CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 13 mars 2007

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SERBIA     (Application no. 39177/05)     JUDGMENT       STRASBOURG   13 March 2007         FINAL     13/06/2007     This judgment will become final in the circumstances set out in Article   44 §   2 of the Convention. It may be subject to editorial revision. In the case of V.A.M. v. Serbia, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Mrs   F. Tulkens , President ,   Mr   A.B. Baka ,   Mr   R. Türmen ,   Mr   M. Ugrekhelidze ,   Mr   V. Zagrebelsky ,   Ms   D. Jočienė ,   Mr   D. Popović, judges , and Mrs F. Elens-Passos , Deputy Section Registrar , Having deliberated in private on 20 February 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 39177/05) against the State Union of Serbia and Montenegro, succeeded by Serbia on 3 June 2006 (see paragraph 76 below), lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by, at that time, a citizen of the State Union of Serbia and Montenegro, Ms V.A.M. (“the applicant”), on 28 October 2005. 2.     The President of the Chamber acceded to the applicant's request not to have her name disclosed and gave priority to her application in accordance with Rules 47 § 3 and 41 of the Rules of Court, respectively. 3.     The applicant was represented before the Court by the Lawyers' Committee for Human Rights (YUCOM), a human rights organisation based in Belgrade. The Government of the State Union of Serbia and Montenegro, initially, and the Government of Serbia, subsequently, (“the Government”) were represented by their Agent, Mr S. Carić. 4.     On 27 February 2006 the Court decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it was also decided that the merits of the application would be examined together with its admissibility. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE A.     Civil proceedings (divorce, custody and child maintenance) 5.     In 1994 the applicant married D.M. and in 1995 their daughter S.M. was born. 6.     In 1998 the applicant started having marital problems, apparently as a result of her contracting HIV. 7.     On 3 July 1998 S.M. left Zemun, a part of Belgrade where she lived with her parents, to stay with her grandparents for a while. 8.     In early August of 1998, D.M. brought S.M. back to Zemun. 9.     Shortly afterwards, however, the applicant's marriage broke down and D.M. ceased living with the applicant. He also took S.M. to his parents' flat, denying the applicant any contact with her. 10.     On 11 February 1999 the applicant filed a claim with the Fourth Municipal Court in Belgrade (“ Četvrti opštinski sud u Beogradu ”), seeking dissolution of the marriage, sole custody of S.M. and child maintenance. In addition, she requested interim relief, granting her temporary custody or, in the alternative, regular weekly contacts with S.M. until the conclusion of the civil proceedings. 11.     On 23 July 1999 the Fourth Municipal Court in Belgrade (hereinafter “the Municipal Court”) ordered the Social Care Centre (“ Centar za socijalni rad opštine Stari Grad ”) to produce an expert opinion as to which party should be granted custody. 12.     D.M. (hereinafter “the respondent”) appears to have been informed about the applicant's lawsuit during one of the meetings held at the Social Care Centre in 1999. 13.     Following the institution of proceedings, the Municipal Court adjourned 15 separate hearings, including the hearings scheduled for 29   October 2003, 7 October 2004 and 19 October 2005, respectively. 14.     Throughout this time, though mostly in response to the applicant's numerous proposals, the Municipal Court attempted to obtain information as regards the respondent's correct address from various State bodies, including the tax authorities, municipalities, the Ministry of Education and even the Commercial Court. 15.     Summonses were sent to a number of addresses but each time the respondent could not be served, which led the Municipal Court to conclude, on 17 April 2003, that he was “clearly avoiding receipt” of all court documents. 16.     On 3 November 2005 the respondent was duly served for the first time, the summons having been sent to Kotor, Montenegro, on which occasion he was both provided with the applicant's claim against him and informed about the next hearing scheduled for 23 December 2005. 17.     On 21 December 2005 the applicant's lawyer informed the Municipal Court that she could not attend that hearing. 18.     The applicant maintained that during the proceedings in question the presiding judge had stated publicly that she would either rule in favour of the respondent or dismiss the applicant's claim on procedural grounds. The Government contested this submission. 19.     In early 2006, the presiding judge was replaced by another and the case itself taken under review by the Municipal Court's Special Committee for Family Relations. B.     