No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly)

Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Pere Pastor Vilanova

The applicant was born in 1992 and lives in Lobnya, Moscow Region.

The background facts relating to the planning, conduct and dispersal of the demonstration at Bolotnaya Square are set out in more detail in Frumkin v. Russia (no. 74568/12, §§ 7-65, 5 January 2016), and Yaroslav Belousov v. Russia (nos. 2653/13 and 60980/14, §§ 7-33, 4 October 2016). The parties’ submissions on the circumstances directly relevant to the present case are set out below.

On 6 May 2012 a public demonstration entitled the “March of Millions” was held in central Moscow to protest against the allegedly rigged presidential elections. The event had been approved by the city authorities in the form of a march followed by a meeting at Bolotnaya Square which was supposed to end at 7.30 p.m. The march was peaceful and held without any disruptions, but when the marchers arrived at Bolotnaya Square it transpired that barriers installed by the police had narrowed the entrance to the meeting venue, allegedly restricting the space allocated for the meeting. To control the crowd, a police cordon forced the protestors to remain within the barriers, and there were numerous clashes between the police and protesters. At 5.30 p.m. the police ordered that the meeting finish early and began to disperse the participants. It took them about two hours to clear the protestors from the square.

On the same day the Moscow city department of the Investigative Committee of the Russian Federation opened criminal proceedings to investigate suspected acts of mass disorder and violence against the police (Articles 212 § 2 and 318 § 1 of the Criminal Code). On 18 May 2012 the file was transferred to the headquarters of the Investigative Committee for further investigation. On 28 May 2012 an investigation was also launched into the criminal offence of organising acts of mass disorder (Article 212 § 1 of the Criminal Code). The two criminal cases were joined on the same day.

At the time of the events the applicant was a first-year student at the faculty of culture studies of the State Academic University for the Humanities. On 6 May 2012 he took part in the demonstration at Bolotnaya Square. According to him, he was beaten up by the police as they were dispersing the demonstration.

At 4 a.m. on 7 May 2012 the applicant was admitted to the emergency ward of Sklifosovskiy hospital where he was examined by a trauma doctor and a neurosurgeon. The examination revealed multiple bruises on the applicant’s chest, spine, shoulders, knees and head.

After the events of 6 May 2012 the applicant continued to live at his usual address and pursue his studies. On 9 June 2012 he was arrested on suspicion of having participated in acts of mass disorder and of using violence against the police during the demonstration of 6 May 2012. On the same day the Basmannyy District Court of Moscow ordered the applicant’s pre-trial detention until 9 August 2012. It referred to the gravity of the charges and information about the applicant’s personality. The District Court noted, in particular, that the applicant’s father was a Ukrainian national living in Ukraine, and that the applicant might therefore flee to avoid the investigation and trial. It concluded that those circumstances gave sufficient reasons to believe that the applicant, if he were at liberty, was likely to continue his criminal activity, influence witnesses, destroy evidence or otherwise obstruct the investigation of the criminal case, which was at an initial stage.

On 18 June 2012 charges were brought against the applicant under Articles 212 § 2 (participation in acts of mass disorder accompanied by violence) and 318 § 1 of the Criminal Code (use of violence against a public official). He was accused, in particular, of having torn a protection helmet off a police officer’s head.

On 11 July 2012 the Moscow City Court upheld the detention order of 9 June 2012.

On 7 August 2012 the Basmannyy District Court of Moscow examined an investigator’s request for an extension of the applicant’s pretrial detention. The applicant requested that an alternative preventive measure be applied pending trial, such as house arrest or a written undertaking not to leave a specified place. On the same day the District Court found that the circumstances that had justified the detention order had not changed and extended the applicant’s detention until 6 November 2012. On 5 September 2012 the Moscow City Court upheld that decision.

On 2 November 2012 the Basmannyy District Court authorised a further extension of the applicant’s detention until 6 March 2013. It reiterated the grounds given in the previous extension orders and stated that the circumstances justifying the detention order had not changed. On 3 December 2012 the Moscow City Court upheld that decision.

On 21 November 2012 the charges against the applicant were reformulated. It was additionally stated that the applicant had shouted insulting slogans and used metal barriers to obstruct the police; that at least three times he had thrown stones and pieces of tarmac at police officers and had once punched a policeman; and that he had also grabbed a police officer’s uniform and had snatched a protection helmet from his hands.

On 29 November 2012 Police Officer P. identified the applicant during an identification parade as a participant in the mass disorder and the person who had twice thrown pieces of tarmac at the police and tried to snatch the protection helmet from a policeman’s hands. He specified that he had not seen whether the applicant had in fact succeeded in snatching the helmet or not.

On 7 December 2012 the investigator of the Zamoskvoretskiy Interdistrict Investigation Committee of Moscow refused to open a criminal case into allegations made by the applicant that he had been subjected to illtreatment by the police during his arrest. The investigator considered that the use of force by the police had been justified by the behaviour of the protesters, including the applicant, who had actively resisted their arrest and thrown various objects at the police officers.

On 27 February 2013 the Basmannyy District Court granted an extension of the applicant’s detention until 9 June 2013, essentially on the same grounds as earlier, noting that the applicant’s state of health was satisfactory and did not warrant his release. That decision was upheld by the Moscow City Court on 27 March 2013.

On 22 April 2013 the Moscow City Court authorised a further extension of the applicant’s pre-trial detention until 6 July 2013. The court noted that even though the applicant and his lawyer had already finished reading the case file, other defendants had not. It reiterated the grounds given in the previous extension orders and stated that the circumstances justifying the detention order had not changed.

On 24 May 2013 the applicant’s criminal case was transferred to the Zamoskvoretskiy District Court of Moscow for the determination of criminal charges.

On 6 June 2013 that court granted another extension of the applicant’s detention until 24 November 2013. The decision concerned eleven defendants. Along with the gravity of the charges, the court based its decision on the findings that “the reasons which initially warranted the detention have not changed” and that “no other measures of restraint would secure the aims and goals of the judicial proceedings”. The Moscow City Court upheld that extension order on 2 July 2013.

On 19 November 2013 the Zamoskvoretskiy District Court examined an investigator’s request for an extension of detention in respect of nine defendants, including the applicant. The applicant presented a personal guarantee from a member of the State Duma in support of an undertaking by him to appear before the investigating authorities and the courts for the examination of his case. However, the District Court did not consider that guarantee and ordered that the applicant and his co-defendants be detained until 24 February 2014 on the grounds of gravity of the charges and the nature of the offences imputable to them. On 17 December 2013 the Moscow City Court upheld that extension order.

From 20 June 2012 until his conviction the applicant was held in remand prison IZ-77/5 in Moscow. There he was detained in cells no. 403 (until 20 May 2013, then from 27 May 2013 to 19 June 2013, and from 29 June 2013 to January 2014), no. 12 (until 25 May 2013), no. 317 (until 27 May 2013), and no. 4 (until 29 June 2013).

The cells had the following characteristics:

- cell no. 403: 40 sq. m. and ten sleeping places;

- cell no. 12: 6.1 sq. m. and one sleeping place;

- cell no. 317: 32.9 sq. m. and eight sleeping places;

- cell no. 4: 48 sq. m. and twelve sleeping places.

The parties agreed that the number of inmates in the cells had not exceeded the design capacity. They also agreed that the size of the cells and the number of detainees had allowed the applicant four square metres of personal space and that the applicant had had an individual sleeping place in every cell.

The parties provided the following accounts of the conditions in the cells. According to the applicant, prison cell no. 403 measured approximately 7 by 5 metres and housed ten inmates, including himself. The cell was inadequately lit and ventilated, was excessively hot in the summer and cold in the winter. The windows were too high to give sufficient light for reading or working with documents. A shower was allowed once a week and the lavatory pan was separated from the living space only by a plastic partition. The bed linen was old, and the beds were small for a man of his height. Outdoor exercise was limited to one hour per day.

According to the Government, all of the cells had sanitary units with wash stands and the necessary furniture. The cells were equipped with ventilation, heating and lighting; the state of the sanitary facilities had been satisfactory; the bedding had been changed once a week; and the cells had been disinfected and subjected to pest control regularly. The applicant had been able to shower once a week and entitled to one hour of outdoor exercise per day.

The applicant’s description of the conditions of detention during his transfer from the remand prison to court and back, and the Government’s submissions in that regard, were identical to those in the case of Yaroslav Belousov (cited above, §§ 69-73).

