CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 20 septembre 2016

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .sE208486F { font-family:Arial; color:#ff0000 } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s79DE5897 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .sD53A5F9E { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; line-height:115% } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s2242FE47 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid; font-size:13pt } .s8408AAD1 { font-family:Arial; font-size:12pt; font-weight:bold } .s927039E3 { font-family:Arial; font-size:12pt; font-weight:bold; font-style:italic } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sAADB120E { margin-top:6pt; margin-left:28.35pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .sF3B96856 { width:11.87pt; display:inline-block } .s74FD211E { width:197.76pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block } .s53E9AB06 { margin-top:36pt; margin-bottom:0pt; text-align:right; page-break-inside:avoid; page-break-after:avoid } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7D459E97 { height:0pt; text-align:left; display:block; position:absolute; z-index:1 } .sE8DFED1 { margin-top:135.2pt; margin-left:98.4pt; position:absolute } .sDA9E29FC { height:0pt; text-align:left; display:block; position:absolute; z-index:0 } .s3F5BF30B { margin-top:48.7pt; margin-left:241.3pt; position:absolute } .s76CF415B { page-break-before:always; clear:both } .s78C930D7 { font-family:Arial; font-weight:bold; font-style:italic; letter-spacing:0.5pt } .sA5C4F8A9 { margin-top:36pt; margin-bottom:0pt; text-align:left; page-break-inside:avoid; page-break-after:avoid }       THIRD SECTION             CASE OF ZDRAVKOVIĆ v. SERBIA   (Application no. 28181/11)             JUDGMENT     STRASBOURG     20 September 2016   FINAL   20/12/2016   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Zdravković v. Serbia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Luis López Guerra, President,   Helena Jäderblom,   Johannes Silvis,   Branko Lubarda,   Pere Pastor Vilanova,   Alena Poláčková,   Georgios A. Serghides, judges, and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 23 August 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 28181/11) 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 Nataša Zdravković (the applicant changed the name in the course of the proceedings), on 21 April 2011. 2.     The applicant was represented by Ms D. Jovanović, a lawyer practising in Beograd. The Serbian Government (“the Government”) were represented by Ms V. Rodić, their Agent at the time. 3.     The applicant alleged that Serbian authorities did not do enough to enforce two separate interim court orders awarding her access rights and custody over her minor child. She also complained about the alleged protracted length of the custody proceedings. 4.     On 18 November 2013 the complaints concerning the length of the custody proceedings and the non-enforcement of the interim orders were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE A.     Introduction 5.     The applicant was born in 1973 and lives in Belgrade. 6.     The applicant and S.S. (“the respondent”) married in 1998. Their son V.S. was born in August 1999. They lived in the respondent’s parents’ house in a neighbourhood of Belgrade. 7.     In May 2008 the applicant moved to her parents’ house in the same neighbourhood. V.S. continued living with his father and his paternal grandparents. B.     The applicant’s interim access rights 8.     On 19 May 2008 the applicant filed a request for interim custody with the competent first-instance court. 9.     On 8 July 2008 the first-instance court rejected the applicant’s request for interim custody, but granted her extensive access rights in respect of the child pending the final outcome of the custody proceedings. This interim access order was immediately enforceable. 10.     It appears that the interim access order was respected, with some resistance on the part of the child, until 13 August 2008, when the child ran away from the applicant during a visit and went back to the respondent’s house. 11.     On 22 September 2008 the enforcement judge ordered enforcement of the said access order. After several failed attempts by the applicant to spend time with the child in accordance with the order, the enforcement judge sent a bailiff on 18 and 20 November 2008 to make an unannounced visit to monitor the applicant’s attempt to make contact with the child. During the visit, the bailiff informed the enforcement judge that the respondent had brought the child to the front gate of the house, but the child had refused to leave with the applicant, even after the respondent tried to persuade him, and had gone back inside. After receiving the report,   the enforcement judge scheduled an enforcement hearing for 5   December 2008. 12.     On 5 December 2008 the enforcement judge ordered a child support team from V.S.’s school to implement a system of psychological preparation to assist the child’s acceptance of contact with his mother. 13.     On 9 January 2009 the enforcement judge asked the Social Care Centre to contemplate initiating corrective monitoring of the respondent’s exercise of parental rights in the light of the respondent’s substantial influence on the child’s hostility toward his mother. 14.     On 7 April 2009 the Social Care Centre placed the respondent under formal corrective supervision ( korektivni nadzor nad vršenjem roditeljskog prava ). On 19 June 2009 the Social Care Centre, with the approval of the enforcement judge, applied the same measure to the applicant so as to enhance the parents’ collaboration with a view to satisfying the child’s emotional needs. 