Request for the removal of the judge 20.     On 31 March 2003, inter alia , the applicant complained to the President of the Municipal Court, requesting that the presiding judge in her case be removed. 21.     She claimed that the judge in question had tried to serve the respondent via regular mail only but had failed to attempt to do so through the bailiffs, as envisaged by the Civil Procedure Act (see paragraph 60 below). 22.     Further, despite the fact that it was up to the courts to establish the respondent's correct address, she pointed out that on 31 March 2003 the judge had ordered her specifically to provide the court with the address in question, in default of which her claim would be dismissed. 23.     Finally, the applicant alleged that the judge herself had indicated that she did not know what to do with the case and that the best solution would have been for the applicant to withdraw her claim. The Government contested this submission. 24.     On 11 April 2003 the applicant's motion was rejected by the President of the Municipal Court. C.     Interim access order 25.     On 23 July 1999 the Municipal Court ordered the respondent to facilitate the applicant's access to S.M., twice a month, until the adoption of a final decision on the merits of the case. 26.     On 19 October 1999 the applicant filed a submission with the Municipal Court, stating that the respondent had refused receipt of the said decision and requesting that he be served formally in accordance with the relevant provisions of the Civil Procedure Act (see paragraph 60 below). 27.     On 8 November 1999 and 19 February 2001, respectively, the applicant sent two separate requests to the Municipal Court, seeking effective enforcement of the interim access order. 28.     On 23 October 2001 the applicant's lawyer withdrew her request of 8 November 1999. 29.     On 4 June 2002 the bailiffs attempted to enforce the said interim access order but, apparently, there was no one to be found at the respondent's address. This enforcement would appear to have been envisaged by means of a seizure of the respondent's movable assets and their subsequent sale, the proceeds of which would then have been used to cover the fine apparently imposed on the respondent for his failure to comply with the order in question (see paragraph 65 below). 30.     On 5 September 2002 the applicant filed another complaint with the Municipal Court, seeking effective enforcement. 31.     From 25 October 2002 until August 2005 the bailiffs tried again, on a number of occasions and at several different addresses, but to no avail. 32.     On 26 August 2005 the applicant was ordered by the Municipal Court to provide the respondent's correct address. D.     Relevant medical facts 33.     On 10 February 1999 a medical clinic (“ Klinički centar Srbije ”) attested that the applicant was HIV positive but that she was being treated and was feeling well. The clinic added that there was no reason why she should not be allowed to see S.M. 34.     On 16 March 1999, 18 March 1999 and 21 May 2001, respectively, medical opinions to the same effect were again issued by the said clinic, as well as two other medical institutions (“ Specijalistička poliklinika za građanska lica ” and “ Institut za infektivne i tropske bolesti ”). 35.     The opinion of 21 May 2001 was addressed expressly to “the competent Social Care Centre”. E.     Other relevant facts 36.     The applicant stated that she had frequently seen the respondent in the streets of Belgrade throughout the period in question and pointed out that he had also appeared in a television programme on several separate occasions. 37.     The applicant further noted that she was informed by the Social Care Centre that the respondent had publicly stated that he did not want to be bothered by any legal proceedings and, in addition, that he had told S.M. that her mother, the applicant, had died. F.     Procedural developments following the communication of the application to the respondent Government 1.     Civil proceedings (divorce, custody and child maintenance) 38.     It would appear that the Municipal Court held a hearing on 30 March 2006 and that it did so in the respondent's absence given that he had been duly served at one of his addresses in Belgrade. 39.     On 8 May 2006 the Kotor Police Department informed the Municipal Court that the respondent could not be found at his address in Kotor but that his neighbours had said that he had moved back to Belgrade. 40.     At the hearing held on 22 May 2006, the applicant informed the Municipal Court that the respondent had re-registered his former company and that its seat was now in Belgrade. She then went on to provide the court with this address, as well as the current address of the respondent's parents, and stated that S.M. was in fourth grade in one of the primary schools in Belgrade. 41.     