Domestic violence / abuse
II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Family Act 1. Relevant provisions 84. The relevant provisions of the Family Act of 2003 ( Obiteljski zakon, Official Gazette no. 163/03 with subsequent amendments – hereafter “the Family Act 2003”), which was in force between 22 July 2003 and 1 September 2014, read as follows: Third part PARENTS AND CHILDREN III. RELEVANT INTERNATIONAL LAW A. Convention on the Rights of the Child 1. Relevant provisions 94. The relevant provisions of the Convention on the Rights of the Child of 2 September 1990, which came into force in respect of Croatia on 12 October 1992, read as follows. Article 12 “1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.” Article 19 “1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child. 2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.” 95. The Preamble of the Optional Protocol of 19 December 2011 to the Convention on the Rights of the Child on a communications procedure, which Protocol entered into force on 14 April 2014 but has not yet been ratified by Croatia, reaffirms “the status of the child as a subject of rights and as a human being with dignity and with evolving capacities”. 2. General Comment no. 8 (2006) on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment (arts. 19; 28, para. 2; and 37, inter alia) 96. The relevant part of General Comment no. 8 (2006) on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment (arts. 19; 28, para. 2; and 37, inter alia ) adopted by the Committee on the Rights of the Child at its forty-second session held from 15 May to 2 June 2006, reads as follows: “40. The principle of equal protection of children and adults from assault, including within the family, does not mean that all cases of corporal punishment of children by their parents that come to light should lead to prosecution of parents. The de minimis principle – that the law does not concern itself with trivial matters – ensures that minor assaults between adults only come to court in very exceptional circumstances; the same will be true of minor assaults on children. States need to develop effective reporting and referral mechanisms. While all reports of violence against children should be appropriately investigated and their protection from significant harm assured, the aim should be to stop parents from using violent or other cruel or degrading punishments through supportive and educational, not punitive, interventions. 41. Children ’ s dependent status and the unique intimacy of family relations demand that decisions to prosecute parents, or to formally intervene in the family in other ways, should be taken with very great care. Prosecuting parents is in most cases unlikely to be in their children ’ s best interests. It is the Committee ’ s view that prosecution and other formal interventions (for example, to remove the child or remove the perpetrator) should only proceed when they are regarded both as necessary to protect the child from significant harm and as being in the best interests of the affected child. The affected child ’ s views should be given due weight, according to his or her age and maturity. 42. Advice and training for all those involved in child protection systems, including the police, prosecuting authorities and the courts, should underline this approach to enforcement of the law. Guidance should also emphasize that article 9 of the Convention requires that any separation of the child from his or her parents must be deemed necessary in the best interests of the child and be subject to judicial review, in accordance with applicable law and procedures, with all interested parties, including the child, represented. Where separation is deemed to be justified, alternatives to placement of the child outside the family should be considered, including removal of the perpetrator, suspended sentencing, and so on.” 3. General Comment No. 12 (2009) on the right of the child to be heard (Article 12) 97. The relevant part of General Comment No. 12 (2009) on the right of the child to be heard, adopted by the Committee on the Rights of the Child at its fifty-first session held from 25 May to 12 June 2009, reads as follows. “ A. Legal analysis 15. Article 12 of the Convention establishes the right of every child to freely express her or his views, in all matters affecting her or him, and the subsequent right for those views to be given due weight, according to the child ’ s age and maturity. This right imposes a clear legal obligation on States parties to recognize this right and ensure its implementation by listening to the views of the child and according them due weight. This obligation requires that States parties, with respect to their particular judicial system, either directly guarantee this right, or adopt or revise laws so that this right can be fully enjoyed by the child. ... 1. Literal analysis of article 12 (a) Paragraph 1 of article 12 (i) ’ Shall assure ’ 19. Article 12, paragraph 1, provides that States parties ‘ shall assure ’ the right of the child to freely express her or his views. ‘ Shall assure ’ is a legal term of special strength, which leaves no leeway for State parties ’ discretion. Accordingly, States parties are under strict obligation to undertake appropriate measures to fully implement this right for all children. This obligation contains two elements in order to ensure that mechanisms are in place to solicit the views of the child in all matters affecting her or him and to give due weight to those views. (ii) ’ Capable of forming his or her own views ’ 20. States parties shall assure the right to be heard to every child ‘ capable of forming his or her own views ’. This phrase should not be seen as a limitation, but rather as an obligation for States parties to assess the capacity of the child to form an autonomous opinion to the greatest extent possible. This means that States parties cannot begin with the assumption that a child is incapable of expressing her or his own views. On the contrary, States parties should presume that a child has the capacity to form her or his own views and recognize that she or he has the right to express them; it is not up to the child to first prove her or his capacity. 21. The Committee emphasizes that article 12 imposes no age limit on the right of the child to express her or his views, and discourages States parties from introducing age limits either in law or in practice which would restrict the child ’ s right to be heard in all matters affecting her or him. ... (iv) ’ In all matters affecting the child ’ 26. States parties must assure that the child is able to express her or his views ‘ in all matters affecting ’ her or him. This represents a second qualification of this right: the child must be heard if the matter under discussion affects the child. This basic condition has to be respected and understood broadly. ... v) “Being given due weight in accordance with the age and maturity of the child” 28. The views of the child must be “given due weight in accordance with the age and maturity of the child”. This clause refers to the capacity of the child, which has to be assessed in order to give due weight to her or his views, or to communicate to the child the way in which those views have influenced the outcome of the process. Article 12 stipulates that simply listening to the child is insufficient; the views of the child have to be seriously considered when the child is capable of forming her or his own views. 30. Maturity refers to the ability to understand and assess the implications of a particular matter, and must therefore be considered when determining the individual capacity of a child. Maturity is difficult to define; in the context of article 12, it is the capacity of a child to express her or his views on issues in a reasonable and independent manner. The impact of the matter on the child must also be taken into consideration. The greater the impact of the outcome on the life of the child, the more relevant the appropriate assessment of the maturity of that child. 31. Consideration needs to be given to the notion of the evolving capacities of the child, and direction and guidance from parents .... (b) Paragraph 2 of article 12 (i) The right ‘ to be heard in any judicial and administrative proceedings affecting the child ’ 32. Article 12, paragraph 2, specifies that opportunities to be heard have to be provided in particular ‘ in any judicial and administrative proceedings affecting the child ’. The Committee emphasizes that this provision applies to all relevant judicial proceedings affecting the child, without limitation, including, for example, separation of parents, custody, care and adoption, ... ... (ii) ’ Either directly, or through a representative or an appropriate body ’ 35. After the child has decided to be heard, he or she will have to decide how to be heard: ‘ either directly, or through a representative or appropriate body ’. The Committee recommends that, wherever possible, the child must be given the opportunity to be directly heard in any proceedings. 36. The representative can be the parent(s), a lawyer, or another person (inter alia, a social worker). However, it must be stressed that in many cases (civil, penal or administrative), there are risks of a conflict of interest between the child and their most obvious representative (parent(s)). If the hearing of the child is undertaken through a representative, it is of utmost importance that the child ’ s views are transmitted correctly to the decision maker by the representative. The method chosen should be determined by the child (or by the appropriate authority as necessary) according to her or his particular situation. Representatives must have sufficient knowledge and understanding of the various aspects of the decision-making process and experience in working with children. 37. The representative must be aware that she or he represents exclusively the interests of the child and not the interests of other persons (parent(s)), institutions or bodies (e.g. residential home, administration or society). Codes of conduct should be developed for representatives who are appointed to represent the child ’ s views. ... 