CEDH · CASELAW;COMMUNICATEDCASES;ENG — 14 janvier 2014

.s800EAC49 { font-size:12pt } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s72EB7DC5 { margin-top:18pt; margin-bottom:0pt; text-align:center } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .sD53A5F9E { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; line-height:115% } .sB5688C0F { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid; line-height:115% } .s29100277 { font-family:Arial; font-weight:bold } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA56DF1A1 { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid; line-height:115% } .s45AE5F73 { font-family:Arial; letter-spacing:-0.15pt } .s6088A1B { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; line-height:115%; font-size:14pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .s6B505E72 { margin:0pt; padding-left:0pt } .s23C33D76 { margin-left:33.01pt; padding-left:2.99pt; font-family:Arial; font-weight:bold } .s3537C2D6 { font-weight:normal } .s3985515B { margin-top:0pt; margin-left:36pt; margin-bottom:0pt } Communicated on 14 January 2014   FIRST SECTION Application no. 56649/11 V.Z. and Others against the former Yugoslav Republic of Macedonia lodged on 2 September 2011 STATEMENT OF FACTS   A list of the applicants is set out in the appendix. A.     The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows. The first and second applicants are the parents of the third applicant, a daughter, who was born on 7 January 2004. On 16 January 2004 the first and second applicants concluded a “contract for the temporary care and maintenance of a newborn child” ( договор за привремена нега и чување на новороденче, hereinafter “the contract”) with a married couple from Skopje from whom a request for adoption had been pending before the S. Welfare Centre. The contract – which was certified by a notary public – stated, in so far as relevant: Article 2 “The parents are in a difficult social situation and are in receipt of a permanent social-care allowance from the K. Welfare Centre. They have nine children (including the newborn E.), of whom three are adults. They all live in the same house in the village P. in difficult living conditions, which have become worse over the winter and they are not able, in financial or practical terms, to provide proper care for the newborn child, especially since the conditions in winter and their place of residence – the village P. – have a detrimental effect on normal life. The village P., where the parents live, is situated in a mountainous region and because of this the parents are worried about the well-being of their family, especially the newborn child.” Article 3 “In view of the foregoing, the parents and carers ( згрижувачи ) ... agree that the parents hereby give their newborn child into the temporary care and maintenance of the carers until [the parents’] home becomes suitable for the proper care of the newborn child, or until she is adopted.” It appears that on 18 January 2004 the notary public annulled the contract. In a decision apparently delivered on 20 January 2004 (the decision states 20 April 2004 as the date of adoption), the K. Welfare Centre (“the Centre”) appointed J.C., a social worker employed in the Centre, as temporary guardian of the third applicant. In the decision, the Centre established that the first applicant had stated (during his visit to the Centre of 8 January 2004) that he and the second applicant could not take care of the third applicant. On 9 January 2004 both the first and second applicants had refused categorically to give up their daughter for adoption and had affirmed that they would take care of her. On 13 January 2004 experts from the Centre established that the applicants were not in their house in the village of P. and that the second and third applicants were staying in an apartment in K. The Centre further established that on the basis of the contract, the third applicant had been given into the temporary care of third parties “owing to the family’s difficult material situation”. In such circumstances, the Centre was of the view that the third applicant was left without parental care ( без родителска грижа ), which necessitated the appointment of a temporary guardian under sections 125, 159 and 160 of the Family Act (see “Relevant domestic law” below). By a separate decision apparently delivered on the same date, the third applicant was placed in the custody of the B. orphanage, where a year before – as stated in the decision – one of the children of the first and second applicants (a son) had been accommodated, with their consent. On 12 February 2004 the first and second applicants lodged an appeal against the custody order, which the Ministry of Labour and Social Police dismissed as ill-founded in a decision of 8 March 2004. No information was provided if the applicants challenged these decisions before the Supreme Court, which, at the time, had jurisdiction to review the legality of decisions of administrative bodies. 1.     Proceedings relating to divesting the first and second applicants of their parental rights On 21 January 2004 the Centre lodged an application with the K. Court of First Instance (“the first-instance court”) for the first and second applicants to be divested of their parental rights in respect of the third applicant. In the application, the Centre argued that the first and second applicants were in a difficult social situation, were in receipt of a permanent social-care allowance, were living in poor conditions and did “not have a domestic environment suitable for the care and maintenance of the newborn child”. The Centre further submitted that it had observed the applicants’ situation since the birth of the third applicant. In this context visits had been conducted by the Centre’s experts to the hospital and the applicants’ house. As submitted in the application: “...the fact that [the first and second applicants] had concluded [the contract] without the involvement of the Centre ... raises suspicions, and the fact that [they] gave [the third applicant] into the care of third parties, without the involvement [of the Centre], means that they have abused parental rights and seriously infringed parental obligations”. The first and second applicants were represented by a lawyer practising in K. On 30 March 2004 the first-instance court allowed the application