On 23 May 2006 the Municipal Court sent a letter to the Commercial Entities Registration Agency (“ Agenciji za privredne registre ”) and the tax authorities, seeking information about the respondent's income and his tax situation, as well as whether the respondent was the owner, founder, manager or deputy manager of the said company. 42.     On 12 June 2006 the Municipal Court was informed that the respondent was indeed the manager of the company in question. 43.     The next hearing was scheduled for 28 June 2006 and the court summonses in this respect were sent both to the respondent's address in Kotor and to his address in Belgrade, via the Kotor and Belgrade police departments, respectively. 44.     On 30 March 2006, 23 May 2006 and 7 June 2006, the Municipal Court urged the competent Social Care Centre to “finalise” its report and submit a proposal as to who should get custody of S.M. 45.     The Municipal Court thereafter obtained the medical reports concerning the applicant's health of 16 March 1999 and 21 May 2001, respectively (see paragraph 34 above), as well as a new report produced by the Infectious and Tropical Diseases Institute (“ Institut za infektivne i tropske bolesti ”) - Centre for HIV/AIDS of 12 April 2006, stating that there was no medical reason why the applicant should not be granted custody of S.M. 46.     On 28 June 2006 the Municipal Court heard the applicant and ordered the Social Care Centre to produce its report as to who should be given custody of S.M. 47.     On 22 September 2006 the Municipal Court heard both the applicant and the respondent, on which occasion the latter, inter alia , stated that the former had not been honest about her medical situation, or conscientious in terms of taking medication, which seriously endangered his own life as well as that of S.M. The respondent thus proposed that the applicant's health be reassessed and the Municipal Court, having so ordered, scheduled the next hearing for 22 December 2006. 48.     On 22 December 2006 the Municipal Court adjourned the hearing, stating that the case file was still with the District Court which was about to rule in respect of the respondent's appeal filed against the interim custody order issued on 15 June 2006 (see paragraphs 50 and 52 below). 49.     The Municipal Court scheduled the next hearing for 12 March 2007. 2.     Interim custody order 50.     On 15 June 2006 the Municipal Court granted provisional custody of S.M. to the applicant and ordered the respondent to surrender the child, pending a final decision in the ongoing civil suit. In its reasoning, inter alia , it found that: i) the respondent had made it clear, from the outset, that he would “not allow” the applicant to have contact with S.M. because of his fear that she might also be “infected” with HIV; ii) the applicant was, despite the respondent's claims to the contrary, a responsible and motivated parent whose medical condition was stable, constantly under review, and who presented no danger to S.M.; and iii) the respondent had not only failed to comply with his obligation to inform the court of his correct address but had in addition, for many years, deliberately avoided receipt of court summonses which, in turn, had resulted in the applicant being denied all contact with S.M. and indicated a gross disregard for the interests of S.M. on his part. Finally, the execution of this order was not to be deferred pending any appeal filed against it. 51.     On 20 July 2006 the applicant requested enforcement of the above order and again provided the Municipal Court with the respondent's various addresses. 52.     On 5 October 2006 the respondent filed an appeal. 53.     On 22 November 2006 the applicant complained to the President of the Municipal Court, seeking speedy enforcement. 54.     On 13 November 2006 the District Court accepted the respondent's appeal, quashed the impugned order and instructed the Municipal Court to re-examine the issue of the applicant's interim custody. 3.     Additional proceedings brought by the applicant 55.     In July 2006 the applicant filed a separate civil claim against the respondent, seeking the removal of his parental rights. These proceeding were also brought before the Municipal Court and were at the time of adoption of this judgment apparently still ongoing.   II.     RELEVANT DOMESTIC LAW A.     Relevant provisions concerning child custody and maintenance disputes 1.     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 the official Gazette of the Republic of Serbia - OG RS - nos. 22/93, 25/93, 35/94, 46/95 and 29/01) 56.     Articles 310b, 390 and 391 provided that all maintenance-related suits and child custody enforcement proceedings were to be dealt with by the courts urgently. 2.     Family Act (Porodični zakon; published in OG RS no. 18/05) 57.     