2. Steps for the implementation of the child ’ s right to be heard 40. Implementation of the two paragraphs of article 12 requires five steps to be taken in order to effectively realize the right of the child to be heard whenever a matter affects a child or when the child is invited to give her or his views in a formal proceeding as well as in other settings. These requirements have to be applied in a way which is appropriate for the given context. ... (c) Assessment of the capacity of the child 44. The child ’ s views must be given due weight, when a case-by-case analysis indicates that the child is capable of forming her or his own views. If the child is capable of forming her or his own views in a reasonable and independent manner, the decision maker must consider the views of the child as a significant factor in the settlement of the issue. Good practice for assessing the capacity of the child has to be developed. (d) Information about the weight given to the views of the child (the feedback) 45. Since the child enjoys the right that her or his views are given due weight, the decision maker has to inform the child of the outcome of the process and explain how her or his views were considered. The feedback is a guarantee that the views of the child are not only heard as a formality, but are taken seriously. The information may prompt the child to insist, agree or make another proposal or, in the case of a judicial or administrative procedure, file an appeal or a complaint. ... 3. Obligations of States parties ... (b) Specific obligations with regard to judicial and administrative proceedings (i) The child ’ s right to be heard in civil judicial proceedings 50. The main issues which require that the child be heard are detailed below: Divorce and separation 51. In cases of separation and divorce, the children of the relationship are unequivocally affected by decisions of the courts. Issues of maintenance for the child as well as custody and access are determined by the judge either at trial or through court-directed mediation. Many jurisdictions have included in their laws, with respect to the dissolution of a relationship, a provision that the judge must give paramount consideration to the ‘ best interests of the child ’. ... B. The right to be heard and the links with other provisions of the Convention 68. Article 12, as a general principle, is linked to the other general principles of the Convention, such as article 2 (the right to non-discrimination), article 6 (the right to life, survival and development) and, in particular, is interdependent with article 3 (primary consideration of the best interests of the child). The article is also closely linked with the articles related to civil rights and freedoms, particularly article 13 (the right to freedom of expression) and article 17 (the right to information). Furthermore, article 12 is connected to all other articles of the Convention, which cannot be fully implemented if the child is not respected as a subject with her or his own views on the rights enshrined in the respective articles and their implementation. ... 1. Articles 12 and 3 70. The purpose of article 3 is to ensure that in all actions undertaken concerning children, by a public or private welfare institution, courts, administrative authorities or legislative bodies, the best interests of the child are a primary consideration. It means that every action taken on behalf of the child has to respect the best interests of the child. The best interests of the child is similar to a procedural right that obliges States parties to introduce steps into the action process to ensure that the best interests of the child are taken into consideration. The Convention obliges States parties to assure that those responsible for these actions hear the child as stipulated in article 12. This step is mandatory. 71. The best interests of the child, established in consultation with the child, is not the only factor to be considered in the actions of institutions, authorities and administration. It is, however, of crucial importance, as are the views of the child. ... 74. There is no tension between articles 3 and 12, only a complementary role of the two general principles: one establishes the objective of achieving the best interests of the child and the other provides the methodology for reaching the goal of hearing either the child or the children. In fact, there can be no correct application of article 3 if the components of article 12 are not respected. Likewise, article 3 reinforces the functionality of article 12, facilitating the essential role of children in all decisions affecting their lives. ... E. Conclusions 135. Investment in the realization of the child ’ s right to be heard in all matters of concern to her or him and for her or his views to be given due consideration, is a clear and immediate legal obligation of States parties under the Convention. It is the right of every child without any discrimination. Achieving meaningful opportunities for the implementation of article 12 will necessitate dismantling the legal, political, economic, social and cultural barriers that currently impede children ’ s opportunity to be heard and their access to participation in all matters affecting them. It requires a preparedness to challenge assumptions about children ’ s capacities, and to encourage the development of environments in which children can build and demonstrate capacities. It also requires a commitment to resources and training. 136. Fulfilling these obligations will present a challenge for States parties. But it is an attainable goal if the strategies outlined in this general comment are systematically implemented and a culture of respect for children and their views is built.” B. European Convention on the Exercise of Children ’ s Rights 1. Relevant provisions 98. The relevant provisions of the European Convention on the Exercise of Children ’ s Rights of 25 January 1996, which came into force in respect of Croatia on 1 August 2010, read as follows. “ Chapter I – Scope and object of the Convention and definitions Article 1 – Scope and object of the Convention 1. This Convention shall apply to children who have not reached the age of 18 years. 2. The object of the present Convention is, in the best interests of children, to promote their rights, to grant them procedural rights and to facilitate the exercise of these rights by ensuring that children are, themselves or through other persons or bodies, informed and allowed to participate in proceedings affecting them before a judicial authority. 3. For the purposes of this Convention proceedings before a judicial authority affecting children are family proceedings, in particular those involving the exercise of parental responsibilities such as residence and access to children. 4. Every State shall, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary General of the Council of Europe, specify at least three categories of family cases before a judicial authority to which this Convention is to apply. 5. Any Party may, by further declaration, specify additional categories of family cases to which this Convention is to apply or provide information concerning the application of Article 5, paragraph 2 of Article 9, paragraph 2 of Article 10 and Article 11. 6. Nothing in this Convention shall prevent Parties from applying rules more favourable to the promotion and the exercise of children ’ s rights. ... Chapter II – Procedural measures to promote the exercise of children ’ s rights A. Procedural rights of a child Article 3 – Right to be informed and to express his or her views in proceedings A child considered by internal law as having sufficient understanding, in the case of proceedings before a judicial authority affecting him or her, shall be granted, and shall be entitled to request, the following rights: a to receive all relevant information; b to be consulted and express his or her views; c to be informed of the possible consequences of compliance with these views and the possible consequences of any decision. ... B. Role of judicial authorities Article 6 – Decision-making process In proceedings affecting a child, the judicial authority, before taking a decision, shall: a consider whether it has sufficient information at its disposal in order to take a decision in the best interests of the child and, where necessary, it shall obtain further information, in particular from the holders of parental responsibilities; b in a case where the child is considered by internal law as having sufficient understanding: – ensure that the child has received all relevant information; – consult the child in person in appropriate cases, if necessary privately, itself or through other persons or bodies, in a manner appropriate to his or her understanding, unless this would be manifestly contrary to the best interests of the child; – allow the child to express his or her views; c give due weight to the views expressed by the child. ... Article 9 – Appointment of a representative 1. In proceedings affecting a child where, by internal law, the holders of parental responsibilities are precluded from representing the child as a result of a conflict of interest between them and the child, the judicial authority shall have the power to appoint a special representative for the child in those proceedings. 2. Parties shall consider providing that, in proceedings affecting a child, the judicial authority shall have the power to appoint a separate representative, in appropriate cases a lawyer, to represent the child. C. Role of representatives Article 10 1. In the case of proceedings before a judicial authority affecting a child the representative shall, unless this would be manifestly contrary to the best interests of the child: a provide all relevant information to the child, if the child is considered by internal law as having sufficient understanding; b provide explanations to the child if the child is considered by internal law as having sufficient understanding, concerning the possible consequences of compliance with his or her views and the possible consequences of any action by the representative; c determine the views of the child and present these views to the judicial authority. 