15.     In the meantime, on 5 June 2009, the enforcement judge heard a psychologist working with the child. The psychologist advised the judge that interviewing the child within the proceedings would not be in his best interest. 16.     Due to the respondent’s failure to prepare the child appropriately for the contact with his mother, on 4 May 2009 the enforcement judge ordered the respondent to pay a fine in the amount of 10,000 Serbian dinars (RSD) and on 6 June 2009 a fine in the amount of 150,000 RSD, both within three days. On 5 October 2009 the competent second-instance court rejected the respondent’s appeals against the fines. On 19 February and 10 May 2010, after the failure of the applicant to pay the fines, the enforcement judge ordered their mandatory enforcement. 17.     On 26 November 2009 the Social Care Centre asked the enforcement judge to postpone enforcement of the access order for three months in view of the pending parental therapy. The Centre further asked for, and the judge approved, a further three months of therapy, stating that an improvement in the child’s attitude as well as in the parents’ relationship had been achieved. The Centre also proposed to the applicant and the respondent to stay the ongoing court proceedings until the therapy had ended. They observed that the court proceedings, in which the parents acted as opponents, jeopardised the progress achieved to date. It would appear that the applicant and the respondent did not accept this recommendation. 18.     The parental therapy, which at that time had already lasted for six months, included 23 sessions in which the Social Care Centre’s professionals continuously and intensively worked with the applicant, the respondent, the child and the paternal grandparents to reach mutually acceptable arrangements and enforce the interim measures in line with the best interest of the child. 19.     On 13 July 2010 the custody judgment of 24 November 2009 became final (see paragraph 33 below) and the decision on interim custody rights came to an end. The enforcement proceedings were later formally terminated by the enforcement judge on 28 February 2011. The enforcement judge, however, explicitly ordered continuation of the enforcement in respect of the fine of June 2009. C.     The applicant’s interim custody rights 20.     On 25 October 2008 the applicant lodged a new request for interim custody after the Mental Care Institute ( Institut za mentalno zdravlje , hereafter “MCI”) conducted an examination of the parental capacity of both parties at the request of the first-instance court. The MCI report recommended that custody be awarded to the applicant. 21.     On 11 November 2008 the first-instance court granted interim custody to the applicant and ordered the respondent immediately to surrender the child to her. It also quashed the part of the interim order of 8   July 2008 containing its decision not to grant custody to the applicant. The rest of the interim access order remained in force. 22.     On 4 December 2008 the enforcement court ordered enforcement of the interim custody order. The respondent appealed on 26 December 2008, claiming that the child himself did not want to live with the applicant. The appeal was rejected on 29 September 2009. 23.     The first attempt to reunite the applicant with the child took place on 22 December 2008. The enforcement judge, a bailiff, several representatives of the Social Care Centre, two uniformed policemen, three plain clothes policemen, the applicant and her lawyer all entered the courtyard of the respondent’s house, expecting that the child would be surrendered. The judge and the Centre’s representatives explained to the child in front of the others that he should leave and go with his mother to her house, but the child rejected the planned reunion and went back inside. The respondent allegedly would not allow the enforcement to take place in the house. He maintained that he had informed the child that various officials would come, but had not prepared him for reunion. The applicant refused forceful removal of the child. The enforcement judge noted that the child was not yet prepared for a transfer of custody and postponed the enforcement until January 2009 at the Social Care Centre’s premises. The enforcement judge asked the parties and the Social Care Centre’s representative to prepare the child adequately for the next reunion. 24.     On 15 January and 4 February 2009 the enforcement judge adjourned the custody transfer scheduled for those dates as it was awaiting an opinion from the Social Care Centre regarding the formal corrective supervision of the respondent, as requested in the interim access enforcement proceedings (see paragraph 14 above). 25.     The enforcement judge re-scheduled the transfer of custody for 1   April 2009 at the Social Care Centre’s premises. The attempt of transfer was conducted in the presence of the enforcement judge, the psychologist, the psychiatrist and the lawyer from the Social Care Centre and police officers. The child again refused to be separated from his father. The police explained that they could not forcefully remove the respondent from the premises to enable the social experts and the judge to facilitate a conversation with the child in his absence, since the child was clinging on the father, crying and refusing to let him go. It appears that the applicant was also against the use of force (according to a report to the enforcement judge by the Social Care Centre of 31 March 2010, the applicant refused the possibility of the use of force throughout the proceedings). The Social Care Centre recommended that psychotherapeutic support be provided for the child. The enforcement of the custody transfer was postponed. Shortly afterwards, the respondent was placed under the corrective supervision of the Social Care Centre (see para. 14 above). 