Under Article 204 all family-related disputes involving children must be resolved urgently. The first hearing must be scheduled within 15 days of the date when the claim is filed. First instance courts should conclude the proceedings following no more than two hearings, and second instance courts must decide on appeal within a period of 30 days. 58.     Similarly, Article 280 defines all maintenance suits as “particularly urgent”. The first hearing must be scheduled within 8 days of the date when the claim is filed and second instance courts must decide on appeal within 15 days. 59.     This Act entered into force on 1 July 2005 and thereby repealed the Marriage and Family Relations Act referred to above. B.     Civil procedure rules 1.     Civil Procedure Act 1977 (Zakon o parničnom postupku; published in the Official Gazette of the Socialist Federal Republic of Yugoslavia - OG SFRY - nos. 4/77, 36/77, 6/80, 36/80, 43/82, 72/82, 69/82, 58/84, 74/87, 57/89, 20/90, 27/90, 35/91 and the Official Gazette of the Federal Republic of Yugoslavia - OG FRY - nos. 27/92, 31/93, 24/94, 12/98, 15/98 and 3/02) 60.     The relevant provisions of this Act provided as follows: Article 84 §§ 1 and 2 “The court shall appoint a temporary representative to [act on behalf of] the respondent if it finds, in the course of the proceedings before the court of first instance, that the regular procedure for appointment of ... [such a representative] ... could last too long, resulting in harmful consequences for one or both parties.   Under the conditions set forth in Paragraph 1 of this Article, the court shall appoint a temporary representative ... 4) when the place of residence of the respondent is unknown and the respondent has no counsel ...” 106 § 2 “Written pleadings ... [including initial claims aimed at the institution of court proceedings] ... must state ... the name, occupation and the permanent or current address of the parties ...” Article 133 “ ... [C]ourt documents shall primarily be delivered through regular post but may also be delivered by a designated court employee [“the bailiff”] ... or directly in court.” Article 141 §§ 1 and 2 “If the person to whom a court document is to be delivered does not happen to be [at home], the delivery shall be accomplished by serving the court documents on an adult member of his [or her] household who must receive them. If such persons also happen not to be [at home], the ... [court documents shall be served on] ... the building manager or neighbour, if they agree. If the delivery is to be performed at the office of a person who does not happen to be there, it may be accomplished by serving the court documents on a person working in the same office, if that person so agrees.” Article 142 §§ 1 and 2 “A complaint ... [as well as] ... a court decision against which a separate appeal may be filed shall be delivered to ... [the respondent] ... in person ... If a person who is to be served ... does not happen to be at the place where the delivery is to be performed, the bailiff shall find out when and where that person can be found and shall leave a written notice with one of the persons mentioned in Article 141, paragraphs 1 and 2 of this Act, requesting that he [or she] be present on a certain day and hour in his [or her] flat or office. If the bailiff does not find the person to be served even after this, he [or she] shall proceed in accordance with the provisions of Article 141 of this Act and the delivery shall thus be considered as having been carried out.” Article 144 “If the person to be served, an adult member of the household, ... or an employee of a State body or a legal entity refuses to receive the court documents without legal reason, the bailiff shall leave the said documents in the flat or at the office of that person or post it on the door of the flat or the office in question. The bailiff shall make a note on the delivery slip concerning the day, hour and reason for refusal of reception, as well as the place where he or she left the court documents, and thus the service shall be considered accomplished.” Article 145 §§ 1, 2 and 3 “When a party ... changes its place of residence or moves to another flat ... [prior to the adoption of the final decision in the proceedings] ... [it] ... shall immediately inform the court thereof. If ... [it] ... fails to do so and the bailiff is unable to establish ... [its] ... new flat or place of residence, the court shall order that all further deliveries in respect of this party be posted on the court's own notice board. Eight days ... [thereafter] ... the delivery at issue shall be deemed duly accomplished.” Article 146 “The court shall invite a party ... who ... [is] ... abroad and does not have a representative in ... [Serbia] ... to ... authorise ... [another person] ... to receive all ... [Serbian court-related correspondence] ... If the party ... fails to do so, the court shall appoint ... [such a person] ... on a temporary basis ... and at the party's own expense ...” Article 148 “If a party is unable to establish the address of a person to whom the delivery is to be made, the court shall attempt to obtain relevant information from ... [other State bodies] ... or in some other way.” 2.     