2. Parties shall consider extending the provisions of paragraph 1 to the holders of parental responsibilities.” 2. Croatia ’ s declaration under Article 1 § 4 of the European Convention on the Exercise of Children ’ s Rights 99. On 6 April 2010, when depositing the instrument of ratification of the above Convention with the Secretary General of the Council of Europe, the Croatian Minister for Foreign Affairs made the following declarations (contained in the instrument of ratification): “In accordance with Article 1, paragraph 4, of the Convention, the Republic of Croatia designates the following categories of family cases to which this Convention is to apply before its judicial authorities: – proceedings for deciding on parental care during the divorce of parents; – proceedings for the exercise of parental care; – measures for the protection of personal rights and interests of a child; – proceedings for adoption; and – proceedings concerning guardianship of minors.” C. Council of Europe Convention on preventing and combating violence against women and domestic violence 100. The relevant Article of the Council of Europe Convention on preventing and combating violence against women and domestic violence of 25 January 1996, which entered into force on 1 August 2014 but has not yet been ratified by Croatia, read as follows: Article 3 – Definitions “For the purpose of this Convention: a “violence against women” is understood as a violation of human rights and a form of discrimination against women and shall mean all acts of gender-based violence that result in, or are likely to result in, physical, sexual, psychological or economic harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life; b “domestic violence” shall mean all acts of physical, sexual, psychological or economic violence that occur within the family or domestic unit or between former or current spouses or partners, whether or not the perpetrator shares or has shared the same residence with the victim; ...” Article 31 – Custody, visitation rights and safety “1 Parties shall take the necessary legislative or other measures to ensure that, in the determination of custody and visitation rights of children, incidents of violence covered by the scope of this Convention are taken into account. 2 Parties shall take the necessary legislative or other measures to ensure that the exercise of any visitation or custody rights does not jeopardise the rights and safety of the victim or children.” Article 45 – Sanctions and measures “1 Parties shall take the necessary legislative or other measures to ensure that the offences established in accordance with this Convention are punishable by effective, proportionate and dissuasive sanctions, taking into account their seriousness. These sanctions shall include, where appropriate, sentences involving the deprivation of liberty which can give rise to extradition. 2 Parties may adopt other measures in relation to perpetrators, such as: – monitoring or supervision of convicted persons; – withdrawal of parental rights, if the best interests of the child, which may include the safety of the victim, cannot be guaranteed in any other way.” Article 46 – Aggravating circumstances “Parties shall take the necessary legislative or other measures to ensure that the following circumstances, insofar as they do not already form part of the constituent elements of the offence, may, in conformity with the relevant provisions of internal law, be taken into consideration as aggravating circumstances in the determination of the sentence in relation to the offences established in accordance with this Convention: ... d the offence was committed against or in the presence of a child; ...” 101. The relevant part of the Explanatory Report to the Council of Europe Convention on preventing and combating violence against women and domestic violence reads as follows: Article 31 – Custody, visiting rights and safety “175. This provision aims at ensuring that judicial authorities do not issue contact orders without taking into account incidents of violence covered by the scope of this Convention. It concerns judicial orders governing the contact between children and their parents and other persons having family ties with children. In addition to other factors, incidents of violence against the non-abusive carer as much as against the child itself must be taken into account when decisions on custody and the extent of visitation rights or contact are taken. 176. Paragraph 2 addresses the complex issue of guaranteeing the rights and safety of victims and witnesses while taking into account the parental rights of the perpetrator. In particular in cases of domestic violence, issues regarding common children are often the only ties that remain between victim and perpetrator. For many victims and their children, complying with contact orders can present a serious safety risk because it often means meeting the perpetrator face-to-face. Hence, this paragraph lays out the obligation to ensure that victims and their children remain safe from any further harm.” D. Council of Europe Guidelines on child-friendly justice 102. The relevant part of the Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice, adopted by the Committee of Ministers on 17 November 2010 at the 1098th meeting of the Ministers ’ Deputies, read as follows. “ III. Fundamental principles 1. The guidelines build on the existing principles enshrined in the instruments referred to in the preamble as well as the case law of the European Court of Human Rights. 2. These principles are further developed in the following sections and should apply to all chapters of these guidelines. A. Participation 1. The right of all children to be informed about their rights, to be given appropriate ways to access justice and to be consulted and heard in proceedings involving or affecting them should be respected. This includes giving due weight to the children ’ s views bearing in mind their maturity and any communication difficulties they may have in order to make this participation meaningful. 2. Children should be considered and treated as full bearers of rights and should be entitled to exercise all their rights in a manner that takes into account their capacity to form their own views as well as the circumstances of the case. ... THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 3 AND/OR ARTICLE 8 OF THE CONVENTION 104. The applicants complained that the State authorities had not complied with their procedural positive obligation under Article 3 and/or Article 8 of the Convention in that they had refused to prosecute the first applicant ’ s father for the criminal offence of child abuse he had committed against her. They also complained that the domestic authorities had not discharged their positive obligation under either of those Articles in that they had failed to remove the first applicant from her father ’ s care and thus prevent him from committing further violent acts against her. Those Articles read as follows: Article 3 (prohibition of torture) “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 8 (right to respect for private and family life) “1. Everyone has the right to respect for his private and family life ...” 105. The Government contested those arguments. A. Admissibility 1. The parties ’ submissions (a) The Government 106. The Government argued that in so far as the applicants complained of a breach of the authorities ’ procedural positive obligation under Article 3 of the Convention to investigate the incident of 1 February 2011, their complaints were inadmissible for non-compliance with the six-month rule. They first explained that the incident in question was to be regarded as a one-off act which had not produced any permanent consequences or a continuous situation. The Government further referred to the Court ’ s case-law, according to which in the absence of an effective remedy the six-month time-limit begins to run from the moment the event complained of occurs. That was precisely the situation in the present case, where the applicants complained that the response by the domestic authorities to the incident of 1 February 2011 had not been appropriate. 107. In any event, since the father had been punished for the incident in question by a penal order against the first applicant ’ s father on 19 April 2011, the six-month time-limit had started to run at the latest on that date, whereas the applicants had not lodged their application with the Court until 3 January 2013. 108. To the extent that the applicants complained of breaches of the authorities ’ positive obligations under Articles 3 and/or 8 of the Convention in the custody proceedings, the Government submitted that the applicants had failed to exhaust domestic remedies. In particular, the Government argued that those complaints were premature because the custody proceedings were still pending (see paragraphs 60-81 above), and that the applicants had not (fully) availed themselves of domestic remedies for the excessive length of proceedings (see paragraphs 79-80 and 92-93 above). The Government therefore invited the Court to declare those complaints inadmissible for non-exhaustion of domestic remedies, both in respect of the length of the proceedings and in respect of the other alleged breaches of positive obligations in those proceedings. (b) The applicants 109. As regards the alleged non-compliance with the six-month rule (see paragraphs 106-07 above), the applicants explained that their complaint that the domestic authorities had failed to comply with their procedural positive obligation was primarily directed against those authorities ’ refusal to prosecute the first applicant ’ s father for the criminal offence of child abuse. In that respect they had exhausted domestic remedies by taking over the prosecution as injured parties in the role of (subsidiary) prosecutors, and had lodged their application with the Court within six months of the last domestic decision rendered in that regard. 110. The applicants did not reply to the Government ’ s argument concerning non-exhaustion of domestic remedies (see paragraph 108 above) because it had been raised for the first time on 26 February 2014 in the Government ’ s comments on the applicants ’ observations of 9 December 2013. 