As regards the conditions of detention in the holding room of the Moscow City Court, the applicant submitted that the room had been poorly lit and that access to a toilet had been limited to once an hour. In addition, he had been required to strip naked and to perform sit-ups during the body search conducted in the holding room.

The court proceedings began on 6 June 2013 in hearing room no. 338 at the Moscow City Court, moving at the end of July 2013 to hearing room no. 635. The defendants, including the applicant, were held in glass cabins in both hearing rooms. From mid-September 2013 to the end of 2013 the hearings continued in hearing room no. 303 at the Nikulinskiy District Court of Moscow. In January and February 2014 they took place in hearing room no. 410 at the Zamoskvoretskiy District Court. Those hearing rooms were equipped with metal cages in which nine defendants (eight from 19 December 2013), including the applicant, sat during the hearings.

For a detailed description of the conditions in those hearing rooms, see Yaroslav Belousov (cited above, §§ 74-77).

On 6 June 2013 the Zamoskvoretskiy District Court of Moscow began a preliminary hearing in a criminal case against ten participants in the demonstration at Bolotnaya Square, who were charged with participating in acts of mass disorder and committing acts of violence against police officers. On 18 June 2013 the same court began the trial on the merits.

On an unspecified date Police Officer T., the alleged victim of the applicant’s assault, was examined as a witness. He testified that at some point he had been surrounded by the crowd and subjected to violence. T. stated that the applicant had tried to snatch the protection helmet from his hands. Another officer, M., also questioned as a witness, stated that the applicant had shouted something and thrown a stone or a piece of tarmac at a policeman.

On 21 February 2014 the Zamoskvoretskiy District Court found the applicant guilty as charged. It held, in particular, as follows:

“Between 4 p.m. and 8 p.m. on 6 May 2012 ... at Bolotnaya Square ... unidentified persons ... called those present [at the venue] to move outside the agreed meeting venue, to defy the lawful orders of the police ..., to use violence ... which led to mass disorder accompanied by the use of violence against public officials in connection with the performance of their duties [and] the destruction of property.

On the same day at 5 p.m. at the latest [the defendants] acquired the criminal intent to participate in mass disorder and to use violence against ... police officers ...

Moreover ... the participants of the acts of mass disorder threw pieces of tarmac, stones, sticks and other objects at the police ... which hit them on various parts of their body, and [the defendants] ... [who] participated in the acts of mass disorder ... implemented their criminal intent to use violence against public officials ... applied physical force which was not a danger to the life or health of those [officials] ...

Between 5.05 p.m. and 10 p.m. [the applicant] ... shouted insulting slogans and used metal barriers to block the police’s movement ... thus preventing the arrest of the participants in the acts of mass disorder ... [The applicant], acting intentionally, at least three times threw stones and pieces of tarmac at police officers in a targeted manner ... and used violence against an unidentified police officer which did not endanger his life or health ... unidentified participants in the acts of mass disorder, acting intentionally, tore a protection helmet off an unidentified police officer’s head and punched and kicked him several times in the head and body, meanwhile [the applicant] ... punched this police officer at least once.

[The applicant] ... used violence against Police Officer T. which did not endanger his life or health ...

... unidentified participants of the acts of mass disorder intentionally tore off [T.’s] protection helmet, which [T.] continued to hold in his hands, and punched him in the head and body, whereupon [the applicant] intentionally grabbed [T.’s] uniform and ... snatched the helmet from his hands.

[The applicant] pleaded not guilty and testified that ... he had decided to attend the public gathering on 6 May 2012 ... When leaving the Malyy Kamennyy Bridge [the applicant] saw a lot of police officers equipped with bullet-proof vests, helmets and truncheons, which filled him with indignation. As nothing was happening on the stage, [the applicant] decided to return ... when leaving the venue he saw the police officers randomly arresting people while hitting them with truncheons ... [The applicant] was hit in the back three times with a truncheon. When he saw these violent acts by the police, [the applicant] approached the barriers where other protestors were standing and expressed his indignation ... Then ... he tried to leave the venue ... when somebody tore off his shirt. ... At some point [the applicant] came across police officer [T.] ... who was not wearing any helmet. [The applicant] tried to leave, but suddenly police officers ran up to him and started to beat him in the head and body, then they arrested him and ... took him to a police vehicle. [The applicant] insisted that he had committed no acts in respect of police officer [T.], had not seen his helmet and had snatched nothing from his hands.

... the court considers the [defendants’] arguments that they were protecting somebody from police officers or happened to be victims of the police’s use of force as farfetched and aimed at mitigating their responsibility ...”

The applicant was sentenced to three years and six months’ imprisonment, calculated on the basis of a three-year prison term under Article 212 § 2 of the Criminal Code, partly concurrent with a term of one year under Article 318 § 1. The applicant’s pre-trial detention counted towards the prison sentence.

The applicant appealed. He complained, in particular, that he had not used metal barriers to block the police’s movement and insisted that he had been standing close to those barriers before the protestors had started to be arrested. The applicant also pointed out that the video records proved that he had not taken T.’s helmet and had not used violence against him. In his opinion, the first-instance court had not assessed his statements about illtreatment by the police.

On 20 June 2014 the Moscow City Court upheld the first-instance judgment.

The applicant was represented by a lawyer, Mr D., throughout the criminal proceedings at domestic level. On 11 January 2013 Mr D. sent the Court an introductory letter containing the outline of the applicant’s complaints of ill-treatment by the police on 6 May 2012 and of unjustified pre-trial detention.

On 24 January 2013 the Registry of the Court acknowledged receipt of the introductory letter, registered under application no. 6312/13. The applicant was invited to return the completed application form within eight weeks of receipt of the Court’s letter but no later than 21 March 2013. As no further correspondence had been received from the applicant, on 28 August 2013 the Registry of the Court asked him whether he was still being represented by Mr D. and reminded him to return the completed application form.

On 18 September 2013 the Court received the completed application form, signed by a different lawyer, Mr Agranovskiy. It contained complaints about the conditions of detention in the remand prison, in the courtroom and during transfers to and from the prison, and of unjustified pre-trial detention.


Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Positive obligations);No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life;Respect for private life);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage)

Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

I. THE CIRCUMSTANCES OF THE CASE

A. Background to the case

The applicants were born in 1976 (the second applicant) and 2001 (the first applicant) respectively and live in Zadar.

On 23 June 2001 the second applicant married Mr I.M.

On 4 September 2001 the second applicant gave birth to the first applicant.

Relations between the spouses deteriorated, and in 2006 the second applicant brought a civil action against her husband seeking divorce, custody of, and maintenance for the first applicant. Her husband I.M. filed a counterclaim, seeking custody of the first applicant.

In the period between 5 July 2006 and 7 March 2008 a total of eight criminal complaints were filed against the second applicant and I.M. Most of these complaints were filed against each other directly, but some were filed at the initiative of the police. Three of those eight complaints resulted in criminal proceedings being instituted (two against I.M. and one against both I.M. and the second applicant), the outcome of which is unknown. The remaining five criminal complaints were dismissed, including three in which it was alleged that criminal offences of child abuse and domestic violence had been committed against the first applicant.

By a judgment of 24 August 2007 the Zadar Municipal Court (Općinski sud u Zadru): (a) granted the second applicant and I.M. a divorce; (b) awarded I.M. custody of the first applicant; (c) granted the second applicant access (contact) rights; and (d) ordered the second applicant to make regular maintenance payments for the first applicant. In so deciding the court relied on the opinion of forensic experts in psychology and psychiatry obtained during the proceedings and on the recommendation of the Zadar Social Welfare Centre (Centar za socijalnu skrb Zadar, hereafter “the local social welfare centre”) which participated in those proceedings as an intervener sui generis with a view to protecting the first applicant’s interests. The judgment became final on 2 January 2008.

Previously, by a decision of 7 November 2006 the local social welfare centre had ordered a child protection measure of supervision of the exercise of parental authority in respect of the first applicant. The measure was imposed with a view to improving communication between the second applicant and I.M. regarding the first applicant, and also with a view to preventing her from being drawn into their conflict. The measure lasted until 31 August 2008, when it was discontinued. In its decision of 2 September 2008 the local social welfare centre stated, inter alia, the following:

“The measure only partly achieved its goal, in that contact with the mother has stabilised. The parents still do not communicate with each other and it is evident that the mother intends to continue with such behaviour. Furthermore, the mother’s cooperation with the supervising officer is not adequate and it is evident that the measure has become futile.”