and divested the first and second applicants of their parental rights in respect of the third applicant indefinitely, finding that they were incapable of taking care of her. The court stated that the first and second applicants had not acted responsibly in planning their family, which reflected their carelessness regarding all their children. The fact that the first and second applicants had given the third applicant into the care of third parties implied that they had no emotional link with her. The fact that they had consented to have their son, who was still a minor, placed in the B. orphanage confirmed that they were unable to establish an emotional bond with their children and that they did not care. Furthermore, they had been unable to take care of their daughter (the third applicant) and provide her with an education in future. In a judgment of 10 November 2004 the Š. Court of Appeal allowed an appeal by the first and second applicants and remitted the case to the lower court for a fresh examination. It ruled that the lower court had erred on the facts and had failed to provide reasons for its judgment. In particular, it had not assessed the first and second applicants’ arguments that they had been obliged to conclude the contract in the light of their impoverished situation at the time, the cold weather conditions, and the fact that they lived in an isolated and remote place. The lower court had also failed to consider whether their standard of living had improved, given the fact that the first applicant had found work in the meantime, that it had become warmer, and that the first and second applicants were, accordingly, able to take care of their minor child. On 11 May 2005, on the same grounds as before, the first-instance court divested the first and second applicant of their parental rights in respect of the third applicant. This judgment was again set aside by a judgment of the Š. Court of Appeal dated 21 October 2005. In the judgment, the court held that the first-instance court had disregarded the statements of J.C. and the first and second applicants, according to which they had on three occasions asked, through their representative, to have their custody of the third applicant reinstated, and to be able to see her while in the orphanage. All those requests had been to no avail. On 28 April 2006 the first-instance court dismissed the Centre’s application for the first and second applicants to be divested of their parental rights in respect of the third applicant. The court established that the first and second applicants had shown interest in their daughter and had tried, on several occasions, to visit her while in the orphanage, but that the Centre had not allowed any visits. It further held: “...the difficult situation and the fact that their large family had been living in poor conditions were decisive factors for the first and second applicants’ decision to conclude the contract. In [concluding] the contract it was crucial for them for their newborn child to be raised in conditions [necessary] for proper development. The contract, in Articles 2 and 3 provides that ... That has also been confirmed by [the carers specified in the contract] who stated that [the first and second applicants] had no other motivation in concluding the contract, that is to say that the only reason for entering into the contract was the difficult situation of the parents of the newborn child.” The court also dismissed the Centre’s arguments that the first and second applicants had not shown any interest in the child and that they had not asked to visit her in the orphanage. It also dismissed the claims that they had abused their parental rights by having transferred the care of the third applicant to third parties without the Centre’s involvement. In so ruling, the court held that the first and second applicants had concluded the contract in the interests of their daughter, so that she would receive proper care. Lastly, it concluded that the circumstances surrounding the first and second applicants had improved and that they would, accordingly, be able to take care of the third applicant. It appears that no appeal was lodged against that judgment. It became final on 2 June 2006. On 12 June 2006 the Centre suspended J.C.’s temporary guardianship of the third applicant, which – as stated in the decision – had been introduced (by a decision dated 20 January 2004) on account of “the irresponsible ( несовесно ) behaviour of the parents after (the child) was born”. The decision further stated: “After [the court’s judgment of 28 April 2006] had become final, [the Centre] established that ‘conditions had been created’ which permitted the discontinuation of the custody arrangements in respect of [the third applicant].” 2.     Compensation proceedings On 5 June 2006 the applicants brought a civil action against the State claiming compensation for non-pecuniary damage for emotional suffering and fear and violation of their family life and dignity as a result of stripping the first and second applicants of their custody rights in respect of the third applicant and depriving the third applicant of parental care for over two years. On 12 October 2006 the first-instance court accepted that the applicants’ claim also concerned the Centre. On 29 May 2009 the first-instance court dismissed the applicants’ claim, finding that they had not sustained any non-pecuniary damage. The court established that the third applicant had been housed in the orphanage between 20 January 2004 and 14 April 2006, that during that time the applicants had not seen each other, and that their family was dysfunctional (this was established on the basis of expert opinions drawn up by the Centre in the course of the civil proceedings relating to divesting the first and second applicants of their parental rights). In those circumstances, the court held that the placement of the third applicant in the orphanage had been based on valid decisions issued in accordance with the applicable rules and that there was no causal link between those decisions and any non-pecuniary damage. The court further ruled (on the basis of an opinion given by an expert commissioned by the court who had allegedly denied having had the requisite knowledge for such analysis) that the third applicant, because of her age, was unable to experience any emotional suffering or fear. On 14 December 2009 the Š. Court of Appeal dismissed an appeal by the applicants, finding that the Centre had appointed J.C. as guardian of the third applicant because the first and second applicants had not demonstrated any interest in her; that the Centre had placed the third applicant in the orphanage on the basis of its own psychological analysis; and that during her stay in the orphanage, her parents had not visited her. They had thus failed to demonstrate parental care. On 24 February 2011 the Supreme Court dismissed an appeal on points of law by the applicants, holding that the lower courts had correctly established that there had been no causal link between the impugned decisions of the Centre and the relevant Ministry and the alleged damage. According to the court: “the placement of the minor claimant in [the B. orphanage] was based on valid decisions issued in accordance with the applicable rules ...” 