26.     On 5 June 2009 the enforcement judge held a hearing which appears to have been the last one within these enforcement proceedings. 27.     The applicant petitioned the enforcement judge to fine the respondent for obstructing her contact with the child, hoping that this would compel him to surrender the child. 28.     On 26 June 2009 the enforcement judge imposed on the respondent a fine in the amount of 150,000 RSD for failing to appropriately psychologically prepare the child for the reunification. It would appear that the fine has been paid. 29.     On 12 February and 31 March 2010 the Social Care Centre informed the enforcement judge that its psychological therapies in respect of the family in question had produced no results (see paragraphs 17-18 above). According to their reports, it became clear that the respondent had cooperated in form only and had in fact failed to take steps to encourage the child to have substantive contact with the applicant. 30.     On 13 July 2010 the custody judgment of 24 November 2009 became final and the decision on interim custody rights came to an end. From that moment, efforts to enforce the final custody judgment commenced (see paragraphs 38-42 below). On 25 March 2011 the enforcement judge formally terminated the enforcement proceedings. D.     Civil proceedings (divorce, custody and child maintenance) 31.     On 19 May 2008 the applicant lodged a civil claim requesting the dissolution of her marriage with S.S., sole custody of V.S. and maintenance. 32.     On 24 November 2009 the first-instance court dissolved the applicant’s marriage, granted her sole custody of V.S. and specified the respondent’s access rights. 33.     On 13 July 2010 and 18 January 2011 the second-instance court and the Supreme Court of Cassation, respectively, upheld this judgment. E.     The constitutional appeal proceedings 34.     On 28 December 2009 the applicant filed a constitutional appeal with the Constitutional Court of Serbia ( Ustavni sud Republike Srbije ). She relied on various Articles of the Constitution, Articles 6, 8 and 13 of the Convention and Articles 3 and 9 the UN Convention on the Rights of the Child. She sought redress for the protracted length of the custody and subsequent criminal proceedings and the non-enforcement of the judicial interim access and custody decisions in her favour which, she claimed, violated her rights to a fair trial and to family life. She also complained that she had not had any legal avenue available to expedite those proceedings. 35.     On 22 July 2010 the Constitutional Court rejected the applicant’s appeal. 36.     As regards the protracted length of the custody proceedings, the Constitutional Court considered that the first-instance court had acted diligently, without any substantial periods of inactivity. It found the case to have been particularly complex, as the expert findings regarding the best interests of the child had conflicted with the latter’s own wish as to who to live with. 37.     It also found that the non-enforcement of the interim access and custody orders during the same period had been attributable to the particular complexity of the case, as the child had objected to being reunited with the applicant. It found that the enforcement court had undertaken, without any delay, all necessary measures, including fining the respondent, for the purpose of enforcing effectively the applicant’s rights. F.     Other relevant facts as submitted by the parties 1.     Enforcement of the final custody judgment 38.     The judgment of 24 November 2009 became enforceable on 27   September 2010 and the enforcement order was issued on 29 November 2010. 39.     The first forcible transfer of custody was scheduled for 9 March 2011, but the child refused any kind of contact with the applicant. The court noted that the respondent had failed to prepare the child for reunion. The applicant explicitly refused to countenance the use of force against the respondent and the child as the means of enforcement. The enforcement was therefore adjourned. 40.     On 23 March 2011, upon the initiative of the Social Care Centre, the applicant and the respondent signed an Agreement on Access Rights designed to assist the re-establishing of contact between the applicant and V.S. in order to facilitate the enforcement of the custody judgment. 41.     Despite this agreement, on 25 March 2011 the enforcement court imposed a fine on the respondent in the amount of RSD 100,000 because of his failure to comply with the judgment of 24 November 2009. It also ruled that the respondent was to be given three days from the date of receipt of that order to surrender the child voluntarily to the applicant and with the added condition that, should he fail to do so, he would have to pay a further fine of RSD 150,000. The respondent did not comply with the order and it seems that the fine in the amount of 100.000 RSD was subsequently imposed and paid. 42.     The court scheduled a new forcible transfer of custody for 9   March 2011. In preparation for the enforcement, the Social Care Centre’s psychologist drew up a detailed plan of action. The psychologist’s assessment, after working with the child, was that such a transfer would be impossible or highly traumatic for the child and the enforcement was postponed once again. 2.     Revision of the custody judgment of 24 November 2009 43.     