Civil Procedure Act 2004 (Zakon o parničnom postupku; published in OG RS no. 125/04) 61.     The substance of Articles 79 § 2 (4), 100 § 2, 127, 135, 136, 138, 139 and 141 of this Act corresponds, in the relevant part, to that of the provisions of the Civil Procedure Act quoted above. 62.     In addition, Article 140 provides that, should “normal” delivery during the course of the proceedings prove to be unsuccessful, all court documents shall be posted on the court's own notice board and that eight days thereafter the delivery at issue shall be deemed duly accomplished. 63.     Finally, under Article 394 and 396, parties may file an appeal on points of law (“ revizija ”) with the Supreme Court. They may do so under certain very specific conditions only and against a final judgment rendered at second instance. 64.     This Act entered into force on 23 February 2005, thereby repealing the Civil Procedure Act referred to above. C.     Enforcement procedure rules 65.     Article 209 of the Enforcement Procedure Act of 2000 ( Zakon o izvršnom postupku ; published in OG FRY nos. 28/00, 73/00 and 71/01), while placing special emphasis on the best interests of the child, states that there shall be an initial period of three days for voluntary compliance with a child custody order. Beyond that, however, fines shall be imposed and, ultimately, if necessary, the child taken forcibly, in co-operation with the Social Care Centre. Finally, under Article 7 of the same Act, only the enforcement order and the court's decision in respect of any complaints filed against this order shall be served in accordance with the relevant civil procedure rules. In all other instances the court's own notice board shall be made use of for this purpose. 66.     The Enforcement Procedure Act of 2004 ( Zakon o izvršnom postupku ; published OG RS no. 125/04) entered into force on 23   February   2005, thereby repealing the Enforcement Procedure Act of 2000. In accordance with Article 304 of this Act, however, all enforcement proceedings instituted prior to 23 February 2005 are to be concluded pursuant to the Enforcement Procedure Act of 2000. D.     Court Organisation Act (Zakon o uređenju sudova; published in OG RS nos. 63/01, 42/02, 27/03, 29/04, 101/05 and 46/06) 67.     The relevant provisions of this Act read as follows: Article 7 “A party or another participant in the court proceedings shall have the right to complain about the work of a court when they consider the proceedings delayed, improper, or that there has been an [untoward] influence on their course and outcome.” Article 51 “The President of a higher instance court shall have the right to monitor the court administration of a lower instance court, and the President of a directly higher court shall have the authority to adopt an act from within the competence of the President of a lower instance court, if the latter omits to perform his duty. The President of a higher instance court may request from the lower instance court information regarding the implementation of existing legislation, information concerning any problems about trials and all information regarding the work of the court. The President of a higher instance court may order a direct inspection of the work of a lower instance court.” Article 52 “When a party to a case or another person taking part in the proceedings files a complaint, the President of the court must, having considered it, inform the complainant about his views concerning its merits as well as any measures taken in this respect, within 15 days of receipt of the complaint. If a complaint was filed through the Ministry of Justice or through a higher instance court, the Minister and the President of a higher court shall be informed of the merits of the complaint and of any measures taken in this respect.” E.     Rules of Court (Sudski poslovnik; published in OG RS nos. 65/03, 115/05 and 4/06) 68.     Under Article 8, inter alia , the President of a court must ensure that the court's work is carried out in a timely manner. He or she shall also look into every complaint filed by a party to the proceedings in respect of delay and respond within 15 days, giving his or her decision and, if necessary, ordering that steps be taken to remedy the situation. 69.     Article 4, inter alia , provides that the Ministry of Justice shall supervise the work of the courts in terms of their timeliness. Should certain problems be identified, the Ministry shall “propose” specific measures to be undertaken within a period of 15 days. F.     Judges Act (Zakon o sudijama; published in OG RS nos. 63/01, 42/02, 60/02, 17/03, 25/03, 27/03, 29/04, 61/05 and 101/05) 70.     