The applicants submit that on 1 February 2011 the first applicant’s father I.M. hit her in the face and squeezed her throat while verbally abusing her.

The next day the second applicant took the first applicant to the police to report the incident. The police instructed them to see a doctor and accompanied them to the local hospital, where the first applicant was examined by an ophthalmologist, who diagnosed her with bruising of the eyeball and eye socket tissue. In particular, the ophthalmologist noted:

“Clinically discrete haematoma of the left lower eyelid, in resorption. The motility of the eyes is normal, no diplopia [double vision], no clinical signs of orbit fracture.

Pupils are normal, lenses [are] in place, transparent, fundus [is] normal on both sides.

Dg.: Contusio oc.sin.

Haematoma palp.inf.oc.sin.

Treatment: cold wraps [compresses] ... Into the eye: Effludimex sol ...

Dg:

S05.1. Bruising of the eyeball and the eye socket tissue”

After examining the first applicant the ophthalmologist filled in a standard form to be submitted to the police, in which he indicated that the injury had been inflicted by a hard blow to the left eye, gave bruising of the left eyelid (haematoma palp.inf.oc.sin.) as his diagnosis, and described the injury as light.

The applicants then returned to the police, where they both gave statements. In her statement the first applicant mentioned other instances of physical and psychological violence by her father in the past three years. The relevant part of the police record of the interview conducted with the first applicant reads as follows:

“This interview was conducted regarding the violent behaviour of the [child’s] father I.M.

[The child] stated that yesterday around 4 p.m., when she was getting ready to visit her mother D.M., she wanted to take a picture frame containing a lock of her hair which her mum had had framed when she had had her first haircut. She put the picture frame underneath her jacket because she knew that her dad would not allow her to take that picture frame to her mum. Then his girlfriend I.P. saw that she had something under her jacket and asked what it was. She replied that it was nothing. Then her father came and took the picture frame from under her jacket and told her that they would talk about it when she came home in the evening.

... In the evening, around 8 p.m., mum took her back to her dad, who brought her into the room and called her a thief, hit her with his hand on the left eye, and started squeezing her neck and pushing her. During this she fell, but did not hurt herself because she fell on a bag which was on the floor. Then she vomited saliva because she felt nauseous from her father’s squeezing her neck. Then [her father’s partner] I.P. came and told her father to calm down, otherwise she [the first applicant] would vomit ... He then left and sat in the living room. She was very afraid and was crying, but nevertheless went to her room and did her homework for the next day. When she woke up in the morning she greeted her father with ‘good morning’ but he did not even look at her and just turned his head away. In the morning she felt slight pain under the left eye where her father had hit her. When she arrived at school she mentioned it to her teacher and her friends P. and A., because she felt the need to confide in someone.

Today she went to her mum and told her everything that happened that evening. She was also very hurt when her dad rudely [swore at] her. He often does that, and did so [also] yesterday evening. He also called her a ‘cow’ and told her she was stupid. Because of his rude language she cried a lot thereafter. Dad tells her from time to time [to go to hell] and she does not like swearing, especially when he mentions her mum while doing so. A few months ago the father told her that through his friends he would ensure that she never heard from or saw her mum. She is therefore very afraid of her dad because he can be dangerous. She had seen her dad beating her mum and was therefore afraid that he might beat her the same way too. She states that her father is often rude to her, yelling at her, forcing her to eat food she does not like, and when she does not, grabs her chin and shoves the food into her mouth, which makes her feel sick. He often takes away her mobile phone so she cannot call her mum, and she would like to be in contact with her mum. Once he hit her on the leg with a hairbrush when she would not allow him to brush her hair. He also grabs her arm and squeezes it so hard that she has bruises afterwards. She states that she is very afraid of her dad and would like to live with her mum. Tonight she definitely does not want to go with her father but wants to stay with her mum. She is afraid that her father will beat her and yell at her. He often threatens her by waving his hand at her and saying ‘look at it, look at it’, with the intention of hitting her if she does not listen to him. The father also threatens to cut off her hair, knowing that she likes [her] long hair. He threatens her with that when she is crying for her mum, bites her fingernails or asks for a mobile phone. Dad often tells her that she must not love her [maternal] grandmother, [her mother’s partner] N. or his mum, whereas she loves them all.

She further states that each time her mum or [her mother’s new partner] N. buys her something and she brings it to her father’s home he throws all those things into the rubbish. Therefore, she wears the things her mum bought her only when she goes to her mum’s place, as she is not allowed to wear them when she is at her dad’s home.

Lastly, she states that she is very afraid of her dad and [particularly] ... that he might do something bad to her mum, because he constantly threatens to do so.

The interview was conducted in the presence of a social worker from the Zadar Social Welfare Centre V.C.”

The same day the police interviewed I.M. and his partner I.P. The relevant part of the police record of the interview conducted with I.M. reads as follows:

“The interview was conducted in the presence of his advocate B.Z., regarding the complaint that he had hit his minor daughter ... In that connection he stated the following:

[He says that his former wife] does not regularly pay maintenance for [their] daughter ... amounting to 800 Croatian kunas (HRK) per month and up to the present day owes [him] HRK 15,000.

[He submits that], sadly, [his former wife] manipulates their daughter ... and uses her so that she rejects everything that bears [his] surname. She even created a Facebook page for her under ... the surname of her current partner ...

As regards his relationship with his daughter ..., [he] states that he, as a parent who wants to teach his child to respect work and discipline, has his duties, and that the child has to have certain discipline, [for example] she must not lie to her parents, and may not do whatever she pleases. When [his daughter] comes back from school ... he requires her to do her homework and study. As regards food, [he] states that he wishes [his daughter] to eat healthy and varied food, with fruit and vegetables, rice and meat, and that she does not only eat pizzas, sandwiches and sweets. He also does not like to throw away food and prefers that it is eaten.

On 1 February 2011 around 3.50 p.m. [his daughter] was preparing to go to her mother and came into the kitchen to say goodbye. On that occasion [his partner] I.P. noticed that she had something under her jacket ... and asked what it was. [The daughter] replied that it was nothing, even though there was visibly something underneath it. He asked her to open her jacket. [Then they realised] that she had taken a glass picture frame containing the locks of her hair cut off when she was still a baby. [He] then asked her why she had not asked to take it instead of doing it the way she did, stealing from her own house. [The daughter] said that it was for her mum and that if she had asked him if she could take it he would not have allowed it. Then he told her to go to her mum and that they would talk about it later, when she came home.

[The daughter] came home at 8 p.m. and they continued their conversation because he wanted to tell her that what she had done was bad and that she should have asked instead of stealing things from the house and taking them to her mother. [His daughter] replied that she wanted [the picture frame] to be at her mother’s place. [He] then reprimanded her for lying to him, saying that what she had done was sad or bad and that she always had to tell the truth because he did not tolerate lies and that all problems would be solved the way they had been solved so far. He admits that he is sometimes a strict parent but that he always behaves in a measured way and with [good] reason, and it is only ever exclusively done with a view to making her behave [better].

Today, on 2 February 2011 [his daughter] was at school in the morning and in the afternoon was having fun with [him] and his [partner] ... Nothing suggested that [she] was in any way distressed by the previous evening’s events.

[He] emphasises that all this was fabricated by her mother ... who has a negative influence on [their daughter].”

The relevant part of the police record of the interview conducted with I.M.’s partner I.P. reads as follows:

“The interview was conducted regarding a complaint that I.M. had hit his minor daughter ... In that connection she stated the following:

On 1 February 2011 around 3.50 p.m. [her stepdaughter] was preparing to go to her mother and came into the kitchen to say goodbye to them. On that occasion [I.P.] noticed that she had something under her jacket ... and asked her what it was. [Her stepdaughter] replied that it was nothing, even though there was visibly something underneath her jacket. I.M. asked her to open her jacket. [Then they realised] that she had taken a glass picture frame containing locks of her hair cut off when she was a baby. [He] then asked [his daughter] why she had not asked to take it instead of doing it the way she did, stealing from her own house. [The stepdaughter] said that it was for her mum, and that if she had asked him for it he would not have allowed it. Then he told her to go to her mum and that they would talk about it later, when she came home.