On 9 February 2011 the respondent filed a claim for revision of the judgment of 24 November 2009, seeking sole custody of V.S. He also requested an interim custody order to the same effect. 44.     On 24 June 2011 the Social Care Centre provided the first-instance court with an expert opinion. The Social Care Centre acknowledged that there had been no mechanisms available to facilitate a forcible physical transfer of child custody to the applicant in view of the respondent’s refusal. According to the report, the only feasible proposal would be for the child to continue living with his father. Even though, taking into account the chronology of events, parental capacity, justice and equity, the opposite proposal would be more appropriate, it could propose only this arrangement “not as an expression of their wish, but as the sole solution which is possible to impose and enforce in practice”. A change of residence would in any event have a negative impact on the child’s development. 45.     On 20 June 2012 the first-instance court granted sole custody to the respondent, ordered the applicant to pay child maintenance and specified the applicant’s access rights as eight hours every weekend, as well as specified periods of school holidays. 3.     Criminal proceedings against the respondent 46.     On 29 August 2008 and 23 June 2009 the applicant filed criminal complaints against the respondent for parental child abduction and continuous non-compliance with the interim access and custody orders. On 2 June 2009 and 28 September 2010 the competent prosecutor’s office charged the applicant with those crimes. None of the scheduled hearings was held. In September 2011 the first-instance court stayed the criminal proceedings as the prosecutor’s office had dropped the charges. The applicant subsequently took over the prosecution as subsidiary prosecutor. On 20 June 2012 the first-instance court, in a reasoned judgment, acquitted the respondent. It found, on the basis of numerous testimonies, three expert opinions, four expert reports from the civil proceedings case-file and other documentary evidence that the respondent always made the child available for enforcement, that he never physically or verbally, actively or passively obstructed enforcement at any point, and that there were no indications that the child ever showed signs that he was under pressure or undue influence not to have contact with his mother. On 25 October 2012 the second-instance court upheld this judgment. 4.     Contact between the child and the applicant 47.     It would appear that the applicant and her son have re-established contact with each other since the signing of the Agreement on Access Rights of 23   March 2011 and the revision of the custody judgment of 20   June 2012. It would appear that they have been meeting every weekend for at least an hour without supervision. The child still lives with the respondent. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.   The Enforcement Procedure Act ( Zakon o izvršnom postupku published in the Official Gazette of the Republic of Serbia – OG RS – no. 125/2004) 48.     Article 45 provides for fines of up to 150,000 RSD which the enforcement court can impose on the enforcement debtor in case of non-compliance with any of the court’s instructions or orders within the enforcement proceedings. Article 224 provides that the enforcement court must take particular care concerning the interests of the child when conducting enforcement proceedings. It also sets a deadline of three days for voluntary compliance with the enforcement order and authorises the enforcement courts to impose fines should the debtor fail to comply. In the event of failure to persuade the debtor to comply even after the imposition of the fines, paragraph four provides for the possibility of physical removal. Article 226 provides that the enforcement of the decisions related to the parental access or custody rights must be conducted with the assistance of the Social Care Centre’s team of experts. B.     Family Act ( Porodični zakon published in the OG RS no. 18/2005) 49.     Article 80 regulates the authority of the Social Care Centre to conduct corrective supervision of parental duties. Article 204 establishes that proceedings relating to family disputes which involve a child are urgent. Article 230 provides for the compulsory mediation and conciliation proceedings which must be conducted in parallel with divorce proceedings if the latter were not initiated by mutual agreement of the marital partners. It further provides that mediation and conciliation are conducted with the expert assistance of the Social Care Centre. Article 270 provides that civil courts, when deciding about awarding or retracting parental rights, must obtain the opinion from the Social Care Centre’s experts. C.     Criminal Code ( Krivični zakonik published in the OG RS no.   85/2005, 88/2005, 107/2005, 72/2009 and 111/2009) Abduction of Minor Article 191 “1. Whoever unlawfully detains or abducts a minor from a parent, adoptive parent, guardian or other person or institution entrusted with care of the minor or whoever prevents enforcement of decision granting custody of a minor to a particular person, shall be punished with a fine or imprisonment up to two years. 2. Whoever prevents enforcement of the decision of a competent authority setting out the manner of maintaining of personal relationships of a minor with parent or other relative, shall be punished with a fine or imprisonment up to one year.” THE LAW I.     ALLEGED VIOLATIONS OF ARTICLES 6 AND 8 OF THE CONVENTION 50.     