The relevant provisions of this Act read as follows: Article 40a §§ 1 and 2 “The Supreme Court of Serbia shall set up a Supervisory Board [“ Nadzorni odbor ”] (“the Board”). This Board shall be composed of five Supreme Court judges elected for a period of four years by the plenary session of the Supreme Court of Serbia.” Article 40b “In response to a complaint or ex officio , the Board is authorised to oversee judicial proceedings and look into the conduct of individual cases. Following the conclusion of this process, the Board may initiate, before the High Personnel Council, proceedings for the removal of a judge based on his unconscientious or unprofessional conduct, or propose the imposition of other disciplinary measures.” G.     Obligations Act (Zakon o obligacionim odnosima; published in OG SFRY nos. 29/78, 39/85, 45/89, 57/89 and OG FRY no. 31/93) 71.     Article 172 § 1 provides that a legal entity (“ pravno lice ”), which includes the State, is liable for any damage caused by one of “its bodies” (“ njegov organ ”) to a “third person”. 72.     Under Articles 199 and 200 of the Obligations Act, inter alia , anyone who has suffered fear, physical pain or mental anguish as a consequence of a breach of “personal rights” (“ prava ličnosti ”) may, depending on their duration and intensity, sue for financial compensation before the civil courts and, in addition, request other forms of redress “which may be capable” of affording adequate non-pecuniary satisfaction. H.     Criminal Code (Krivični zakonik; published in OG RS nos. 85/05, 88/05 and 107/05) 73.     Article 134 § 1 provides, inter alia , that “whoever” by means of “deceit” removes or holds another with the intent to ... coerce” him or her, or another person, to “endure something” shall be sentenced to a prison term of one to ten years. 74.     Under Article 191 anyone who, inter alia , obstructs the enforcement of a child custody decision shall be fined or sentenced to a prison term not exceeding two years. 75.     Article 340 states that “an official or another 'person in charge' who refuses to enforce a final court decision, or does not enforce it within the period prescribed by law or a period set forth in the decision itself, shall be fined or sentenced to a prison term not exceeding two years”. I.       Relevant provisions concerning the Court of Serbia and Montenegro and the succession of the State Union of Serbia and Montenegro 76.     The relevant provisions concerning the Court of Serbia and Montenegro and the succession of the State Union of Serbia and Montenegro are set out in the Matijašević v. Serbia judgment (no. 23037/04, §§ 12, 13 and 16-25, 19 September 2006). THE LAW I.     ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 77.     The applicant complained about the length of the civil proceedings at issue and the bias demonstrated by the presiding judge during those proceedings. In so doing, she relied on Article 6 § 1 of the Convention which, in the relevant part, reads as follows: “In the determination of his [or her] civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time by an ... impartial tribunal ... ” A.     Admissibility 1.     Arguments of the parties (a)     As regards length 78.     The Government submitted that the applicant had not exhausted all available, effective domestic remedies. In particular, she had failed to complain about the delay in question to the President of the Municipal Court, the President of the District Court, the Minister of Justice and the Supreme Court's Supervisory Board, respectively (see paragraphs 67-70 above). Further, she had not made use of the complaint procedure before the Court of Serbia and Montenegro, pursuant to the Constitutional Charter, the Charter on Human and Minority Rights and Civic Freedoms, and the Court of Serbia and Montenegro Act (see paragraph 76 above). Finally, the Government maintained that the applicant had failed to bring a separate civil lawsuit under Articles 199 and 200 of the Obligations Act (see paragraphs 71 and 72 above). 79.     The applicant stated that a complaint to the Court of Serbia and Montenegro, vaguely defined as it was, could not be considered an effective domestic remedy in terms of Article 35 § 1 of the Convention, and that, having complained to the President of the Municipal Court on 31   March   2003, she had not complained to the President of the District Court or the Ministry of Justice as this would only have resulted in additional delay and, in any event, could not have provided her with any effective redress. Finally, the applicant stated that Article 199 of the Obligations Act was irrelevant, as it concerned civil defamation primarily, and that a successful lawsuit based on Article 200 of the same Act could, at best and after years of litigation, have provided her with compensation for the non-pecuniary damage suffered, but could not have expedited the proceedings of which she complained. (b)     As regards the alleged bias demonstrated by the presiding judge 80.     