Karadžic v. Croatia, Application No. 35030/04, (2005) 44 EHRR 896

INCADAT legal file Hague parental abduction

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Issues Relating to Return
Enforcement The mother complained that the inefficiency of the Croatian authorities and, in particular, the prolonged failure to enforce the Porec Municipal Court’s decision of 12 May 2003 to reunite her with her son violated her right to respect for family life as provided in Article 8 of the Convention. The Court restated its established position that a State’s positive obligations under Article 8 include a right for parents to measures that will enable them to be united with their children. It acknowledged though that the national authorities’ obligation to take such measures was not absolute, since the reunion of a parent with a child who has lived for some time with the other parent may not be able to take place immediately and may require the taking of preparatory measures. Considering the facts of the case the Court noted that it took the Croatian authorities five months to institute court proceedings for the return of the return of the child on 21 October 2001. Subsequently, the Pula County Court did not give its decision on the appeal against the first-instance enforcement order until five months later, without any procedural activity in the meantime. Furthermore in the resumed proceedings, the Porec Municipal Court held only one hearing in seven months on 6 May 2003 and gave its decision on 12 May 2003. The Court ruled that the Croatian Government had not produced a convincing explanation for any of these periods of inactivity. As regards the enforcement proceedings the Court noted that during a period of one and a half years, the police attempted to enforce the return order three times, whereas Article 11 of the Hague Convention expressly imposed an obligation on the competent authorities to act expeditiously. Whilst regard had to be had to the father’s conduct, in the Court’s view the police did not show the necessary diligence in locating him and displayed laxity in allowing him to twice escape from custody. The Court recalled that while coercive measures were not desirable in this sensitive area, the use of sanctions could not be ruled out in the event of unlawful behaviour by the parent with whom the children were living. However, the only sanction the authorities used in the present case against the father was the imposition of a fine and a subsequent detention order only on 24 May 2004, neither of which appeared to have been enforced. In the light of the above failings the Court ruled that the Croatian authorities had failed to make adequate and effective efforts to reunite the applicant with her son as required under their positive obligation arising from Article 8 of the Convention.
Procedural Matters
The Court noted that under Article 35 § 1 of the Convention it could only deal with a matter after all domestic remedies had been exhausted. This ‘exhaustion rule’ was to afford Contracting States the opportunity of preventing or putting right the alleged violations before an application was submitted. However, it added that the only remedies to be exhausted were those which were effective and available at the relevant time, that is to say they must have been accessible and capable of providing redress in respect of the complaint and must have offered reasonable prospects of success. The Court found that the mother had exhausted her domestic remedies given the state of the law of Croatia at the time her enforcement proceedings were closed. However, it also noted that the law had since evolved so that a constitutional complaint could now be filed in respect of enforcement proceedings and that this would represent an additional domestic remedy which would now have to be pursued before an equivalent challenge to the ECHR could be deemed admissible.