The applicant complained under Articles 6 § 1 and 8 of the Convention about the non-enforcement of the interim custody and access orders. She further complained, relying on Article 6 § 1 of the Convention, of the protracted length of the custody proceedings. 51.     The relevant provisions of the said Articles read as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” Article 8 “1.     Everyone has the right to respect for his [or her] private and family life,.... 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... for the protection of health or morals, or for the protection of the rights and freedoms of others.” A.     Admissibility 52.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     Regarding the non-enforcement of the interim access and custody orders, both considered under Article 6 § 1 of the Convention 53.     The Government argued firstly that the impugned proceedings had involved particularly complex and sensitive issues, further complicated by the fact that the applicant’s child had consistently refused to go to live with the applicant. Secondly, the domestic authorities had made every effort to enforce the two interim orders in question whilst trying to protect the best interests of the child. Finally, the applicant had been resolute in rejecting a forcible transfer of custody in situations where such a transfer would have been possible, and instead favoured a gradual process of reunification through the imposition of fines and the assistance of the Social Care Centre. The applicant reaffirmed her complaints. 54.     The Court refers to its settled case-law to the effect that Article 6, inter alia , protects the implementation of final, binding judicial decisions which, in States that accept the rule of law, cannot remain inoperative to the detriment of one party. Accordingly, the execution of a judicial decision cannot be prevented, invalidated or unduly delayed (see, among other authorities, Hornsby v. Greece , judgment of 19 March 1997, Reports of Judgments and Decisions 1997-II, pp. 510-11, § 40; Burdov v. Russia , no.   59498/00, § 34, ECHR 2002-III; Jasiūnienė v. Lithuania , no. 41510/98, §   27, 6 March 2003; and Damnjanović v. Serbia , no. 5222/07, § 67, 18   November 2008). 55.     The Court also notes that, irrespective of whether enforcement is to be carried out against a private or State actor, it is up to the State to take all necessary steps to execute a final court judgment as well as, in so doing, ensuring effective participation of its entire apparatus, failing which it will fall short of the requirements laid down in Article 6 § 1 (see, mutatis mutandis , in the child custody context, Damnjanović , cited above, § 68, and Pini and Others v. Romania , nos. 78028/01 and 78030/01, §§ 174-189, ECHR 2004-V). 56.     The Court notes that the interim access order had remained unenforced from 22 September 2008, when its execution was ordered, until 13 July 2010 when it came to an end. The interim custody order remained unenforced from 4 December 2008 until 13 July 2010 when it came to an end. They, therefore, lasted approximately one year and ten months in relation to the applicant’s interim access rights and approximately one year and eight months in relation to the applicant’s interim custody rights. Secondly, these two sets of enforcement proceedings ran concurrently, since the domestic courts took the view that maintaining the interim access order would be an effective measure enhancing the likelihood of re ‑ establishing contact between the child and the applicant before their reunion, given the circumstances of the case. Thirdly, the child, between nine and twelve years old at the time, had been unwilling to spend time with the applicant and had made it clear that he wanted to continue living with the respondent. Fourthly, the respondent himself had, for the most part, been uncooperative. Fifthly, the Social Care Centre, itself a State body which works closely with the civil and the enforcement courts, had played a constructive role in the proceedings. Sixthly, the domestic courts had imposed fines on several occasions in an attempt to secure the respondent’s compliance. Lastly, the enforcement judge had ordered the physical transfer of custody to the applicant on several occasions, but the applicant, although she had acted with much diligence throughout the proceedings, had ultimately been unable physically to assume custody of the child in the absence of his explicit consent to this effect and the applicant’s consistent refusal of the forcible measures. 57.     In view of the above, the Court concludes that the State has taken all necessary steps to enforce the final custody judgment in her favour. There has, accordingly, been no violation of Article 6 § 1 of the Convention. 2.     Regarding the non-enforcement of the interim access and custody orders, both considered under Article 8 of the Convention 58.     The Government maintained that there had been no violation of Article 8. They contended that the domestic courts had done everything in their power to have the decisions on interim access and custody rights enforced. They emphasised the active and constructive role of the courts and the Social Care Centre, which had finally led to regular meetings, at least, between the applicant and the child. They further maintained that the domestic authorities had had to strike a careful balance between the applicant’s undisputed right to have a connection with her child and the best interests of the child, who was refusing any contact with her. They also maintained that the applicant’s explicit and consistent refusal of the use of force against the respondent and the child expressed both during the enforcement attempts and during the parental therapy sessions, while understandable and commendable under the circumstances, had contributed to the inability of the domestic authorities to enforce the decisions. In any event, the child was strongly opposed to living with the applicant and the applicant’s contact with the child improved only after the threat of a transfer of custody ceased following the 2011 Agreement on Access Rights and the revision of the 2009 judgment. 