[The stepdaughter] came home at 8 p.m. and she and her father continued their conversation, because he wanted to tell her that what she had done was bad and that she should have asked instead of stealing things from the house and taking them to her mother. [The stepdaughter] replied that she wanted [the picture frame] to be at her mother’s place. I.M. then reprimanded her for lying to him, by saying that what she had done was sad or bad and that she always had to tell the truth because he did not tolerate lies and that all problems would be solved the way they had been solved so far. I.P. firmly states that on that occasion I.M. did not hit [his daughter], nor has she ever seen him hitting [her]. She says that I.M. has a temper and sometimes shouts when he considers that something is wrong, but that he is really not prone to physical violence or hitting the children. I.P. notes that [her stepdaughter] is generally very sensitive about her mother and immediately starts crying as regards anything related to her.”

After the interviews, the first applicant was returned to her father I.M., following the intervention of an employee of the local social welfare centre.

On 19 February 2011 the first applicant was, at the initiative of the second applicant, examined by a psychiatrist at the Psychiatric Hospital for Children and Young People in Zagreb. The relevant part of the psychiatrist’s observations reads as follows:

“The child was with the mother at the police station and reported the incident [of 1 February 2011] because the mother, and also the child, claim that this was not the first time that the father has mistreated [the child], although not so much physically as psychologically ...

During the interview with the girl it is evident that the child gets very upset at the mention of the father, she is afraid of him, ‘constantly thinks that he will hit her again and would like to stay with mum’. Dad is allegedly constantly threatening that he will ‘cut off her hair if she keeps crying and mentioning mum ...’ he often swears and utters vulgar expressions against the mother;all this was allegedly reported to the police ... (the interview was conducted first with the mother alone and then with the girl, also alone; [the child] talks about it all through tears and while biting her fingernails) ....

The girl says that she remembers that ‘she was asked when she was little with whom she wished to live and that she said with dad because she was told that she had to say that, now she regrets it’ (she is crying all the time).

The girl otherwise appears to have good intellectual capacity; she functions well outside the family, and is an A-grade pupil. There are no signs of psychotic disorder, and the girl is emphatic in contact except when she gets upset and talks rapidly when the topic of the father and his relationship with her is raised (thus there is an impression of strong fear of the father).

Given the complexity of the family situation (the father has remarried and [the child] lives with him, his new wife, her daughter from her first marriage and two small half-sisters, while the mother also has a new partner with whom she has a small son) and the evident traumatisation of the child which has probably already lasted a long time, a psychiatric assessment of the child is recommended.

Until then ... I recommend taking the girl to a psychologist ...

Dg. Abused child, T 74.8”

On 5 March 2011 the second applicant took the first applicant to a psychologist in Zagreb, who, inter alia, made the following observations:

“The interviews, which were conducted with the mother alone and separately with the girl, indicate that the child is afraid of her father because he psychologically and sometimes physically abuses her ...

The girl ... says that she would gladly live with mum if she could, and that dad speaks badly of mum ...

The results show that [the child] is emotionally attached to her mum and thinks that her dad does not love her, is afraid of him, does not trust him, and thinks that it is not fair that dad constantly yells at her even when she is not at fault. Her biggest wish is to live with her mum and her family, and she finds it difficult to return to her dad’s home. She identifies with her mother and thinks that they are very much alike.

Findings: [The girl] is a traumatised child with well above-average mental abilities, strong self-control, neuroticism, depressive affect, hypersensitive, anxious with strong inferiority complex. Discrete tremor is diagnosed.

I recommend psychological and, if need be, psychiatric counselling.”

On 30 March 2011 the Zadar Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Zadru, hereafter “the State Attorney”) informed the second applicant that on the same day it had, concerning the incident of 1 February 2011, indicted I.M. before the Zadar Municipal Court for the criminal offence of bodily injury defined in Article 98 of the Criminal Code (for a more detailed description of the course of those proceedings see paragraphs 35-51 below).

On the same day, 30 March 2011, the second applicant instituted civil proceedings before the Zadar Municipal Court seeking reversal of the custody arrangements set forth in that court’s judgment of 24 August 2007 (see paragraph 10 above; for a more detailed description of the course of those proceedings see paragraphs 60-81 below).

On 22 April 2011 the second applicant took the first applicant back to the same psychologist (see paragraph 20 above). The psychiatrist made the following observations:

“... The interview with [the child] was conducted without her mother’s presence.

In contact silent, with depressive affect, cooperative, bites her fingernails, occasionally cries. We again had a conversation about the events of 1 February 2011 during which the child was psychologically and physically abused by her father, and which she in her mother’s presence reported to the police.

[The child] says that that was not an isolated incident and that she is afraid of her father because she has continuously, from the moment she started living with him, been exposed to psychological and, from time to time, also physical abuse. She says that on multiple occasions he has threatened that he would hit her if she kept biting her fingernails and that he would take her mobile phone away. Previously she was more afraid of her father’s physical violence than now, but her mother encourages her by telling her not to be afraid and to ‘endure difficult moments’. The child states that she does not like living with her father because he threatens her and tells her that he will beat her. She says that mum loves her more, does not threaten her and is good to her. She uses suppression and ‘forgetting’ as defence mechanisms ...

The child states that the father yells at her almost every day, swears, tells her that she is a ‘stupid cow, pig, goat, thief, that she constantly defies him’. She says that this offensive behaviour by her father is rarer since she reported him to the police.

[The child] says that the father has threatened her that he will, through ‘his people’, take care that she does not hear from or see her mother. He threatens her that he will cut off her hair if she cries for her mother.

The child alleges that her father forces her to eat so that she has to eat everything he puts on her plate and that she sometimes vomits because of that. If she refuses to eat everything the father holds her chin and ‘shoves’ the food in her mouth. If she resists, he smears the food over her face.

After she reported him to the police, the father controlled himself for a couple of days, and then again started yelling but then to a lesser degree. He no longer shoves food in her mouth, but she has to eat everything he puts on her plate. Sometimes she has to eat something that she does not like, which the mother never does to her.

[The child] is lonely at her father’s home, because she spends time only with her half-sisters; her friends are not allowed to visit in case [the younger half-sister] gets sick. After school the father allows her to meet with friends for half an hour only. She visited one of her friends only once and she did not dare to ask the father for more visits. She thinks that her father is stricter with her than with her older half-sister.

I found out that the father speaks badly of the mother and her new partner in front of the child, that she has different clothes at her mother’s and her father’s places, and that the father threw the sneakers she got as a birthday present from her mother and her partner into the rubbish.

Asked about her father’s wife, she says that she is better to her than her father: does not force her to eat, has never hit her, helps her with homework, and brushes her hair.

The child shows a strong desire to live with her mother because she is emotionally closer to her, and because the mother supports her in difficult moments. She has many friends in her mother’s neighbourhood and is encouraged to spend time with them; she has fun and feels safe with her mother. Asked about [the behaviour of] her mother’s partner towards her, the child says he is good to her and tries to cheer her up, buys her presents, and is fun and pleasant to talk to.

To the question whether, if she were to live with her mother, she would be allowed to see her father outside the visiting schedule ordered by the court, she says that it is certain that her mum would allow her to see her father whenever she wished to and states that ‘she would like to move to her mum’s [place] right away and forever’.

Findings and recommendations: In order to prevent the development of irreversible psychopathological consequences due to continuous abuse, it is recommended that the child be immediately removed from the family where she currently lives and that custody be awarded to the mother.

Psychological and if need be, psychiatric follow-up is also recommended.”

On 4 May 2011 the second applicant again took the first applicant to the police to report another instance of abuse by her father, who had allegedly pressured her to change her earlier statements made before the police and the experts. The relevant part of the police record of the interview conducted with the first applicant on that occasion reads as follows:

“This interview was conducted regarding inappropriate behaviour of the [child’s] father I.M.

[The child] stated that a couple of days ago her dad’s girlfriend I. asked her whether she had visited a certain lady in Zagreb with her mum. She had replied that she had, whereupon I. had asked her what she had talked about with that lady in Zagreb and why she had not said anything about [it] to her dad. She replied that she had forgotten to mention it. After that her father had called her on her mobile phone and asked her to come to his café ... immediately. When she had arrived there he had started yelling at her and asking why she had been saying bad things about him and why she had not told him that she had been in Zagreb ... After that he had told her that she was lying like a dog and told her to get out of his sight.

... Afterwards her dad had kept asking her whether she really wanted to live with her mum and she always replied that she did. A couple of days ago he had told her that she would not live with her mum until she was eighteen years old.

[The child] also states that he said that he would report her mum for taking her to a doctor in Zagreb, and that she [the mother] would receive a criminal complaint for [having done] that. He [also] told her that he would now take her to a psychologist and to some other people where she would have to say that he had not hit her and that he was good to her.

