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April 12, 2011 - European Convention of Human Rights

Divorced father wins child custody row with Croatia

A divorced father has triumphed at the European Court of Human Rights in his child custody row with Croatia.

Judges ruled that Croatian authorities must pay €15,000 to Stjepan Gluhaković and ensure contact between him and his daughter at a time compatible with the father’s work schedule and on suitable premises.

In today’s judgment in the case Gluhaković v. Croatia (application no. 21188/09), which is not final, the European Court of Human Rights held, unanimously, that there had been:

A violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights

The case concerned Gluhaković’s complaint that the Croatian authorities have not ensured adequate contact with his daughter. This is the first time that the Court has issued such directions, under Article 46 (binding force and execution of judgments), in relation to the right to respect for family life.

Principal facts

The applicant, Stjepan Gluhaković, is a Croatian national who was born in 1960 and lives in Rijeka (Croatia).

In July 1999 Gluhaković’s wife left him; she was pregnant at the time. She gave birth in December 1999 to their daughter.

In a number of proceedings, before the local Municipal Court and Social Welfare Centre as well as before the Constitutional Court, Gluhaković was granted the right to contact with his daughter, who continued to live with her mother.

During these proceedings, Gluhaković repeatedly requested that the meetings with his daughter take place every fourth or eighth day, as he worked in Vicenza, Italy, and his work schedule was such that he had every fourth day off. It was therefore very difficult for him to travel to Rijeka on a fixed day of the week; he had to drive at night and was obliged to ask colleagues to replace him, causing him significant difficulties.

The national courts made no comment concerning his work schedule and repeatedly ordered that he see his daughter on a fixed day. Initially, until October 2008, meetings were ordered to take place every Tuesday for two hours, then from November 2008, once per week, and, from November 2009, every Thursday.

It was first ordered that the meetings were to take place at the Rijeka Counselling Centre and later, from November 2008, at the Social Welfare Centre. They had to be supervised by a third person, as recommended by a psychiatrist’s report which diagnosed Gluhaković with paranoid psychosis.

In March and November 2005 the Counselling Centre reported to the national courts that their premises were not suitable for the meetings between Gluhaković and his daughter as they had to see one another in the Centre’s kitchen or in offices of its employees. On that account, in July 2007 the Counselling Centre informed the applicant that he could no longer meet with his daughter on their premises.

In January 2009 the Social Welfare Centre also submitted to the courts that they had no suitable premises as, owing to shortage of space, the only place where the applicant and his daughter could meet would be in a corridor.

Most recently, in March 2010 the courts ordered that contact could take place once per week for three hours at a time when the applicant’s work schedule allowed and at a place to be arranged between the parties themselves.

However, that judgment has not been enforced as his ex-wife refuses to let him meet his daughter in his flat and no other suitable solution has been found.

Complaints procedure

Relying on Article 8 (right to respect for private and family life and the home) of the Convention, Gluhaković complained that the Croatian authorities have not ensured regular contact with his daughter on adequate premises since 2000 and that he has not seen his daughter at all since July 2007.

The application was lodged with the European Court of Human Rights on 7 April 2009.

Decision of the Court

Article 8 (right to respect for private and family life)

Unlike the national courts, the Court accepted that travelling from Vicenza to Rijeka on a fixed day created difficulties for Gluhaković’s right of contact with his daughter. The courts gave no explanation why it had not been possible to accommodate his alternative proposals for contact. Indeed, his arguments had been constantly ignored at every judicial level.

Nor did the courts take into account any objections as to the place of the meetings. They ignored both the Counselling Centre’s reports as well as that of the Social Welfare Centre’s. The courts even ordered the meetings to take place at the Social Welfare Centre without assessing its suitability. This resulted in Gluhaković first having to go to significant lengths to organise his replacement at work and meet his daughter in such places as a kitchen and offices of the Counselling Centre and then not see her at all as the only place in the Welfare Centre would have been in a corridor.

Bearing in mind that Gluhaković has had no contact with his daughter since July 2007, the Court held that the Croatian authorities had failed to ensure his right to effective contact with his daughter, in violation of Article 8.

Article 41 (just satisfaction)

The Court held that Croatia was to pay Gluhaković 15,000 euros (EUR) in respect of non pecuniary damage.

Article 46 (binding force and execution of judgments)

Exceptionally, and given the urgent need to put an end to the violation of Gluhaković’s right to respect for his family life, the Court also decided to issue the direction that Croatia had to ensure effective contact between the applicant and his daughter at a time compatible with his work schedule and on suitable premises.

πηγή: humanrightseurope.org