The Government submitted that in view of the overall conduct of the judge in question this complaint was groundless. In any event, the applicant's request for the judge's removal had been duly considered and subsequently rejected by the President of the Municipal Court personally. 81.     The applicant provided no additional comments in this respect. 2.     Relevant principles concerning length 82.     The Court recalls that, according to its established case-law, the purpose of the domestic remedies rule in Article   35 § 1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged before they are submitted to the Court. However, the only remedies to be exhausted are those which are effective. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time (see, inter alia , Vernillo v. France , judgment of 20   February 1991, Series A no. 198, pp.   11–12, §   27, and Dalia v. France , judgment of 19 February 1998, Reports 1998-I, pp. 87-88, §   38). Once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement (see Dankevich v. Ukraine, no. 40679/98, § 107, 29   April 2003). 83.     The Court emphasises that the application of this rule must make due allowance for the context. Accordingly, it has recognised that Article   35 § 1 must be applied with some degree of flexibility and without excessive formalism. The Court has recognised that the rule of exhaustion of domestic remedies is neither absolute nor capable of being applied automatically; in reviewing whether the rule has been observed, it is essential to have regard to the particular circumstances of the individual case. This means, amongst other things, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned, but also of the general context in which they operate, as well as the personal circumstances of the applicant (see, Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports 1996-IV, p. 1211, § 69). It must examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected in order to exhaust domestic remedies. 84.     Finally, the Court reiterates that the decisive question in assessing the effectiveness of a remedy concerning a complaint about the length of proceedings is whether or not there is a possibility for the applicant to be provided with direct and speedy redress, rather than an indirect protection of the rights guaranteed under Article 6 (see Scordino v. Italy (no. 1) [GC], no.   36813/97, §   195, ECHR 2006, and Sürmeli v. Germany [GC], no. 75529/01, §   101, 8 June 2006). In particular, a remedy of this sort shall be “effective” if it can be used either to expedite a decision by the courts dealing with the case or to provide the litigant with adequate redress for delays which have already occurred (see Kudła v. Poland [GC], no.   30210/96, §§ 157-159, ECHR 2000-XI, Mifsud v. France (dec.), [GC], no.   57220/00, § 17, ECHR 2002-VIII, and Sürmeli v. Germany [GC], cited above, § 99). 3.     The Court's assessment (a)     As regards the length 85.     The Court notes that requests to the President of the Municipal Court, the President of the District Court, the Ministry of Justice and the Supreme Court's own Supervisory Board to speed up the proceedings at issue, as referred to by the Government, all represent hierarchical complaints or, in other words, no more than mere information submitted to a higher instance with full discretion to make use of its powers as it sees fit (see paragraphs 67-70 above). In addition, had any of these proceedings ever been instituted, they would have taken place exclusively between the supervisory instance in question and the judge/court concerned. The applicant herself would not have been a party to such proceedings and would, at best, have only had the right to be informed of their outcome (see, mutatis mutandis , Horvat v. Croatia , no. 51585/99, § 47, ECHR 2001 ‑ VIII). None of these remedies can therefore be considered effective within the meaning of Article 35 § 1 of the Convention. 86.     A separate claim for damages caused by procedural delay (see paragraphs   71 and 72 above) would also have been ineffective. Even assuming that the applicant could have obtained compensation for the past delay,   the Government have failed to show that such proceedings would have been speedier than any other “ordinary” civil suit which could have lasted for years and gone through several levels of jurisdiction (see, mutatis mutandis , Merit v. Ukraine , no. 66561/01, § 59, 30 March 2004, and Scordino v. Italy (no. 1) , cited above, § 195 ). Moreover, for the same reason, the said claim   was clearly not capable of expediting the proceedings at issue. 87.     