Today he had again asked her whether she really wanted to live with her mum and she had again replied to him that she did want to live with her mum.

This interview was conducted in the presence of the [child’s] mother ...”

On 7 May 2011 the first applicant’s father took her to a psychiatrist at the Polyclinic for the Protection of Children in Zagreb, who, after studying the opinions of 19 February, 5 March and 22 April 2011 (see paragraphs 19, 20 and 23 and above) and interviewing the first applicant, in his observations noted, inter alia, the following:

“It is evident that [the child] is very burdened by her parents’ conflict and the inadequacy of their mutual communication, which frequently goes through her. The girl shows affection towards, rather than fear of, her father. However, when asked what happened [on 1 February 2011] she did not want to talk about it; she was visibly emotionally burdened so I did not insist on it. She freely expresses her dissatisfaction by saying that she does not like it when her father raises his voice. Asked when that happens, she replies: ‘when I do something bad’.

She is functioning well at school, says that she has many friends ... that at her mother’s place she also has friends and likes to go there, but that she feels comfortable at home with her father because she gets on well with ... the daughter of her father’s new partner ...

Her mental state is dominated by the emotional burden of her parents’ conflict, high emotional tensions, the need to be close to her mother (whom she wishes to please by being with her) and, in her relationship with her father, by the conflict of loyalties she has been placed in.

I am of the opinion that the girl has been drawn into a conflict of loyalties and is very burdened by her parents’ disagreements and conflict, which has resulted in high emotional pressure, anxiety and hypersensitivity.

I recommend that the parents undergo family counselling and possibly afterwards also family therapy together with [their daughter].”

On 6 June 2011 the father took the first applicant back to the same psychiatrist who, in so far as relevant, noted:

“The interview with the girl was conducted alone. [The child] states that she feels good, that she cannot wait for school to end but that she has no difficulties in school. She gets on well with both her father’s wife and her mother’s partner, and regards her half-brother and half-sisters as real siblings. She is still sad about her parents’ differences and their inability to adequately communicate [with each other] and their different parenting styles.”

In the course of the above-mentioned custody proceedings (see paragraph 22 above) the court ordered a combined expert opinion from experts in psychiatry and psychology. Accordingly, the applicants and the first applicant’s father were examined by forensic experts of this type at the Neuropsychiatric Hospital in Popovača. As part of the preparation of their opinion each expert conducted interviews, inter alia, with the first applicant. In particular, on 1 July and 28 September 2011 the first applicant was interviewed by each expert; on 2 September 2011 she was interviewed only by the expert in psychiatry. The interviews of 1 July 2011 were conducted without the first applicant’s parents being present, that of 2 September 2011 in the presence of her mother (the second applicant), and those of 28 September 2011 in the presence of her father.

The relevant part of the record of the interview of 1 July 2011 with the expert in psychiatry reads as follows:

“[The child] states that she always tells the truth, literally always, and that she feels her worst when she is told that she is a liar like her mum.

... She very clearly articulates her emotional bond and closeness with her mother and her wish to live with her. ...

[The child] states that she once attempted to talk with her father about living with her mother, but that the conversation ended quickly with him telling her that there would be no discussion about that and that she would stay with him until she was eighteen ... She says that her father is very strict and that he often shouts at and insults her, which makes her embarrassed and scared. The last time he attacked her, because of the picture [frame], I. [her father’s partner] stopped him, and she felt nauseous ...

She says that she complained to her mother about her father, which was why she went to the police with her. She was particularly struck when the social worker came to the police [station] and talked to her mother; she heard the social worker say that unless they agreed on where [their daughter] was going to live she would be placed in a children’s home. (The girl cries for a long time afterwards).

When asked how it is to live with her father, she states that she would prefer to live with her mother as she is closer to her ...”

The relevant part of the record of the interview of 1 July 2011 with the expert in psychology reads as follows:

“Dad is so- so. When he is in a good mood, he is good. When he is not [in a good mood] he is not [good]. Once when he forced me to eat I vomited.’ ...

‘Mum is great. Good, fair and does not hit me. She does not threaten me. I do not fight with her that much. I am calmer when I am with my mum, there are not that many fights, I am more relaxed.’

... She said that she came to the expert assessment ‘because of what dad did to me and because I want to live with my mum. I wanted ... He threatened me ...’ She cried and indistinctly through tears says that her dad smeared food over her face as a joke so she felt ugly and embarrassed. ‘He hit me once ... He said that he did not but that he only made a [threatening] gesture with his finger ...’

After she calmed down we cameng back to the traumatic incident.

You started crying?

‘... He did this to me (she demonstrates with her hand round her neck). Dad hit me and I always cry so I almost vomited. [He squeezed me] this hard (she is touching her throat and chin) so that I almost vomited ...’

‘[He called me a thief] and I said I was not and then he hit me near the eye (she shows the left temple) ... He asked me if I would do that again (she needs to be interrupted because she is speaking indistinctly while sobbing) ... [The next day] ... I told my mum what he had done to me. She told me that we could go to the police and there I told [them what happened] ... The first lady [the policewoman] there was good. The other [the social worker] pulled my hand while saying that I have to go to my dad. I did not want [to go]. She then told me that if mum gets into a fight with dad she will go to jail and I will go into a children’s home (she is sobbing). I had to go with my father. Dad said that we would not talk about that ...’

‘Yesterday he told me that he had never hit me and that he had not done anything to me and that I should tell the truth. But he did hit me. He also told me that when he smeared the food over my face it was a joke, but I felt embarrassed. He also told me that if I mentioned it he would call [the stepmother and stepsister] to say that it was a joke, which would make me look like a liar. I felt embarrassed and ugly then ...

‘He threatened to cut off my hair if did not stop biting my nails, and to take my mobile phone away.’

‘Once we were in the car together ... he saw mum with [her new partner] in the next lane. He said that he would put both of them to jail and kill them. He swore at them a lot. He told them many bad things ... The next day or shortly afterwards he said that through his people he would ensure that my mum and me did not see or hear from each other.’

‘I was at a doctor’s in Zagreb some time ago. He asked me something about school but he seemed bad to me and I did not want to talk to him and I did not tell the truth. After a month we went to him again. I said I wanted to live with my mum but I did not mention that my dad had hit me. Then I was afraid of my dad, and still am because I knew he would say that he had not hit me ...’

‘Once he hit me when I was little, I do not remember, once ...’

‘He gets upset when I cannot eat something. When I say something [to justify myself] he asks why I defy him. He used to insult me. He called me a cow, stupid goat. He swore at me. He told me to go to hell ... he said that to me many times. He also told me to fuck off many times ... He told me that my mum was a whore (she is crying) ...

‘Mum tells me that I cannot do certain things. She does not threaten me. Sometimes she raises her voice, but she does it rarely and then I do not do it any more.”

The relevant part of the record of the interview conducted on 2 September 2011 with the expert in psychiatry reads as follows:

“This interview was conducted with the girl and the mother together in order to observe their mutual interaction. During the interview it is noticeable that the girl is somewhat more withdrawn and serious than during the previous interview ...

At some point the girl has a strong emotional reaction. The girl states (while crying) that she would like to celebrate her forthcoming birthday at her mum’s place ... given that she celebrated her last birthday with her father. The mother did not manage to calm the girl completely or ease her frustration. Instead, she herself looked anxious and frustrated, almost lost.”

The relevant part of the record of the interview of 28 September 2011 with the expert in psychiatry reads as follows:

“This interview was conducted with the girl and the father together in order to observe their mutual interaction. During the interview it is noticeable that the girl is somewhat more withdrawn and deep in her thoughts, and seems restrained ... Asked if she would like to change something, she says that she would like to live with her mum and that she wishes to be able to extend the time she spends with one parent when she wants to stay with that parent longer. While saying that the girl reacts emotionally (she is crying). In the course of it there is no mutual contact between the girl and her father; there is no eye contact, nor is the father trying to calm her. Each [keeps] to themselves, with their eyes fixed forward.”

The relevant part of the record of the interview of 28 September 2011 with the expert in psychology reads as follows:

“She states in her father’s presence: ‘I would like to live with my mum and decide when visits should take place, to go with my mum or my dad (she is crying). Dad adds: ‘That would be the best ...’

To the direct question whether she asked her dad about it, she replies that she did not. She adds that once she asked her dad [about it] and that he said that she could not go to her mum ...”