59.     The applicant reaffirmed her complaints. She furthermore asserted that the child had been systematically manipulated by the respondent into refusing contact with her and argued that the authorities should have taken more preparatory steps in order to secure the re-establishment of meaningful contact and the transfer of custody. 60.     The Court notes that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of “family life” within the meaning of Article 8 of the Convention (see, among other authorities, Monory v. Romania and Hungary , no. 71099/01, § 70, 5 April 2005). 61.     Moreover, even though the primary object of Article 8 is to protect the individual against arbitrary action by public authorities, there are, in addition, positive obligations inherent in an effective “respect” for family life. In both contexts, regard must be had to the fair balance to be struck between the competing interests of the individual and of the community as a whole; in both contexts the State enjoys a certain margin of appreciation (see Keegan v. Ireland , judgment of 26 May 1994, Series A no. 290, p. 19, § 49). 62.     In relation to the State’s obligation to implement positive measures, the Court has held that Article 8 includes for parents a right that steps be taken to reunite them with their children and an obligation on the national authorities to facilitate such reunions (see, among other authorities, Ignaccolo-Zenide v. Romania , no. 31679/96, § 94, ECHR 2000-I; Nuutinen v. Finland , no. 32842/96, § 127, ECHR 2000-VIII; and Iglesias Gil and A.U.I. v. Spain , no. 56673/00, § 49, ECHR 2003-V). 63.     What is decisive is whether the national authorities have taken all such necessary steps to facilitate the execution as can reasonably be demanded in the specific circumstances of each case (see, mutatis mutandis , Hokkanen v. Finland , 23 September 1994, § 58, Series A no. 299 ‑ A; Ignaccolo-Zenide , cited above, §   96; Nuutinen , cited above, § 128; and Sylvester v. Austria , nos. 36812/97 and 40104/98, § 59, 24 April 2003). 64.     In this context, the adequacy of a measure is to be judged by the swiftness of its implementation, as the passage of time can have irremediable consequences for relations between the child and the parent who do not cohabit (see Ignaccolo-Zenide , cited above, § 102). 65.     Finally, the Court has held that, although coercive measures against children are not desirable in this sensitive area, the use of sanctions cannot be ruled out in the event of unlawful behaviour by the parent with whom the child lives (see Ignaccolo-Zenide , cited above, § 106). 66.     It was common ground that the bond between the applicant and her child fell within the scope of “family life” within the meaning of Article 8 of the Convention. 67.     The Court notes that the interim access order had remained unenforced from 22 September 2008, when its execution was ordered, until 13 July 2010 when it came to an end. The interim custody order remained unenforced from 4 December 2008 until 13 July 2010 when it came to an end. Secondly, the Court notes the constructive approach taken by the domestic courts in deciding to run the two sets of proceedings concurrently in order to facilitate re-establishment of the contact between the applicant and the child which was intended to result in their reunion. This also provided the domestic authorities with additional possibilities, such as in-school counselling of the child, corrective supervision of parental rights, supervised meetings between the applicant and the child and parental therapy, all of which were implemented in a diligent and timely manner. Thirdly, the domestic courts had resorted to fining the respondent on several occasions in an attempt to secure his compliance. Fourthly, while the domestic courts were unable to enforce all the aspects of the access order because of the respondent’s lack of cooperation and the child’s refusal to be alone with the applicant, they gradually re-established the contact between them. Lastly, but most importantly, on at least two occasions ‒ on 22   December 2008 and 1 April 2009 ‒ the authorities attempted a physical transfer of custody under threat of the use of force, but the applicant was unable to physically assume custody of the child as he refused to leave the respondent and on one occasion ran away. 68.     In view of the above, the Court finds that the State has taken the necessary steps to enforce the interim custody order in question. There has, accordingly, been no violation of Article 8 of the Convention. 3.     Regarding the length of the custody proceedings, considered under Article 6 § 1 of the Convention 69.     The Government reiterated their argument that the impugned proceedings had involved particularly complex issues since the child did not want to live with the applicant. They further maintained that the domestic courts had acted diligently, that the first-instance judgment had been delivered one year and six months after the initiation of the proceedings, that the second ‑ instance court had taken less than seven months to decide on appeal ‒ after which the custody judgment had become final and enforceable ‒ and that the Supreme Court had delivered its decision within six months of the delivery of the second-instance judgment. 