Finally, as regards the Government's submission that the applicant should have filed a complaint with the Court of Serbia and Montenegro, the Court recalls that it has already held that this particular remedy was unavailable until 15 July 2005 and, further, that it remained ineffective until the break up of the State Union of Serbia and Montenegro (see Matijašević v. Serbia , cited above, §§ 34-37). The Court sees no reason to depart in the present case from this finding and concludes, therefore, that the applicant was not obliged to exhaust this particular avenue of redress. 88.     In view of the above, the Court concludes that the applicant's complaint about the undue length of the proceedings cannot be declared inadmissible for non-exhaustion of domestic remedies under Article 35 § 1 of the Convention. Accordingly, the Government's objection in this respect must be dismissed.   The Court also considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and finds no other ground to declare it inadmissible. The complaint must therefore be declared admissible. (b)     As regards the alleged bias 89.     As regards the applicant's additional complaint concerning the alleged judicial bias demonstrated during the civil proceedings, the Court notes that these proceedings are still pending, so this complaint is premature and must, as such, be rejected for non-exhaustion of domestic remedies, in accordance with Article 35 §§ 1 and 4 of the Convention. B.     Merits 1.     Arguments of the parties 90.     The Government submitted that the impugned proceedings were extremely complex and sensitive, in view of the applicant's health, the legal and factual issues involved, and what was at stake for the parties. 91.     They argued that it was the applicant who had failed in her duty to provide the Municipal Court with the respondent's correct address, which, in turn, led to the delay complained of, and pointed out that the hearing scheduled for 23 December 2005 was adjourned at the applicant's explicit request (see paragraphs 16 and 17 above). 92.     The Government maintained that the Municipal Court had, however, acted upon all of the applicant's proposals and done everything in its power to establish the respondent's correct address. Nevertheless, it could not, under domestic law, have ordered that the respondent be brought to court forcibly. Nor indeed could it have appointed a “temporary representative” to act on his behalf (see paragraph 60, in particular Article 84 of the Civil Procedure Act 1977, and paragraph 61 above). 93.     Finally, the Government submitted that the proceedings at issue had effectively commenced on 3 November 2005, when the respondent was duly served with the relevant court documents for the first time, although they also pointed out that the respondent State had ratified the Convention on 3 March 2004 which is why these proceedings had been within the Court's competence ratione temporis for a period of “a little more than two years”. 94.     The applicant argued that the proceedings in question had been pending at first instance since 1999, despite their pressing nature, and that it was up to the State to organise its judicial system in a way which would guarantee everyone's right to a fair hearing within a reasonable time. 95.     Further, the applicant maintained that she had provided the respondent's correct address in her initial claim filed with the Municipal Court on 11 February 1999 and, moreover, that the respondent had been duly served at that very address by the Social Care Centre prior to the institution of the civil proceedings, as well as by the Municipal Court recently (see paragraphs 12, 37 and 38 above). 96.     In any event, from the outset, the respondent had made it abundantly clear that he would not take part in any proceedings and thereafter had done everything to avoid receipt of the court summonses/documents sent to him (see paragraphs 15, 37 and 50 above). In such circumstances, the applicant could not reasonably have been expected to submit the respondent's new address, time and time again, and nor was she legally obliged to do so. On the contrary, it was up to the respondent to inform the court of any change in his address, while the Municipal Court, for its part, had clearly failed to make use of the numerous procedural tools at its disposal in order to have the respondent served formally (see paragraphs 60-62 above). 97.     Finally, the applicant pointed out that the actions of the Municipal Court referred to by the Government were undertaken at her own insistence primarily, as well as in response to proposals made by her lawyer. The applicant's claim contained all of the information necessary for the Municipal Court to proceed effectively, and the applicant herself could not be blamed for the evasive conduct of the respondent or the inactivity of the Serbian judiciary. 2.     Relevant principles 98.     The reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and having regard to the criteria laid down in the Court's case-law, in particular the complexity of the case, the behaviour of the applicant and the condu