2. The Court ’ s assessment (a) Compliance with the six-month rule 111. As regards the Government ’ s objection regarding the alleged non-compliance by the applicants with the six-month rule (see paragraphs 106-107 above), the Court first reiterates that the procedural positive obligation under Article 3 of the Convention requires States to conduct effective official investigations capable, inter alia, of leading to the punishment of those responsible (see paragraph 136 below). That being so, the Court finds it sufficient to note that the penal order of 19 April 2011, whereby the first applicant ’ s father was sentenced to a fine, was set aside and that the criminal proceedings against him are still pending (see paragraphs 37 and 51 above). Accordingly, the six-month time-limit has not even started to run yet, much less expired, as the Government suggested. It follows that the Government ’ s inadmissibility objection based on non-compliance with the six-month rule must be dismissed. (b) Non-exhaustion of domestic remedies 112. As to the Government ’ s argument that the applicants failed to pursue the domestic length-of-proceedings remedies, the Court notes that it is not the length of the proceedings which is at issue in the present case. Rather, the question is whether in the circumstances of the case seen as a whole the State could be said to have complied with certain positive obligations under Article 3 and/or 8 of the Convention (see Remetin v. Croatia, no. 29525/10, § 75, 11 December 2012 ). 113. It follows that the Government ’ s objection as regards non ‑ exhaustion of domestic remedies must be rejected. 114. To the extent that the Government ’ s non-exhaustion objection rests on the fact that the custody proceedings are still pending and that therefore the applicants ’ complaints under Article 3 and/or 8 of the Convention concerning the alleged breach of the positive obligation to prevent future violent acts against the first applicant are premature, the Court considers that this argument concerns only the merits of those complaints, rather than their admissibility. It will therefore be examined accordingly (see paragraphs 153 ‑ 62 below). 3. Conclusion as to the admissibility 115. The Court further notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The Government 116. The Government emphasised that the documents in the case drawn up by various experts in psychiatry and psychology suggested that the first applicant was traumatised by the highly conflictual relationship of her separated parents. In particular, those experts had regarded her as a child drawn into a conflict of loyalties and thus torn between her parents, both of whom she loved. 117. Not even the diagnosis of child abuse made by a psychiatrist in the opinion of 19 February 2011 (see paragraph 19 above), on which the applicants had relied heavily in support of their allegations that the first applicant had been abused by her father, suggested otherwise. Namely, the code (T74.8) under the International Classification of Diseases the psychiatrist had used on that occasion merely indicated some form of maltreatment, without specifying whether it was physical or psychological (as such abuses were classified under different codes), or whether it had been perpetrated solely by her father. 118. As regards the alleged breach of the procedural obligation under Article 3 or 8 of the Convention, the Government argued that the domestic authorities ’ reaction to the incident of 1 February 2011 had been prompt, without any unexplained delays or obstructions, and detailed. In particular, the police had reacted immediately after the applicants had reported the incident, and had conducted interviews with all the participants and other individuals who could have had knowledge of it, and of events that had preceded it (see paragraphs 13, 15-17, 21 and 24 above). 119. As regards the alleged breach of positive obligations under Article 3 or 8 of the Convention, the Government submitted that the judicial authorities had decided promptly on the second applicant ’ s request for a provisional measure and, on the basis of an opinion given by the local social welfare centre, refused her request for an interim custody order (see paragraph 67 above). That decision had been made only after a careful examination of all the evidence presented and after establishment of all the relevant facts, with the best interests of the first applicant as the primary consideration. The first-instance court had given sufficient reasons for its decision, which thus could not be regarded as arbitrary. The Government averred in that connection that since they had heard the parties directly and examined evidence the domestic courts were in a better position than the Court to assess the evidence, establish the relevant facts, and make a decision. 120. In addition, while the custody proceedings were pending before the first-instance court, the social authorities had imposed the child protection measure of supervision of the exercise of parental authority (see paragraph 82 above), with a view to monitoring the situation in the first applicant ’ s family and reacting promptly if changed circumstances so required. 121. Furthermore, in the course of the first-instance custody proceedings an extensive psychiatric and psychological assessment had been made by forensic experts who, together with a number of other witnesses, had been examined by the first-instance court (paragraphs 66, 69 ‑ 70 and 75), with a view to establishing whether the change in the first applicant ’ s family situation justified a reversal of the custody order. 122. In particular, those experts had suggested that the behaviour of the first applicant ’ s mother (the second applicant) was unpredictable, and that she placed her needs before those of her child. It was therefore better in the given circumstances for the first applicant to continue to live with her father and his family, where she had been living since early childhood, and whose home was a better and safer environment for her development. Therefore, not only was it unnecessary to separate the first applicant from her father, but it would be counterproductive. The experts had also found that what was detrimental to the first applicant ’ s development was the conflict between her parents. All the experts and social welfare professionals had warned both parents about it, and it was the principal reason for imposing the child protection measure of supervision of the exercise of parental authority. 123. In view of the foregoing, it could not be argued that while the custody proceedings were pending the first applicant was at risk of being abused. 124. As regards the applicants ’ objections that the first applicant had not been heard in the custody proceedings, nor had a special representative (see paragraph 129 below), the Government first noted that the domestic authorities had eventually assigned her a guardian ad litem (see paragraph 73 above) whose role was to protect the first applicant ’ s interests and that, contrary to the applicants ’ view, neither the European Convention on the Exercise of Children ’ s Rights nor the domestic law provided for an obligation to assign her any other special representative (see paragraphs 84 and 98 above). Furthermore, from the latest decisions adopted in both the criminal proceedings for bodily injury and the custody proceedings (see paragraphs 47 and 77 above) it was evident that the first applicant would be given a chance to express her views. 125. In view of the foregoing arguments, the Government invited the Court to find that there had been no violation of either Article 3 or Article 8 of the Convention in the present case. (b) The applicants 126. The applicants reiterated their view (see paragraph 104 above) that prosecuting the first applicant ’ s father (only) for the criminal offence of inflicting bodily injury was not sufficient for the domestic authorities to meet their positive obligations under Articles 3 and/or 8 of the Convention. Rather, he should have been prosecuted for the criminal offence of child abuse (see paragraph 86 above). By charging the first applicant ’ s father with the less serious offence of bodily injury entailing a modest penalty the prosecuting authorities had acted in his favour. Besides, even those criminal proceedings had already been pending for more than four years, and there was no indication that they would be over soon and that he would be punished. 127. As regards the custody proceedings and the obligation to protect the first applicant from future violence by her father, the applicants argued that precisely because the domestic prosecuting and judicial authorities had failed to adequately prosecute him, judicial and social authorities and the forensic experts in the custody proceedings had been reluctant to find that the first applicant had been abused by him and to protect her from further violence by removing her from his custody. 128. The applicants in particular pointed to a flaw in the combined expert opinion of 29 December 2011, namely to the fact that the forensic experts who had prepared it had expressly refused to reply to the family court ’ s question whether the first applicant had been abused, and if so by whom (see paragraphs 66, 70 and 75 above). That shortcoming had had wider repercussions, because that expert opinion had also been consulted by the prosecuting and judicial authorities which had eventually refused the applicants ’ attempts to prosecute the first applicant ’ s father for the criminal offence of child abuse (see paragraphs 55 and 57-58 above). 129. The applicants particularly emphasised the fact that neither in the criminal proceedings nor in the custody proceedings was the first applicant heard, although the forensic experts regarded her as being of above-average intellectual capacities and she on multiple occasions before various professionals had unequivocally expressed the wish to live with her mother,even though her age and maturity so permitted. The first applicant ’ s precarious position had been further exacerbated by the fact that it took the domestic authorities more than a year and a half before she finally had a special representative assigned to her in the custody proceedings (see paragraph 73 above), as required by the European Convention on the Exercise of Children ’ s Rights (see paragraph 98 above). 