70.     The applicant reaffirmed her complaints. 71.     According to the Court’s case-law, the reasonableness of the length of proceedings has to be assessed, in particular, in the light of the complexity of the case and of the conduct of the applicant and of the relevant authorities. In cases relating to civil status, what is at stake for the applicant is also a relevant consideration and special diligence is required in view of the possible consequences which excessively lengthy 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; Maciariello v. Italy , 27 February 1992, § 18, Series A no.   230 ‑ A; and M.C. v. Finland (dec.), no. 28460/95, 25 January 2001). 72.     Turning to the present case, the Court notes that the impugned proceedings commenced on 19 May 2008, that the final judgment was delivered by the second-instance court on 13 July 2010 and that the Supreme Court of Cassation, acting as a court of third instance, delivered its judgment on 18 January 2011. The overall length of these proceedings, which were conducted before three levels of jurisdiction was, therefore, one day short of two years and eight months. The Court further notes that the first-instance court swiftly issued the orders on interim measures that were immediately enforceable, that no significant delays imputable to authorities have been detected in the conduct of the proceedings, and that the case was of some complexity, given the child’s refusal to live with the applicant or even to maintain contact with her. 73.     In the overall circumstances, whilst taking into account what was at stake for the applicant and her son, the Court does not find that the length of the proceedings was excessive. There has, accordingly, been no violation of Article 6 § 1 of the Convention. FOR THESE REASONS, THE COURT 1.     Declares , unanimously, the application admissible;   2.     Holds , by five votes to two, that there has been no violation of Article 6 § 1 of the Convention;   3.     Holds , by five votes to two, that there has been no violation of Article 8 of the Convention. Done in English, and notified in writing on 20 September 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.   Fatoş Aracı   Luis López Guerra Deputy Registrar   President In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinions of Judges Pastor Vilanova and Serghides are annexed to this judgment. L.L.G. F.A. DISSENTING OPINION OF JUDGE PASTOR VILANOVA The Court has concluded, by a large majority (five votes to two), that there has been no violation of Articles 6 and 8 of the Convention in the present case. To my regret, I cannot agree with this decision. Our case-law has acknowledged the right to the execution of final binding judicial decisions (see, among other authorities, Hornsby v. Greece , 19 March 1997, § 40, Reports of Judgments and Decisions 1997 ‑ II), but has also found that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of “family life” (see Monory v.   Romania and Hungary , no. 71099/01, § 70, 5 April 2005). In the present case, the Serbian courts granted the applicant sole custody of her nine-year-old son on two occasions (the order of 11 November 2008 and the judgment of 24 November 2009 in which she was also granted a divorce) and, prior to that, she had been granted extensive access rights (order of 8 July 2008). Nevertheless, these judicial decisions have never been effectively executed, because of obstructive manoeuvres on the part of the child’s father. Proof of the facts mentioned above is to be found in the remarkable reports by the Social Care Centre issued on 12 February and 31   March 2010 (see paragraph 29 of the judgment), according to which the father had cooperated in form only, failing to take any steps to encourage any contact between the child and the applicant. Currently, the applicant visits her child for only an hour per week (see paragraph 47) after the domestic courts granted custody to the father in the judgment of 20 June 2012 ... The Court dismissed the applicant’s complaints on the grounds that the Serbian authorities had done everything in their power to enforce the judicial decisions. More specifically, the majority of the Court reached this result by finding that: (a) the domestic courts had imposed fines on the child’s father; (b) the applicant had refused the use of forcible measures to get her son back; (c) contact between the applicant and her son had been restored gradually; (d) supervisory measures had been adopted to rebuild ties; and (e) the child wanted to remain with his father. To my regret, I am unable to agree with that solution. The Court’s case-law is well established regarding the positive obligation of States to reunite children with their parents by taking all necessary steps (see Ignaccolo-Zenide v. Romania , no. 31679/96, § 94, ECHR 2000-I, and Iglesias Gil and A.U.I. v. Spain , no. 56673/00, § 49, ECHR 2003-V). On that subject the Court has in the past noted that “the adequacy of the measures is to be judged by the swiftness of their implementation” (see Karadžić v. Croatia, no. 35030/04, § 62, 15 December 2005), with a view to avoiding the possible harmful effects that the passage of time can have on the relationship between the parent and the child (see H.N. v. Poland , no.   77710/01, § 73, 11 September 2005). Notwithstanding the margin of appreciation enjoyed by States, what is relevant is the suitability of the decisions carried out by national authorities when exercising their power of appreciation (see Hokkanen v. Finland , 23 September 1994, § 55, Series A no. 299-A). In my humble opinion, these procedural requirements have not been met on this occasion. It is true that the