On 27 October 2014 the first applicant wrote the following in her school essay:

“...they all think that they know me but they don’t know even a third of me. They judge me by my success in school, but that isn’t me. They don’t know what is happening, they see me as a happy girl, but I am the opposite of that. I have lived with my dad since I was six years old, and from day one I wanted to go to [live with] my mum ... Dad tells me he won’t let me go until I am 18 ... For some time already I have found comfort in cutting myself ... the scars are no longer visible, only when I play volleyball or some other ball game and when my arm turns red, then they are visible.”

Alarmed by the first applicant’s admission of self-harm in the school essay, on 22 November 2014 the second applicant took her to the same psychologist who had examined her on 5 March and 22 April 2011. In her observations the psychologist noted the following:

“[The girl] came accompanied by her mother because the mother had learned of [her daughter’s] self-harm, which [the girl] had written about in a school essay ... of 27 October 2014.

Interview:

Depressive, anxious at the beginning ... verbally fluent. We are talking in the absence of the mother.

After the her parents’ divorce, [the girl] lived with her mother. She says that was the happiest period in her life. She had lived with her father since she was six [years old] ... Relations in the family she described as conflictual, she is afraid of her father. She describes emotional blackmail by her [paternal] grandmother and threats and emotional blackmail by her father, as well as occasional abuse by the father, on which there are medical and police reports. She states that when she was six, she [because of being] manipulated and intimidated by her father, stated during the [forensic] expert examination [in the course of divorce proceedings] that she wanted to live ‘fifty-fifty’ [when asked which parent she would like to live with]. She says that her dad told her to say that but that she did not know what it meant. Since the divorce became final she has lived with her father, and has suffered because she has a close and trusting relationship with her mother and her mother’s partner. From that time on she has been expressing the wish to live with her mother, but despite all her statements [to that effect] ... the [relevant] authorities pay no heed ... Thanks to her mother’s support and understanding she is still functional [that is she manages to live normally] but is unhappy because she cannot live with her mother.

She says that she is unhappy, that she does not understand why the [relevant] authorities are ignoring her, and that they do not understand how much they are abusing her by not taking appropriate measures.

In her school essay (which was presented) she mentions that she cut herself on the arms. Her friend helped her to deal with the scars. When asked why she did that, she replies that it was because she felt helpless in enduring the constant pressure in her father’s family, constant conflicts, inability to manage her own time, and refusal to let her live with her mother, which would make her happy. Other behaviour mentioned in the essay points to the development of an obsessive-compulsive disorder, fear of the dark, anxious-depressive symptomatology, and emotional control disorder. These are not related to puberty but indicate post-traumatic stress symptomatology, emotional disorders caused by constant frustrations, and child abuse ...

The girl has for years been burdened by expert examinations, judicial proceedings, interviews at the social welfare centre, and the hope that someone will finally listen to her plea to live with her mother, because since the age of six she has been unhappy because she has to live with her father. She enjoys her mother’s and her mother’s partner’s company, and they are supportive, but she is afraid that she will not be able to live with them for a long time yet. She is unhappy because her father constantly fights with her and does not want her to be happy (as she would be if she lived with her mother). She ‘hates the situation she is in, where she is forced to live with her dad. She wants to become an advocate and she would never allow her child to suffer as she does because she is not allowed to choose with whom ... to live.’

She is introverted, anxious ... Emotional suffering, distrust, depression, fear, guilt, reduced impulse control and problems with facing stress are diagnosed. These symptoms are related to inability to control her desires and to plan and organise. Despite previously established above-average cognitive capacities, a reduced level of openness and a need for new experiences is detected. This is probably because of continuing obstruction of her freedom of action. Despite constant obstructions she is still willing to fight for herself. She is empathic.

She has very developed defence mechanisms. However, symptoms of post-traumatic stress are also detected.

Conclusion:

Elements of strong psychological trauma are diagnosed (post-traumatic stress), which are, according to her statements, the result of frustration caused by the abuse by her father and the authorities who are ignoring her wish to live with her mother, and [which serve] to protect her from suffering and the feeling of helplessness, which she reduces by obsessive-compulsive disorder and by harming herself.”

As already mentioned above (see paragraph 21), on 30 March 2011 the State Attorney indicted the first applicant’s father before the Zadar Municipal Court for having committed the criminal offence of bodily injury defined in Article 98 of the Criminal Code (see paragraph 86 below) during the incident of 1 February 2011.

On 19 April 2011 the court issued a penal order (kazneni nalog), finding him guilty as charged and imposing a fine of HRK 1,820.

On 4 May 2011 the first applicant’s father challenged the penal order, arguing that the basis on which it had been issued was false. The court accordingly set aside the penal order, and the proceedings resumed under the rules of summary criminal procedure.

The hearing scheduled for 7 May 2013 was adjourned because neither the accused nor the summoned witnesses attended it.

At the hearing held on 6 June 2013 the first applicant’s father pleaded not guilty and made a statement. He also proposed that several witnesses be heard. The applicants proposed that they themselves be heard.

At the hearing held on 23 July 2013 the court heard the second applicant, one of the police officers who had interviewed the applicants following the incident of 1 February 2011, the first applicant’s schoolteacher, and Z.M., a psychologist who had acted as supervising officer during the implementation of the first child protection measure in respect of the supervision of the exercise of parental authority (see paragraph 11 above).

The police officer stated that she had not noticed any visible injuries on the first applicant during the interview with her the day after the incident of 1 February 2011. The first applicant’s schoolteacher had not seen any injuries either. He also testified that he had noticed that the first applicant had seemed sad the day after the incident and that he had talked to her about this; the first applicant had told him on that occasion that her father had not hit her. Z.M., who said that he had spoken with the first applicant some time after the incident in the capacity of a private individual and at her father’s request, testified that the first applicant had told him that her father had yelled at her and that she had been afraid that he would hit her but that he had not. He also stated that as a school psychologist he knew very well how to recognise signs of abuse in children and that the first applicant had not shown such signs.

On 25 July 2013 the court decided to obtain an expert opinion from a medical expert on the first applicant’s injuries.

The hearing scheduled for 18 September 2013 was adjourned because the summoned witnesses failed to attend it.

On 23 September 2013 the expert submitted his opinion, which stated that it was possible, but could not be determined with certainty, that the first applicant’s injury had been sustained during the incident of l February 2011. The relevant part of his opinion states as follows:

“The following injury was established [at the time] by medical examination:

small haematoma of the left lower eyelid.

This injury constitutes a bodily injury.

The injury was inflicted by some hard and blunt object. It was inflicted by a single blow of low intensity.

The mechanism of the injury could correspond to the course of events as they were described to the doctor by the injured party during the examination (a blow with the hand to the eye).

However, it is to be noted that the injury was described by the doctor who performed the examination as a haematoma in resorption, thus in [the process of] disappearing, fading. That normally happens after a certain period of time, for example, several days, after an injury. It would not be common for resorption to already be visible the day after the injury.

It follows from the above that the injury could have been inflicted during the incident in question, but that a causal link cannot be established with certainty.”

At the hearing held on 24 October 2013 the court heard the other police officer who had interviewed the first applicant on 2 February 2011, the social worker who had been present during the interview with the police, and the doctor who had examined her on that day.

The police officer testified that the first applicant did indeed not want to return to her father and that the social worker from the local social welfare centre had indeed told her that they would have to temporarily place her in a children’s home if she refused. She also testified that she had not seen any signs of injury on the first applicant. The social worker testified that she had not noticed any signs of injury on the first applicant either. She also stated that while it was true that the first applicant had not wanted to return to her father, she had changed her mind after they spoke, in the course of which she had not mentioned the alternative of sending the first applicant to a children’s home. The doctor who examined the first applicant stated that resorption of a haematoma occurred more quickly in children and young people. While he excluded the possibility that the injury could have been caused by crying and rubbing the eyes he did not rule out the possibility that it had been caused by, for example, the first applicant being hit by the ball during her volleyball practice. The applicants’ representative reiterated their proposal that the first applicant be heard.

In order to decide on that proposal, the court decided to consult the case file concerning the above-mentioned custody proceedings (see paragraph 22 above and 60-81 below). Eventually, the court decided to hear the first applicant via video link on 1 July 2014.

However, that hearing was adjourned because on 30 June 2014 the first applicant’s father sought withdrawal of the trial judge; that application was dismissed by the court’s president on 3 July 2014.