130. Lastly, the applicants pointed out that the custody proceedings had, like the criminal proceedings for bodily injury, also already been pending for more than four years, and there was no indication that they would soon be completed, or what would be their outcome. Because of their inordinate length they had lost their initial purpose, and the first applicant had started exhibiting signs of psychological damage, which the applicants had wished to prevent by instituting those proceedings and removing her from her father ’ s care (see paragraph 33-34 above). 2. The Court ’ s assessment (a) As regards the first applicant 131. The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects, and in some instances the sex, age and state of health of the victim (see, for example, A. v. the United Kingdom, 23 September 1998, § 20, Reports of Judgments and Decisions 1998 ‑ VI, and Costello-Roberts v. the United Kingdom, 25 March 1993, § 30, Series A no. 247 ‑ C). 132. Treatment has been found by the Court to be “degrading”, and thus falling within the scope of the prohibition set out in Article 3 of the Convention, if it causes in its victim feelings of fear, anguish and inferiority (see, for example, Ireland v. the United Kingdom, 18 January 1978, § 167, Series A no. 25, and Stanev v. Bulgaria [GC], no. 36760/06, § 203, ECHR 2012); if it humiliates or debases an individual (humiliation in the victim ’ s own eyes, see Raninen v. Finland, 16 December 1997, § 32, Reports of Judgments and Decisions 1997 ‑ VIII; and/or in other people ’ s eyes, see Gutsanovi v. Bulgaria, no. 34529/10, § 136, ECHR 2013 (extracts)), whether or not that was the aim (see Labita v. Italy [GC], no. 26772/95, § 120, ECHR 2000 ‑ IV ), if it breaks the person ’ s physical or psychological resistance or drives him or her to act against his or her will or conscience (see Jalloh v. Germany [GC], no. 54810/00, § 68, ECHR 2006 ‑ IX), or if it shows a lack of respect for, or diminishes, human dignity (see Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, §§ 118 and 138, 17 July 2014). 133. In the present case the applicants alleged that in the period between February 2008 and April 2011 the first applicant had been exposed to physical and psychological abuse by her father (see paragraph 52 above). In particular, they claimed that the first applicant ’ s father had sworn at her, uttered vulgar expressions against her, and called her names such as “stupid” or “cow”, and that he had threatened that he would cut off her long hair and ensure that she never saw or heard from her mother. They also claimed that he had frequently forced her to eat food she did not like and, when she refused, grabbed her chin and shoved the food in her mouth. He had sometimes even smeared the food all over her face. The applicants further claimed that the first applicant ’ s father had often threatened her with physical violence, had hit her on the leg with a hairbrush on one occasion, and had sometimes grabbed her arm and squeezed it so hard that she had bruises afterwards. This had culminated in the incident of 1 February 2011, when he had allegedly hit her in the face and squeezed her throat while verbally abusing her. 134. In this connection the Court itself notes that in her statements to the police, those given before various clinical experts and those before the forensic experts who examined her in the custody proceedings, the first applicant stated on a number of occasions that she was afraid of her father (see paragraphs 15, 19-20, 23, 28-29 and 32 above). She also stated, inter alia, that when her father had smeared the food over her face she had felt embarrassed because she had been made to look ugly (see paragraph 29 above). It follows that, if the applicants ’ allegations are true, the abuse complained of instilled in the first applicant feelings of fear and shame, and on one occasion even caused her physical injury. 135. Therefore, the Court, having regard in particular to the first applicant ’ s young age (she was nine years old at the time of the incident of 1 February 2011), considers that the cumulative effect of all the above-described acts of domestic violence (see, mutatis mutandis, Sultan Öner and Others v. Turkey, no. 73792/01, § 134, 17 October 2006) would, if they were indeed perpetrated, render the treatment she was allegedly exposed to sufficiently serious to reach the threshold of severity required for Article 3 of the Convention to apply. Having regard to its case-law (see paragraph 132 above), the Court finds that such treatment could be regarded as “degrading”. 136. The Court further reiterates that Article 1 of the Convention, taken in conjunction with Article 3, imposes on States positive obligations to ensure that individuals within their jurisdiction are protected against all forms of ill-treatment prohibited under Article 3, including where such treatment is administered by private individuals. Children and other vulnerable individuals, in particular, are entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity (see, for example, A. v. the United Kingdom, cited above, § 22, and Opuz v. Turkey, no. 33401/02, § 159, ECHR 2009, as well as the Council of Europe Recommendation on integrated national strategies for the protection of children from violence, cited in paragraph 103 above). The Court has also acknowledged the particular vulnerability of victims of domestic violence and the need for active State involvement in their protection (see Bevacqua and S. v. Bulgaria, no. 71127/01, § 65, 12 June 2008, and Opuz, cited above, § 132 ). Those positive obligations, which often overlap, consist of: (a) the obligation to prevent ill-treatment of which the authorities knew or ought to have known (see, for example, Đorđević v. Croatia, no. 41526/10, §§ 138 ‑ 139, ECHR 2012), and (b) the (procedural) obligation to conduct an effective official investigation where an individual raises an arguable claim of ill-treatment (see, for example, Dimitar Shopov v. Bulgaria, no. 17253/07, § 47, 16 April 2013 ). 137. In this connection, the Court first observes that the applicants reported the events of 1 February 2011 to the police authorities the next day. During the interview with the police the first applicant stated that her father had hit her in the face the day before, and mentioned other instances of domestic violence complained of (see paragraph 15 above). She later repeated those allegations before various clinical experts (see paragraphs 19 and 23 above), and before the forensic experts in the custody proceedings (see paragraphs 28-29 above). 138. Furthermore, the injury the first applicant allegedly sustained on 1 February 2011 was medically documented. In particular, the next day she was diagnosed by an ophthalmologist with bruising of the left lower eyelid (see paragraph 13 above). The opinion obtained from the forensic expert in the course of the criminal proceedings against the first applicant ’ s father for bodily injury states that she had indeed sustained an injury around that time and that it was possible, though not certain, that it had been inflicted in the way she had described (see paragraph 44 above). 139. As regards the remaining allegations of (mostly psychological) abuse, the Court notes that various therapists and the forensic experts in the custody proceedings established that the first applicant was a traumatised child (see paragraphs 19-20, 23, 25 and 69 above). 140. The Court, being fully aware that the manipulation of children and false accusations of child abuse are common occurrences in highly conflictual relationships between separated parents, considers that this evidence (see the three preceding paragraphs) is sufficient to render the applicants ’ claim brought before the domestic authorities that the first applicant had been abused by her father “arguable”. It was thus capable of triggering the State ’ s (procedural) positive obligation under Article 3 of the Convention to investigate. The “arguable” character of the applicants ’ claim is therefore not called into question by the fact that the Government ’ s submission relied on (see paragraphs 116-17 above) the possibility that the first applicant had been traumatised by her separated parents ’ conflictual relationship, rather than by the alleged ill-treatment by her father. 141. Likewise, once the applicants had reported to the authorities that the first applicant had been abused by her father and had presented the above evidence, those authorities must have been aware that she could be at risk of being subjected to such treatment (again). Accordingly, the State ’ s positive obligation to protect her from future ill-treatment was also engaged. 142. Having regard to the foregoing, and in particular to the fact that the first applicant is both a child and an alleged victim of domestic violence, the Court considers that the present case gave rise to the State ’ s positive obligations under Article 3 of the Convention as regards that applicant. 143. That being so, the Court considers that in so far as the first applicant complained about the State ’ s failure to discharge its positive obligations in relation to violent acts allegedly perpetrated against her by her father, her complaints under Article 8 of the Convention are absorbed by her complaints under Article 3 thereof. 144. The Court must further ascertain whether the domestic authorities complied with their positive obligations under Article 3 of the Convention. (i) As regards the alleged breach of the (procedural) positive obligation to investigate 145. As regards the positive obligation of the domestic authorities to conduct an effective official investigation into the applicants ’ allegations of ill-treatment, the Court first notes that those authorities decided to prosecute the first applicant ’ s father only for the injuries allegedly sustained during the incident of 1 February 2011 (see paragraphs 21 and 35 above). In other words, the domestic authorities decided to prosecute only what appears to be the most serious in a series of violent acts against the first applicant rather than charging her father (also) with a criminal or minor offence(s) capable of covering all the instances of ill-treatment she had allegedly sustained (see paragraphs 86-89 above), which would have enabled those authorities to address the situation in its entirety. 