3.     Other relevant information On 25 February 2004 the K. public prosecutor’s office rejected a criminal complaint that the Ministry of the Interior had lodged against the first and second applicants and the carers specified in the contract on account of family-related offences. The public prosecutor held that the contract had no bearing on the family status of the third applicant because the family name and residence of her biological parents had been withheld. There had been no evidence that the persons specified in the contract would adopt the child: the contract specified only that they would take care of her until normal living conditions were restored in her biological parents’ house or until her adoption. It appears that no further action has been taken in respect of this complaint. B.     Relevant domestic law 1.     Family Act ( Закон за семејството, Official Gazette no. 80/92) Section 12 of the Family Act, as in force at the material time, provided for the appointment of a guardian by the State in order to protect minors lacking parental care. Section 90(1) provided that a court could, in non-contentious proceedings and at the request of a welfare centre, divest a person of his or her parental rights if he or she abused or seriously neglected parental responsibility, obligations and rights. Section 127 provided for an urgent procedure for placing a person in guardianship, which was to be instituted by the authorities of their own motion or at the request of an interested party. Under section 129, as soon as t he welfare centre learned about the circumstances requiring a guardianship order for a person, it would take all necessary measures to protect his or her rights and interests. It could also institute proceedings for placing that person under guardianship. In so doing, the welfare centre would aim to protect the interests of the person concerned and his or her family. Section 130(1) and (3) provided that the welfare centre was to determine guardianship-related matters in compliance with the General Administrative Proceedings Act. The welfare centre could amend its earlier decisions in accordance with the interests of the person under guardianship, provided that this would not affect the rights of third parties. Under section 159(1), a minor child without parental care would be placed under guardianship. Under subsection 2 of this paragraph, a minor child without parental care was a child whose parents had not carried out their parental rights and obligations, temporarily or indefinitely. Section 160 provided that the guardian was to bear responsibility for the person’s health, care and education. 2.     Non-Contentious Proceedings Act (Official Gazette no. 19/1979) Under section 21 of the Non-Contentious Proceedings Act, as in force at the material time, an appeal could be lodged against a first-instance judgment within eight days of the date of its service. Section 22 provided that the appeal suspended the enforcement of the judgment, unless otherwise specified by law. Under section 33(1), the rules specified in the Civil Proceedings Act likewise applied to non-contentious proceedings. Sections 106-111 concerned proceedings relating to divesting a person of his or her parental rights. As specified in those provisions, a court would decide, on the basis of a request by the competent welfare centre, whether there were reasons for divesting a person of his or her parental rights. The parent concerned could lodge an appeal against the court judgment divesting him or her of parental rights. The final judgment divesting a person of parental rights was to be sent to the competent authority so that it could be recorded in the register of births. 3.     Obligations Act 2001 Section 141 of the Obligations Act provides for the right to claim civil compensation. Under section 189, the court can award non-pecuniary damages for a violation of human rights and freedoms. COMPLAINT The applicants complain that the State authorities violated their rights under Article 8 of the Convention given the fact that pending the conclusion of the administrative proceedings (regarding the custody order) and judicial proceedings (relating to divesting the first and second applicants of their parental rights), the third applicant was placed in the B. orphanage and they were therefore prevented from living together.   QUESTIONs TO THE PARTIES 1 .Was the compensation claim used by the applicants effective remedy within the meaning of Article 35 § 1 of the Convention in respect to their grievances under Article 8 of the Convention? Was there any remedy that the applicants could have used before the administrative/ judicial authorities in order to vindicate their rights under Article 8 of the Convention? The parties are invited to provide copies of any such remedies used (eventually) in the present case or in similar cases.   2. Has there been a violation of the applicants’ right to respect for their private and family life, contrary to Article 8 of the Convention?   Appendix   Mr V.Z. (“the first applicant”) born on 12 December 1965 is a Macedonian national, lives in K. and is represented by B. Risteska (“the first applicant”).   Mrs V.Z. (“the second applicant”) born on 1 September 1964 is a Macedonian national, lives in K. and is represented by B. Risteska.   Ms E.Z. (“the third applicant”) born on 7 January 2004 is a Macedonian national, lives in K. and is represented by B.Risteska.