Since none of the courts in Zadar was equipped with a video link device, the court asked the police authorities to provide it. The police informed the court that it would make available a video-link device on 16 October 2014. Accordingly, the examination of the first applicant was scheduled for that date.

However, on 14 October 2014 the police authorities informed the court that they would not be able to provide the device on 16 October 2014.

According to the Government, the proceedings are still pending, depending on the availability of the video link device.

Meanwhile, on 27 April 2011 the second applicant lodged a criminal complaint with the State Attorney against the first applicant’s father accusing him of the criminal offence of child abuse as defined in Article 213 paragraph 2 of the Criminal Code (see paragraph 86 below). In particular, the second applicant argued that he had physically and psychologically abused the first applicant by: (a) in the period between February 2008 and April 2011, inter alia, swearing at her and calling her names, frequently forcing her to eat food she did not like, and force-feeding her when she refused, threatening to hit her, cut off her long hair and ensure that she never saw or heard from her mother, hitting her with a hairbrush on one occasion, among others, and (b) on 1 February 2011 hitting the first applicant several times in the face and squeezing her throat while verbally abusing her, as a result of which she was later diagnosed by an ophthalmologist with bruising of the eyeballs and eye-socket tissue.

On 20 June 2011 the State Attorney asked the of the Zadar County Court (Županijski sud u Zadru) investigating judge to: (a) question the suspect, (b) take statements from his partner and from the second applicant and her partner, and (c) order a combined expert opinion from experts in psychiatry and psychology.

On 29 September 2011 the State Attorney’s Office itself ordered a combined expert opinion from certain court experts in psychiatry and psychology. On 4 October 2011 it set that order aside after finding that such a combined expert opinion had already been obtained in the context of the above-mentioned custody proceedings (see paragraph 22 above and paragraphs 60-81 below).

On 16 January 2012 the State Attorney dismissed the second applicant’s criminal complaint, finding that there were not sufficient grounds to suspect that the first applicant’s father had committed the criminal offence the second applicant had accused him of. In so doing the State Attorney’s Office addressed only the part of her complaint concerning the alleged abuse of the first applicant in the period between February 2008 and April 2011, and not the part concerning the incident of 1 February 2011. After examining the statements made to the police by the suspect and his partner, the second applicant and her partner, psychiatrists’ opinions of 19 February and 7 May 2011, the psychologist’s opinion of 5 March 2011, and the combined expert opinion of 29 December 2011 (see paragraphs 16-17, 19-20 and 25 above and paragraphs 69-70 below), the State Attorney gave the following reasons for his decision:

“Analysing the above facts, it follows that the suspect I.M.’s conduct or the conduct of [the second applicant] cannot be regarded as conscious and deliberate emotional or physical child abuse, but rather as inadequate child-rearing practice [ parenting style] and reaction caused by parental conflict over child custody, persistence of long-lasting mutual unresolved conflicts, and limited parenting capacity ...

In view of the foregoing ... there is no reasonable suspicion that the suspect I.M. committed the criminal offence he is accused of ...”

The first and second applicants then decided to take over the prosecution from the State Attorney as injured parties in the role of (subsidiary) prosecutors. As the Criminal Procedure Act requires that an accused be questioned before being indicted, on 25 January 2012 the applicants asked an investigating judge (sudac istrage) of the Zadar County Court to question the first applicant’s father.

By a decision of 9 February 2012 the investigating judge dismissed the applicants’ request, holding that the facts adduced by the applicants did not constitute the criminal offence of child abuse. In so doing he relied on the combined expert opinion of the forensic experts in psychiatry and psychology of 29 December 2011 obtained in the custody proceedings (see paragraphs 69-70 below). The relevant part of that decision reads as follows:

“... the conduct cannot be regarded as abuse [because the combined expert opinion] did not confirm the diagnosis of child abuse. This is very strongly indicated by the recommendation that changing the child’s residence is not advisable. Had that diagnosis been established, the recommendation concerning the child’s residence would have certainly been very different.”

On 21 February 2012 a three-member panel of the Zadar County Court dismissed an appeal by the applicants against the decision of the investigating judge. The relevant part of that decision reads as follows:

“[The child is under supervision] by the [local] social welfare centre. It is therefore evident that if the suspect had behaved in an unseemly or inappropriate manner towards her as a parent that the centre would have reacted. There must have been reasons why the father was awarded care of the child. If there is any change in circumstances that decision could also be changed. According to the expert opinion no elements of abuse were found ...”

On 24 May 2012 the Constitutional Court (Ustavni sud Republike Hrvatske) declared inadmissible a subsequent constitutional complaint by the applicants. It held that the contested decisions of the Zadar County Court were not susceptible to constitutional review. The Constitutional Court served its decision on the applicants’ representative on 3 July 2012.

Meanwhile, on 30 March 2011 the second applicant brought a civil action in the Zadar Municipal Court against the first applicant’s father with a view to altering the custody and contact arrangements ordered in the judgment of the same court of 24 August 2007 (see paragraph 10 above). In particular, she sought custody of the first applicant. At the same time the second applicant asked the court to issue a provisional measure whereby it would temporarily grant her custody of the first applicant pending the final outcome of the principal proceedings.

The court regarded the second applicant’s civil action as an application for non-contentious proceedings, as it considered that the rules on non-contentious procedure rather than those on regular civil procedure should apply in such matters. It held hearings on 29 April and 16 May 2011.

The local social welfare centre participated in those proceedings as an intervener sui generis with a view to protecting the first applicant’s interests.

At the hearing held on 29 April 2011 the second applicant’s representative insisted on the provisional measure being issued. The representative of the local social welfare centre stated that the situation in the first applicant’s family was very complex, that her parents had made numerous criminal complaints against each other, and that both parents should be assessed by forensic experts. He also stated that the centre could not at that time make a recommendation as regards the provisional measure requested, because such a recommendation could only be made after completion of the family assessment procedure by a team of professionals employed at the centre. The second applicant’s representative replied that the centre had been aware of the incident of 1 February 2011 but had taken no action to address the situation in the first applicant’s family. She therefore insisted on pursuing the application for a provisional measure.

On 12 May 2011 the local social welfare centre submitted its report and recommendation to the court. In the course of their preparation of this report the centre interviewed the second applicant and the first applicant’s father on 3 and 4 May 2011, visited their homes and requested an opinion from the first applicant’s school. The relevant part of the centre’s report reads as follows:

“The allegations of the [child’s parents] who accuse each other of child abuse are impossible to verify, nor can a straightforward conclusion be made only on the basis of interviews with them or on the basis of visits to their families.

There is an impression that the parents, burdened by their permanently strained relationship and the need of each of them to live with the child, consciously or subconsciously place themselves and their needs first while disregarding the welfare and the needs of the child.

The child protection measure of supervision of the exercise of parental authority was previously ordered in respect of the parents during the divorce proceedings, from 1 November to 31 August 2008.

Given that the already bad communication between the parents has worsened again, which brings about negative tensions which could be harmful for the child’s emotional development, and having regard to the fact that they are again facing court proceedings, the centre is in the process of imposing the same measure with a view to protecting the rights and welfare of [the child] through which [the centre] shall monitor the mother’s and the father’s relationship with the child and [in the implementation of which] they will be advised how to improve communication between them and strengthen their parenting competencies.”

The social welfare centre recommended a combined expert assessment of the first applicant and her parents with a view to establishing their parenting abilities and the possible consequences of their behaviour for her physical and mental development. They added that the first applicant’s family situation was complex but that at that moment there was nothing to suggest that it was life-threatening. The relevant part of the social welfare centre’s recommendation reads as follows:

“After having conducted the family assessment procedure ... it was established that the parents express opposing views as regards abuse and neglect of [their child]. [The mother] accuses the father of child abuse [in that] he is abusing the child physically and emotionally, obstructing her contact with the mother, and using inappropriate child rearing methods. [The father] accuses [the mother] of neglecting the child’s interests by her behaviour [in that] she does not pay child maintenance, does not come to school to consult with teachers or to parents’ meetings and that the child is being manipulated by the mother ...

Having regard to the medical documentation at the disposal of the centre, the parties’ submissions, visits made to [the father’s and the mother’s] homes and interviews with them, we recommend that the parents and the child undergo a combined [psychiatric and psychological] expert assessment in order to assess their fitness for further care of [their daughter] and the possible consequences of their behaviour for her psycho-physical development.

It is true that the family situation is complex. However, there is no impression that at present [the child’s] life is at risk in her father’s family.”