146. In this connection the Court also notes that under the Convention on the Rights of the Child (see Article 19 thereof and points 40-41 of the General Comment thereto, cited in paragraphs 94 and 96 above) all reports of violence against children, including those within the family, must be appropriately investigated (but not necessarily prosecuted). 147. However, even if prosecuting the first applicant ’ s father only for the criminal offence of bodily injury was not in the given circumstances contrary to the State ’ s procedural positive obligation to conduct an effective investigation into allegations of ill-treatment, the Court considers that in the present case the domestic authorities nevertheless failed to comply with that obligation. That is so because the criminal proceedings for bodily injury they did institute have so far lasted more than four years and two months, during which time the case has remained pending before the first-instance court (see paragraphs 35-51 above). 148. In this connection the Court reiterates that for the investigation required by Article 3 of the Convention to be regarded as “effective”, it must not only be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible; a requirement of promptness and reasonable expedition is also implicit in that context (see, for example, W. v. Slovenia, no. 24125/06, § 64, 23 January 2014). Moreover, when the official investigation has led to the institution of proceedings in the national courts, the proceedings as a whole, including the trial stage, must satisfy the requirements of Article 3 of the Convention. In this respect, the Court has already held that the protection mechanisms available under domestic law should operate in practice in a manner allowing for the examination of the merits of a particular case within a reasonable time (see, for example, W. v. Slovenia, cited above, § 65). 149. In that regard the Court first notes that the first applicant ’ s father was indicted within two months of the alleged commission of the offence and that the penal order against him was issued less than a month after that (see paragraphs 35-36 above). It thus cannot but be concluded that at that stage the domestic authorities demonstrated exceptional promptness. 150. However, substantial delays occurred once the first applicant ’ s father challenged the penal order which was then automatically set aside and the criminal proceedings resumed. In particular, from the Government ’ s submission it would appear that in the period between the penal order being challenged on 4 May 2011 and the first hearing in the case being scheduled on 7 May 2013 the proceedings were at a complete standstill for two years (see paragraphs 37-38 above). The Government did not provide any explanation for that delay. 151. Further delays occurred once the trial court decided to hear the first applicant, because neither the court nor the police authorities were equipped with a video-link device (see paragraphs 47-50 above). At a time when this or similar technology is easily available, the Court finds it difficult to justify such a delay, which has so far lasted more than a year. 152. The result of these delays on the part of the domestic authorities is that in the more than four years and five months since the first applicant was injured the domestic authorities have not established by a final judicial decision whether her injuries were inflicted by her father and, if so, determined his criminal liability in that regard and imposed a penalty. In such circumstances, the Court concludes that those authorities have failed to comply with the requirement of promptness implicit in their procedural positive obligation under Article 3 of the Convention (see, a fortiori, Remetin v. Croatia (no. 2), no. 7446/12, § 120, 24 July 2014). (ii) As regards the alleged breach of the positive obligation to prevent ill-treatment 153. At the outset the Court finds it important to emphasise that the applicants did not argue that the domestic authorities had breached their positive obligation by failing to prevent the alleged acts of domestic violence against the first applicant that had already occurred. Rather, they complained that after the incident of 1 February 2011 those authorities had breached that positive obligation by leaving the first applicant in her father ’ s custody, and thus had failed to prevent the recurrence of domestic violence against her. 154. Therefore, the Court ’ s task is to determine whether since the incident of 1 February 2011 the domestic authorities have taken all reasonable measures to prevent potential ill-treatment of the first applicant by her father, that is to prevent a risk which even the applicants themselves have not argued has ever materialised. 155. In this connection the Court notes that on 30 March 2011, some two months after the incident of 1 February 2011, the second applicant instituted proceedings to have the custody order of 24 August 2007 reversed (see paragraphs 22 and 60 above) and the first applicant thereby removed from her father ’ s care. At the same time she asked the first-instance court to issue a provisional measure in the form of an interim custody order, whereby she would have been temporarily awarded custody of the first applicant (see paragraph 60 above). 156. The Court further notes that in its recommendation of 12 May 2011 the local social welfare centre stated that at the time there was nothing to suggest that by staying in her father ’ s home the first applicant would be at risk (see paragraph 65 above). Nevertheless, the centre ’ s opinion was incorrectly formulated in that the relevant risk it was required to assess was the risk of abuse of the first applicant rather than any risk to her life. 157. In this regard the Court finds it important to note that the local social welfare centre was familiar with the first applicant ’ s situation, because in the period between 7 November 2006 and 31 August 2008 it carried out a child protection measure of supervision of the exercise of parental authority in her family (see paragraph 11 above). Following the incident of 1 February 2011 the local social welfare centre again, on 22 September 2011, imposed the same measure, which lasted until 31 March 2014 (see paragraph 82 above). This means that the situation in the first applicant ’ s family was closely monitored by the social authorities during that period. Moreover, nothing in the reports of the supervising officer suggests that during that period the first applicant was, or risked being, ill-treated (see paragraph 83 above). 158. The Court also notes that some two months after the institution of custody proceedings, on 7 June 2011 the first-instance court refused the second applicant ’ s request for a provisional measure (see paragraph 67 above). In so deciding it relied primarily on the above-mentioned recommendation of the local social welfare centre, while also taking into account other evidence, in particular two conflicting opinions of clinical psychiatrists (see paragraphs 19 and 25 above) and the fact that criminal proceedings for bodily injury against the first applicant ’ s father were still pending. It follows that its refusal to order the drastic measure proposed by the second applicant (see in this connection points 40-42 of General Comment no. 8 of the Committee on the Rights of the Child in paragraph 96 above) was based on the absence of sufficient proof that the abuse had taken place and after careful consideration of all relevant materials (see, mutatis mutandis, M.P. and Others v. Bulgaria, no. 22457/08, § 115, 15 November 2011 ). 159. The combined expert opinion from forensic experts in psychiatry and psychology of 29 December 2011, obtained in the context of the same custody proceedings, stated that there were no contraindications to the first applicant ’ s continuing to live with her father (see paragraph 70 above). As regards the applicants ’ argument that those experts had not replied to the family court ’ s question whether she had been abused, and if so by whom (see paragraphs 70 and 128 above), the Court finds it evident that the experts would not have recommended that she continue living with her father if they considered that she had been at risk of ill-treatment. 160. The foregoing considerations are sufficient for the Court to find that in the period after 1 February 2011 the domestic authorities took reasonable steps to assess and weigh the risk of potential ill-treatment of the first applicant by her father and to prevent it. 161. Therefore, while the length of the custody proceedings, which have so far lasted more than four years and three months, is indeed regrettable and is relevant in a different context (see paragraphs 182-84 and 188-89 below), it is not of decisive importance in the context of this complaint, and thus cannot call into question the Court ’ s finding that the State has complied with its positive obligation to protect the first applicant from possible ill-treatment by her father (see, mutatis mutandis, M.P. and Others v. Bulgaria, cited above, § 117 ). 162. This also means that the applicants ’ complaints concerning the alleged breach of the positive obligation to prevent ill-treatment cannot be considered premature just because the custody proceedings are still pending, as the Government argued (see paragraphs 108 and 114 above). (iii) Conclusion as to the merits 163. It follows that in the present case there has been, as regards the first applicant, a violation of Article 3 of the Convention on account of the breach by the domestic authorities of their (procedural) positive obligation to conduct an effective investigation into allegations of ill-treatment, and no violation of that Article on account of their obligation to prevent such treatment. (b) As regards the second applicant 164. As regards the second applicant, the Court reiterates its finding that in the case of Đorđević v. Croatia the ill-treatment to which the second applicant ’ s son had been exposed in that case had had an adverse effect on her private and family life (see Đorđević, cited above, § 97, ECHR 2012). It also held that, by failing to put in place adequate and relevant measures to prevent further ill-treatment of her son, the State authorities had not only breached their positive obligation under Article 3 of the Convention in respect of him but also their positive obligation under Article 8 in respect of her (see Đorđević, cited above, § 153, ECHR 2012). 