found M.R. guilty of obstructing the applicant’s contact with his son between April and June 2015 and sentenced her to a suspended prison sentence of nine months. 23. Between April 2019 and February 2021, the Centre lodged three further criminal complaints against M.R. for the non-enforcement of decisions relating to the protection of children for three further periods, from October 2018 and February 2021. Those criminal proceedings are still ongoing. RELEVANT LEGAL FRAMEWORK
24. The relevant provisions of domestic law in force at the material time are set out in K.B. and Others v. Croatia (no. 36216/13, §§ 96 and 101-06, 14 March 2017). THE LAW
ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
25. The applicant complained that, despite all the fresh decisions in his case, he had still not had regular contact with his son, in breach of 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.”
AdmissibilityThe parties’ submissions

26. The Government submitted that the present application entirely related to the execution of the Court’s earlier judgment of 16 January 2020, which was within the exclusive competence of the Committee of Ministers. No new proceedings having been instituted in the case since the Court’s initial judgment, the termination of the first enforcement order and the adoption of a new one had merely formed part of the measures undertaken by the domestic authorities in the process of execution of the Court’s initial judgment. Those measures were regularly monitored by the Committee of Ministers and their examination by the Court thus fell outside of its competence ratione materiae. 27. The Government further submitted that in cases such as that of the applicant, where there were justified specific reasons which prevented applicants from having contact with their children, the Committee of Ministers was not precluded from closing the execution process, thereby implying that the State had fulfilled its obligations under Article 46 of the Convention, and that further measures were either impossible or unnecessary. 28. The applicant maintained that his application had not exclusively been brought in relation to the respondent State’s failure to execute the Court’s judgment of 16 January 2020. In the meantime, new decisions had been adopted which further violated his rights under the Convention. Specifically, the enforcement of an earlier final and enforceable court order regulating his contact with his son was unlawfully terminated and a fresh contact order had been adopted.

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