By decisions of 16 May and 6 and 16 June 2011 the court ordered a combined expert opinion from forensic experts in psychiatry and psychology who were to assess: (a) the parenting capacities of the second applicant and the first applicant’s father, (b) the first applicant’s condition, and (c) whether the first applicant had been exposed to abuse and, if so, by whom.

By a decision of 7 June 2011 the court refused to issue a provisional measure sought by the second applicant (see paragraph 60 above). In so deciding the court examined the ophthalmologist’s report of 2 February 2011, the psychiatrists’ opinions of 19 February and 7 May 2011, and the psychologist’s opinions of 5 March and 22 April 2011 (see paragraphs 13-14, 19-20, 23 and 25 above). It also consulted the case file of the criminal proceedings in respect of the bodily injury, and examined the report and recommendation of the local social welfare centre of 12 May 2011 (see paragraphs 64-65 above). It found, in view of the conflicting opinions of the psychiatrists, the penal order against the first applicant’s father which never became final, and the recommendation of the local social welfare centre, that at that point the allegations that the first applicant had been abused by her father were not plausible enough to justify her immediate temporary removal from his custody. In particular, the court held as follows:

“... the case was not sufficiently plausibly made that such a measure was necessary to prevent violence or the risk of irreparable harm from materializing, given that at present it remains uncertain and disputed whether [the child] was subject to abuse by her father or was being manipulated by her mother ...”

On 2 March 2012 the Zadar County Court (Županijski sud u Zadru) dismissed an appeal by the second applicant and upheld the first-instance decision.

On 29 December 2011 the forensic experts submitted their opinion (see paragraph 66 above) to the Zadar Municipal Court. In their opinion the experts found that both the second applicant and the first applicant’s father had limited parenting abilities and suffered from personality disorders (both of them were emotionally unstable and the first applicant’s father was also narcissistic). As regards the first applicant, the experts found that she was emotionally traumatised by her parents’ separation and their mutual conflict and lack of communication. Instead of shielding her from that conflict her parents had placed her at the centre of it and manipulated her sometimes up to the level of emotional abuse. The experts therefore recommended that the first applicant and her parents receive appropriate therapy. They further found that the first applicant was ambivalent towards her father and idealised her mother, whom she viewed as a “friend”, and expressed the wish to live with her. The experts were of the opinion that this desire to be close to her mother could be achieved through (more) extensive contact between the first and the second applicant. If after one year of recommended therapy the first applicant still wished to live with her mother, they recommended that another combined expert opinion be obtained.

The experts did not reply to the court’s question whether the first applicant had been exposed to abuse and, if so, by whom (see paragraph 66 above). Their conclusions were: (a) that the first applicant should nevertheless remain living with her father for the time being while maintaining extensive contact with her mother, (b) that she and both her parents should undergo treatment and counselling, (c) that the supervision of the exercise of parental authority (the child protection measure imposed by the local social welfare centre, see paragraph 82 below), should be continued, and (d) the first applicant and her parents should be reassessed after a year. In particular, the experts concluded:

“We do not find [any] contraindications to [the child’s living with her father. [Our] recommendation is that, for the time being it is not necessary or desirable to change the child’s place of residence, that is to say [the child] should continue living with her father.”

Following a request by the second applicant, by a decision of 27 July 2012 the Zadar Municipal Court appointed G.Š., an advocate practising in Zadar, to act as a special representative for the first applicant and represent her interests in the proceedings, as required by Article 9, paragraph 1, of the European Convention on the Exercise of Children’s Rights (see paragraph 94 below).

Following an appeal by the first applicant’s father, on 26 October 2012 the Zadar County Court quashed that decision and remitted the case. It held that the first-instance court had failed to establish whether the interests of the first applicant were indeed in conflict with the interests of (one of) her parents, which was a necessary precondition for the appointment of a special representative.

By a decision of 13 November 2012 the local social welfare centre appointed the same person to act as the first applicant’s guardian ad litem pursuant to section 167 of the Family Act (see paragraph 84 below).

The Zadar Municipal Court held further hearings in the case on 6 September and 11 December 2012 and 8 March 2013.

At the last mentioned hearing the court heard the experts who had prepared the combined expert opinion of 29 December 2011. Those experts stated, inter alia: (a) that their expert opinion had in the meantime become obsolete, because a year and two months had passed since they had prepared it (b) they had not replied to the court’s question whether the first applicant had been exposed to abuse, because it was the task of the judicial authorities and not theirs to make that assessment and (c) it would be irrelevant which parent the first applicant should live with if her parents both behaved better.

By a decision of 30 April 2013 the Zadar Municipal Court dismissed the second applicant’s application for the custody and contact arrangements stipulated in the judgment of 24 August 2007 to be reversed. The second applicant and the first applicant’s guardian ad litem appealed.

On 15 November 2013 the Zadar County Court quashed the first-instance decision for incomplete facts and remitted the case to the lower court. It instructed the first-instance court to: (a) inquire whether the first applicant’s father’s conviction for the criminal offence of bodily injury against her had become final, (b) assess whether the first applicant was able to understand the importance of the proceedings and, if so, allow her to express her opinion and take her testimony, (c) assess the need to appoint a special representative to the first applicant, and (d) obtain an opinion and recommendation from the local social welfare centre.

In the resumed proceedings, on 18 November 2013 the Zadar Municipal Court discontinued the non-contentious proceedings and decided that the proceedings would be continued under the rules of (regular) civil procedure. The court explained that the second applicant’s application for reversal of the custody and contact arrangements set forth in its judgment of 24 August 2007 (see paragraph 10 above) would, if agreed, necessarily entail a new decision on payment of maintenance by the non-custodial parent, which was an issue that could not be decided in non-contentious but only in regular civil proceedings. That did not mean that procedural acts undertaken thus far had lost their validity or become irrelevant.

On 27 February 2014 the second applicant lodged a request for protection of the right to a hearing within a reasonable time, complaining about the length of the proceedings.

On 9 July 2014 the president of the Zadar Municipal Court dismissed the first applicant’s request.

It would appear that the proceedings are currently again pending before the Zadar Municipal Court as the court of first instance.

Following the incident of 1 February 2011, on 22 September 2011 the local social welfare centre again (see paragraph 11 above) issued a decision ordering the child protection measure of supervision of the exercise of parental authority in respect of the first applicant. The measure was imposed for a period of one year and was, by the centre’s decision of 1 October 2012, further extended for another six months, until 31 March 2014, when it was discontinued.

In her final report of 30 March 2014 the supervising officer (a psychologist) summarised the results of the measure in the following terms:

“The aim of the measure was to encourage appropriate parental behaviour with a view to preventing and minimising the negative effects of [their] conflictual relationship on the child’s psycho-physical development ... in that sense it was only a question of creating preconditions for adequate communication between the parents, so that currently there is no open conflict (but only because the parents avoid it). In particular, the parents are observing the visiting schedule. They have made concessions to each other from time to time. However, the parents are still in conflict, they still do not communicate, and the majority of their communication goes through the child or through text messages. It is precisely in this way that they are disregarding [her] needs and forcing [her] to deal with something with which she should not be dealing at her age (or at any other age for that matter). Both parents think they are doing what is best for their child, while forgetting that their conflict is the major obstacle to the normal psycho-physical development and functioning of their child ... [The mother] thinks that the child should be with her and that the wish of the child, who also expresses the wish to be with her, should be respected. [The father] thinks that that his role is to protect the child from the mother’s negative influence and ensure stability for her. Those views are O.K., but the only question is how much each of them negatively affects the child by fighting for their own position? For a compromise people need to be ready to partially abandon their position, but they are not ready to do so. In my view, both parents have a good relationship with the child; they [both] try to spend quality time with her. They differ to some extent in their methods and parenting styles ([the mother’s] is permissive and directed at [developing] a friendly relationship with her daughter, which may also be a strategy for ‘winning’ the child, whereas [the father] is more impulsive, with a tendency to give in, and is oriented towards the traditional role of the father, which would not be a problem if the two parents would cooperate ... Neither of them disputes that the role of the other parent is also important for the child, but they both find it important that the child lives with them, believing that in that way they would diminish the harmful influence ‘the other parent has on the child’. This means that the main problem is unresolved parental conflict, and the parents should probably work on that outside the [social welfare] centre. When they are able to talk to each other, and when they realise why and which of their actions are harmful for [the child] (and stem from their personal conflict) then they will be able to function better. In that regard I think that the supervision measure cannot provide a better solution to the problems they have.”