165. However, in the present case the Court, in view of its above finding under Article 3 of the Convention that the State has adequately discharged its positive obligation to prevent ill-treatment of the first applicant (see paragraphs 160 and 163 above), considers that the domestic authorities have also complied with their positive obligation towards the second applicant under Article 8 of the Convention. 166. Accordingly, there has been no violation of Article 8 of the Convention in the present case as regards the second applicant concerning the alleged breach of the State ’ s positive obligation to prevent violence against her daughter, the first applicant. II. OTHER ALLEGED VIOLATIONS OF ARTICLE 8 OF THE CONVENTION 167. The Court reiterates that it is master of the characterisation to be given in law to the facts of the case, and that it is not bound by the characterisation given by the applicant or the Government. By virtue of the jura novit curia principle, it has, for example, considered of its own motion complaints under Articles or paragraphs not relied on by the parties and even under a provision in respect of which the Court had declared the complaint to be inadmissible while declaring it admissible under a different one. A complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on (see, for example, Şerife Yiğit v. Turkey [GC], no. 3976/05, § 52, 2 November 2010). 168. The Court reiterates that various therapists and the forensic experts in the custody proceedings have established that the first applicant is a traumatised child (see paragraphs 19-20, 23, 25, 69 and 139 above). It further notes that in her statements to the police, those given before various clinical experts, and those before the forensic experts who examined her in the custody proceedings the first applicant stated on a number of occasions that she wanted to live with her mother, the second applicant (see paragraphs 19-20, 23-24, 28, 32, 34 and 69 above). The Court also observes that in her school essay of 27 October 2014 the first applicant stated that she had started cutting herself and later explained before a clinical psychologist that she had done that, inter alia, because of “inability to manage her own time and refusal to let her live with her mother, which would make her happy” and “ because she was not allowed to choose with whom to live” (see paragraphs 33-34 above). The report of that psychologist suggests that the first applicant started self-harming because of frustration resulting from limitation of her freedom of action (see paragraph 34 above). 169. In this connection, the Court reiterates that the mutual enjoyment by parent and child of each other ’ s company constitutes a fundamental element of “family life” within the meaning of Article 8 of the Convention (see, among other authorities, Olsson v. Sweden (no. 1), 24 March 1988, § 59, Series A no. 130, and Gluhaković v. Croatia, no. 21188/09, § 54, 12 April 2011), and that the concept of “private life” within the meaning of that Article includes, inter alia, the right to personal autonomy (see, for example, Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III ) and to physical and psychological integrity (see, for example, X and Y v. the Netherlands, 26 March 1985, § 22, Series A no. 91 ). 170. In particular, in the case of Fernández Martínez v. Spain the Court, as regards the right to private and family life, stressed the importance for individuals to be able to decide freely how to conduct their private and family life, and reiterated that Article 8 also protected the right to self-fulfilment, whether in the form of personal development or from the point of view of the right to establish and develop relationships with other human beings and the outside world, the notion of personal autonomy being an important principle underlying the interpretation of the guarantees laid down in that provision (see Fernández Martínez v. Spain ([GC], no. 56030/07, § 126, ECHR 2014 (extracts)). 171. This right to personal autonomy – which in the case of adults means the right to make choices as to how to lead one ’ s own life, provided that this does not unjustifiably interfere with the rights and freedoms of others – has a different scope in the case of children. They lack the full autonomy of adults but are, nevertheless, subjects of rights (see the Preamble to the Optional Protocol [of 19 December 2011] to the Convention on the Rights of the Child [which came into force on 14 April 2014] on a communications procedure in paragraph 95 above). This circumscribed autonomy in cases of children, which gradually increases with their evolving maturity, is exercised through their right to be consulted and heard. As specified in Article 12 of the Convention on the Rights of the Child (see paragraph 94 above), a child who is capable of forming his or her own views has the right to express them and the right to have due weight given to those views, in accordance with his or her age and maturity, and, in particular, has to be provided with the opportunity to be heard in any judicial and administrative proceedings affecting him or her. 172. Having regard to the foregoing considerations, and taking the best interests of the child as a primary consideration, the Court considers that the applicants ’ complaints that the domestic authorities have been ignoring the first applicant ’ s wish to live with her mother, and the fact that she has not yet been heard in the custody proceedings, which have themselves lasted too long (see paragraphs 129-30 above), raise issues regarding the right to respect for private and family life distinct from those analysed in the context of Articles 3 and 8 of the Convention in paragraphs 153-66 above, which thus require separate examination by the Court under the latter Article. A. Admissibility 173. The Court reiterates that the Government argued that certain complaints by the applicants under Articles 3 and/or 8 of the Convention, namely those concerning the alleged breach of the positive obligation to prevent future violent acts against the first applicant, were premature because the custody proceedings were still pending (see paragraph 108 above). In the context of this part of the application, that argument constitutes an inadmissibility objection and has to be examined as such (compare with paragraph 114 above). 174. In this connection the Court reiterates that those custody proceedings have so far been pending for more than four years and three months, and notes that after three and a half years the first applicant started exhibiting self-harming behaviour, which she herself described as a reaction to the frustration resulting from the fact that she was not allowed to live with her mother, the second applicant (see paragraphs 33-34 above). The Court further reiterates that the speed of the domestic proceedings is relevant to whether a given remedy is to be deemed effective and hence necessary in terms of Article 35 § 1 of the Convention. Indeed, the excessive length of the domestic proceedings may constitute a special circumstance which would absolve the applicants from exhausting the domestic remedies at their disposal (see Šorgić v. Serbia, no. 34973/06, § 55, 3 November 2011 ). That is especially so in cases such as the present one, which concerns a continuing situation (highly) prejudicial to the first applicant ’ s private life (see, mutatis mutandis, X. v. Germany, no. 6699/74, Commission decision of 15 December 1977, Decisions and Reports 11, p. 16, at p. 24). Having regard to the particular circumstances mentioned above, the Court considers that in this case the applicants cannot be required to wait any longer for the final outcome of the custody proceedings. B. Merits 1. The parties ’ submissions 175. The arguments of the Government and the applicants reproduced in paragraphs 121-22 and 124 and in paragraphs 129-30 above, respectively, are also relevant for examining the merits of this part of the application. 2. The Court ’ s assessment (a) The first applicant 176. While the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities, there may in addition be positive obligations inherent in effective “respect” for private and family life, and these obligations may involve the adoption of measures in the sphere of the relations of individuals between themselves. Children and other vulnerable individuals, in particular, are entitled to effective protection (see, for example, Bevacqua and S., cited above, § 64 ). 177. As regards the right to respect for private life, these obligations may involve the adoption of measures designed to secure that right, including both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals ’ rights, and the implementation, where appropriate, of specific measures (see, for example, P. and S. v. Poland, no. 57375/08, § 95, 30 October 2012). 178. As regards the right to respect for family life, these include an obligation on the national authorities to take measures with a view to reuniting parents with their children and to facilitate such reunions. This also applies to cases where contact and custody disputes concerning children arise between parents and/or other members of the children ’ s family (see, for example, Gluhaković, cited above, § 56 ). 179. The Court reiterates that ineffective, and in particular delayed, conduct of custody proceedings may give rise to a breach of positive obligations under Article 8 of the Convention (see Eberhard and M. v. Slovenia, nos. 8673/05 and 9733/05, § 127, 1 December 2009, and S.I. v. Slovenia, no. 45082/05, § 69, 13 October 2011). 