judge imposed two fines amounting to 1,000 euros (EUR) and EUR 1,500 on the applicant’s former husband. It can be said that these measures have failed. The fines were not dissuasive, as is shown by the fact that the father decided to pay them rather than making any effort to return the child to his mother, who actually had legal custody of him. Besides, the economic capabilities   of the father are not known to the Court. Regardless of this, the fines came very late (I deduce that the sums were paid, at the earliest, during the first half of 2010, whereas the order was supposed to be executed on 8 July 2008). Furthermore, despite the reluctance of the father to voluntarily execute the civil decisions adopted against him, the civil judge did not even consider initiating any criminal proceedings against him. By contrast, it was left to the applicant to institute criminal proceedings herself. The fact that the mother rejected the use of force (in her child’s interests) did not exempt the judge from fulfilling the positive obligations within the meaning of Articles 6 and 8. In the light of the non-voluntary execution of the judicial decisions by the father, it was the responsibility of the judge to properly exercise the functions emanating from his authority. However, he failed to intervene properly, as he had no personal involvement in the settlement of this conflict other than an unsuccessful journey to the child’s (and father’s) home (on 22 December 2008) and to the Social Care Centre’s premises (on 1 April 2009). A new forcible transfer was planned to take place on 9 March 2011. We do not know the details of that last unsuccessful attempt. It is relevant to highlight that during a period of two and a half years the Serbian authorities scheduled only three dates for delivering effective justice to the applicant. As for the argument concerning the gradual restoration of contact between mother and son, it lacks any convincing evidence. The Court’s judgment says that the Serbian authorities have done their best to execute the domestic court decisions in favour of the applicant. It turns out, however, that even the Serbian Ombudsman reminded the appropriate Social Care Centre officials “of their actual powers under domestic law and of measures that they could have envisaged to enable such a reunion” (see the report of 21 April 2011 communicating the application to the Government, paragraph 44). In the same vein, I consider that there has been a breach of Article 6 owing to the non-execution of enforceable judgments and the slowness that characterised the decision-making process in the present case. The majority of the Court consider that the overall length of the proceedings, almost three years, was due to their complexity as a result of the child’s refusal to live with the applicant (see paragraph 72 of the judgment). I take the opposite view, especially considering the nature of the family interests in conflict and the experts’ conclusions (see the Mental Care Institute’s report of 27 May 2009, mentioned in the report communicating the application) emphasising the psychological pressure exerted by the child’s father that made the statement by the infant pointless. Consequently, the dismissal of the applicant’s complaints amounts to legitimising the father’s wrongdoing, discrediting the authority of res judicata and, more importantly, penalising the child, all of which factors raise a serious question affecting the interpretation of the Convention. DISSENTING OPINION OF JUDGE SERGHIDES 1. With great respect to the majority I disagree with their finding that there has been no violation of Article 6 § 1 and Article 8 of the Convention in the present case, for the following reasons. 2. Under Article 6 § 1 and Article 8 of the Convention, especially read in conjunction with Article 1, the State has an inherent positive obligation to find ways and take all necessary preparatory, preventive, corrective or repressive steps or actions to enforce custody or access orders issued by its courts. Unlike any of the other provisions of the Convention that employ the terms “right” or “freedom”, Article 8 employs the phrase “right to respect” with regard to family relations. This is due to the nature of family relations, which makes them so important and at the same time so delicate and sensitive, and, which should therefore be treated accordingly by the State when exercising its inherent negative and positive obligations to protect the rights arising from or concerning these relations. As has been held in Iglesias Gil and A.U.I. v. Spain (no. 56673/00, § 48, ECHR 2003-V), there are positive obligations inherent under Article 8 “in an effective ‘respect’ for family life”, which are in addition to the essential object of this provision, namely to protect the individual against arbitrary actions by public authorities. 3. With regard to the above obligation, the majority pertinently remark in paragraph 62 of the judgment: “In relation to the State’s obligation to implement positive measures the Court has held that Article 8 includes for parents the right that steps be taken to reunite them with their children and an obligation on the national authorities to facilitate such reunions ...” Similarly, in Kosmopoulou v. Greece (no. 60457/00, § 44, 5 February 2004) the Court held: “As to the State’s obligation to take positive measures, the Court has repeatedly held that Article 8 includes a right for parents to have measures taken with a view to their being reunited with their children, and an obligation for the national authorities to take such measures. This applies not only to cases dealing with the compulsory taking of children into pub