180. It further reiterates that whilst Article 8 contains no explicit procedural requirements, the decision-making process must be fair and such as to afford due respect to the interests safeguarded by Article 8 (see, for example, W. v. the United Kingdom, 8 July 1987, §§ 62 and 64, Series A no. 121, and T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 72, ECHR 2001 ‑ V (extracts)). In particular, in a number of childcare case,s the Court has examined whether the parents had been sufficiently involved in the decision-making process, with a view to establishing whether their rights under Article 8 had been violated (see, for example, W. v. the United Kingdom, cited above, §§ 62-68 and 70; Sommerfeld v. Germany [GC], no. 31871/96, §§ 66-75, ECHR 2003 ‑ VIII (extracts)); and Sahin v. Germany [GC], no. 30943/96, §§ 68-78, ECHR 2003 ‑ VIII). 181. Having regard to Article 12 of the Convention on the Rights of the Child (see paragraphs 94 and 97 above, and in particular paragraph 32 of General Comment No. 12 (2009) on the right of the child to be heard), the Court finds that the same considerations apply mutatis mutandis in any judicial or administrative proceedings affecting children ’ s rights under Article 8 of the European Convention on Human Rights. In particular, in such cases it cannot be said that the children capable of forming their own views were sufficiently involved in the decision-making process if they were not provided with the opportunity to be heard and thus express their views. 182. Turning to the present case, the Court notes that the custody proceedings have so far been pending for more than four years and three months. Having regard to its case-law (see Eberhard and M., cited above, §§ 138-42, and Kopf and Liberda v. Austria, no. 1598/06, §§ 46-49, 17 January 2012 ), the Court considers that this fact alone would be sufficient to find that the respondent State has failed to discharge its positive obligations under Article 8 of the Convention, even if the facts of the instant case had not necessitated greater promptness than that normally required in childcare cases. 183. The present case indeed called for greater promptness, because it concerns a traumatised child who, if for no other reason than the fact of her parents ’ conflictual relationship, suffered great mental anguish which culminated in self-harming behaviour. However, it would appear that the domestic courts failed to recognise the seriousness and the urgency of the situation. In particular, it appears that they did not understand that the first applicant perceived life with her mother as a way out of her precarious position, and the custody proceedings as instrumental in achieving that goal. The domestic courts therefore did not realise that the protracted character of those proceedings was exacerbating the first applicant ’ s plight. 184. The Court is particularly struck by the fact that after four years and three months the first applicant has not yet been heard in those proceedings and thus given a chance to express her views on the issue of which parent she wanted to live with. It notes that the County Court had in its decision of 15 November 2013 instructed the Municipal Court to 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 a statement from her (see paragraph 77 above), although there was nothing to call into question the presumption that the first applicant – who was at the time twelve years old – was capable of forming her own views and expressing them (see paragraph 20 of the General Comment No. 12 (2009) on the right of the child to be heard, in paragraph 97 above). In any event, more than a year and seven months have passed without steps being taken to comply even with that instruction. What is even more surprising is that no steps have been taken to accelerate the proceedings even after the first applicant started exhibiting self-harming behaviour. 185. In addition, the Court notes that under the case-law of the Croatian courts, in situations where both parents are equally fit to take care of the child, and the child is, having regard to his or her age and maturity, capable of forming his or her own views and expressing them, the child ’ s wishes as regards which parent to live with must be respected (see paragraph 85 above). The Court cannot but subscribe to that view, as it considers that otherwise the rule that the views of the child must be given due weight would be rendered meaningless. 186. The Court observes that in the present case the forensic experts in psychology and psychiatry found that the first applicant ’ s parents were equally (un)fit to take care of her (see paragraph 69 above), a view that appears to be shared by the local social welfare centre (see paragraph 83 above). Those experts also established that the first applicant expressed a strong wish to live with her mother (see paragraph 69 above). The Court further observes that both her parents live in the same town, and that a reversal of the custody order would therefore not entail the first applicant having to change school or otherwise be removed from her habitual social environment. Moreover, the first applicant, who is an A-grade pupil and whom the experts viewed as being of good or even above-average intellectual capacities (see paragraphs 19-20 above), was nine and a half years old at the start of the proceedings and is now thirteen and a half. It would thus be difficult to argue that, given her age and maturity, she is not capable of forming her own views and expressing them freely. The Court therefore finds that not respecting her wishes as regards the issue of which parent to live with would, in the specific circumstances of the present case, constitute an infringement of her right to respect for private and family life. 187. Having regard to all of the above, the Court finds that there has been a violation of Article 8 of the Convention in the present case as regards the first applicant ’ s right to respect for her private and family life. (b) The second applicant 188. The Court considers that its above findings concerning the protracted character of the custody proceedings apply equally to the second applicant (see paragraph 182). 189. There has accordingly been a violation of Article 8 of the Convention in the present case as regards the second applicant ’ s right to respect for family life. III. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 AND 13 OF THE CONVENTION 190. The applicants also complained that they had neither had access to court nor an effective remedy to complain of a violation of their rights under Articles 3 and 8 of the Convention because of the refusal by the domestic authorities to allow them to pursue criminal proceedings against the first applicant ’ s father for the criminal offence of child abuse. They relied on Article 6 § 1 and Article 13 of the Convention, the relevant parts of which read as follows: Article 6 (right to a fair hearing) “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” Article 13 (right to an effective remedy) “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 191. The Court reiterates that the Convention does not guarantee a right to have criminal proceedings instituted against third persons or to have such persons convicted (see, among many other authorities, Perez v. France [GC], no. 47287/99, § 70, ECHR 2004 ‑ I, and Krzak v. Poland, no. 51515/99, § 24, 6 April 2004). 192. It follows that these complaints are incompatible ratione materiae with the provisions of the Convention within the meaning of its Article 35 § 3 and must be rejected pursuant to Article 35 § 4 thereof. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 193. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 194. The applicants each claimed 20,000 euros (EUR) in respect of non-pecuniary damage. 195. The Government contested that claim. 196. Having regard to all the circumstances of the present case, the Court accepts that the applicants suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the first applicant EUR 19,500, to be paid to her guardian ad litem and held until such time as this sum can be administered by the first applicant herself, and the second applicant EUR 2,500 in respect of non-pecuniary damage, plus any tax that may be chargeable on those amounts. B. Costs and expenses 197. The applicants also claimed HRK 15,625 for costs and expenses incurred before the domestic authorities and HRK 27,578.47 for those incurred before the Court. 198. The Government contested these claims. 199. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicants jointly the sum of EUR 3,600 for the proceedings before the Court, plus any tax that may be chargeable to them. C. Default interest 200. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there had been a violation of Article 3 (prohibition of inhuman and degrading treatment) of the Convention as concerned the State’s failure to investigate promptly the allegations of ill-treatment brought by the mother and child, and that there had been no violation of Article 3 as concerned the child and the State’s duty to protect her from further ill-treatment. It further found that there had been no violation of Article 8 (right to private and family life) of the Convention as concerned the mother and the State’s duty to protect her daughter from further ill-treatment, and that there had been two violations of Article 8 on account of the excessive length of the custody proceedings in respect of both mother and daughter and on account of the daughter’s lack of involvement in the custody decision-making process. The Court noted in particular substantial delays in both the criminal proceedings brought against the father as well as in the custody proceedings, both still pending after more than four years without the child ever having been interviewed in either set of proceedings. The Court was particularly struck by the fact that the child, now 13 and a half, has still not yet been heard in the custody proceedings and has thus not been given the chance to express her view before the courts about which parent she wants to live with. The protracted nature of those proceedings has exacerbated the plight of a traumatised child who, if for nothing else than her parents’ conflicting relationship, has suffered great mental anguish, culminating in self-injuring behaviour.