United Nations A/HRC/44/NGO/12

General Assembly Distr.: General

29 June 2020

English only

Human Rights Council

Forty-fourth session
15 June–3 July 2020
Agenda item 3
Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development

Written statement* submitted by Coordination des

Associations et des Particuliers pour la Liberté de
Conscience, a non-governmental organization in special
consultative status
The Secretary-General has received the following written statement which is
circulated in accordance with Economic and Social Council resolution 1996/31.
[27 May 2020]

* Issued as received, in the language(s) of submission only.

GE.20-08552(E)

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Croatia: Discrimination based on ethnicity and disregard for

the best interest of a child
Mr. Dalibor Močević, a Croatian citizen of Serb descent, claims he is discriminated against
by the administration and the judiciary in Croatia in a child custody case following his
divorce because of his Serb origin.

Political background of the discrimination by the judiciary

Twenty-five years after the end of Croatia’s war for independence from Serbia, many Serbs
living in Croatia go on complaining about the discriminatory treatment of their cases in courts
by the judiciary.
Thousands of Serbs were displaced by the conflict until de mid-1990s. They were then
illegally dispossessed of their property by the Croatian authorities on the basis of a
controversial law on the “Temporary Takeover and Administration of Specified Property”
passed at the end of summer 1995 but condemned by the Organization for Security and Co-
operation in Europe (OSCE). Their houses and apartments were then given to displaced
Croats and could never be restituted to their legitimate owners through the Croat court
system. Anti-Serb sentiments and discrimination by the Croat administration and the
judiciary have not disappeared since.
In 2018, the European Commission on Racism and Intolerance (ECRI) of the Council of
Europe (CoE), expressed alarm over the rise of right-wing extremism and anti-Serb hostility
in its fifth report about Croatia, the first of the seven Western Balkans countries to join
the European Union (EU).

The facts

Mr. Močević was married with Ž. Š. from Našice in the period from 1 January 2003 until 26
August 2006. The alcoholism of his wife was one of the reasons for the divorce. A son, I.M,
was born from this marriage in February 2007.
On 17 June 2008, the Municipal Court in Našice ruled that I.M was to be entrusted to the
care of his mother. Mr. Močević was unable to get a shared custody and even visiting rights
from the court. He strongly believes that the decision was motivated by his Serb background.
In January 2010, the Našice Municipal Court entrusted the child to the care of his maternal
grandparents, living at the same address, upon request of the Center for Social Welfare Našice
because of the alcoholism and psychiatric problems of the mother. Mr. Močević was not
informed or notified that such a legal process was in progress although his address was known
by the court. Again, he thinks that it is because of his Serb origin.
Mr. Močević only became aware of this development much later. On 20 December 2010, he
filed a request for custody of his son with the Našice Municipal Court because he wanted to
preserve his son from any physical and psychological damage. The mother was opposed to
such a proposal. In January 2011, the Municipal Court of Našice restored the care of I.M. to
the mother and allowed the father to see his son once a month for 10-12 hours in Našice.
Mr. Močević appealed the decision, referring to his rights under the Family Law.
In accordance with the provisions of the Family Law, if one parent is unable to care for a
child, then this obligation is taken over by another parent, and only if he or she is unable to
care, the child can be entrusted to another person.
On 10 March 2011, the Osijek County Court overturned the first instance ruling and
remanded the case for retrial. The County Court ruled that the disputed decision was taken in
violation of the right to a fair trial because the father was not allowed to participate.
Mr. Dalibor Močević proposed to conduct a psychiatric examination of the mother because
he claimed that the child was under constant and chronic stress when he was with her. Instead,
the court ordered a psychiatric examination of Mr. Močević, who had no history of mental

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illness or any dependencies. Again, Mr. Močević considers that this was due to anti-Serb
sentiments.
In 2017 Mr. Močević’s ex-wife abandoned her son and left Croatia to an unknown
destination. A year later she was extradited from Austria where she lived as a homeless
person, mentally unstable and alcoholic. In early 2019 the Municipal court in Đakovo
initiated new proceedings about the custody of I.M. Although the mother had abandoned her
child, the family court judge Ankica Wolf ignored all evidence against the mother and denied
Mr. Močević the custody of his son. All requests Mr. Močević made in 2019 for the exclusion
from the proceedings of the judge and the president of the court in Đakovo as well as the
transfer of the jurisdiction to another court were either rejected or left without any decision
by the Supreme Court of Croatia. The child is living for over 10 years now in a state of mental
anguish. Mr. Močević is convinced that judges do not want to give the custody of his son
because he is of Serb descent.

Legal analysis

By decision of the Municipal Court in Našice to grant the sole custody of I.M. to his mother
although she was under treatment for alcoholism and was suffering from personality disorder,
the Croatian authorities did not act in the interest of the child and violated Mr. Močevič’s
right to respect for his family life, as guaranteed by Article 8 § 2 of the European Convention
and the Convention on the Rights of the Child.
The Convention entered into force on 2 September 1990 and has been ratified by 191
countries, including Croatia. The Convention spells out the basic human rights that children
have everywhere – without any discrimination – : the right to survival; the right to develop
to the fullest; the right to be protected from harmful influences, abuse and exploitation etc.
In the present case the courts didn't act in accordance with the child's best interest. Their
decision was based on an 18-month-old report from the psychiatric hospital that treated
Mr. Močević’s former wife. Moreover, the disputed procedure was not supported by relevant
and sufficient reasons to justify such interference in Mr. Močević's family life.
Therefore the court's decision did not correspond to any overriding requirement in the child’s
best interests. On the contrary, it clearly endangered such interest, in such a way that the
national authorities overstepped their margin of appreciation when they granted the sole
custody to a mentally unstable person. It thereby violated Mr. Močevićs’ rights under Articles
2 and 14 of the United Nations International Covenant on Civil and Political Rights, as well
as Article 26 of the same Covenant, that forbids any discrimination based on national or
social origin.
The behavior of the Family Court in Našice is also in complete breach of Articles 2, 3 and 9
of the Convention on the Rights of the Child
Mr. Močević’s right to a fair trial was also violated because the court excluded him from
most of the custody trial and failed to guarantee his constitutional right to equality before
courts and other state bodies. Moreover, the biased decisions of judge Ankica Wolf, based
on his ethnic origin according to Mr. Močević, caused systematic and continuous damage to
the best interest of the child.
In addition to this, the expertise was entrusted to an expert who is not specialized in children’s
psychology, despite Mr. Močević's arguments. Moreover, the court did not need to carry out
a psychiatric evaluation of the father as he has no history of any mental or psychiatric
problems, unlike the mother to whom the court entrusted sole custody of the child. In
addition, Mr. Močević was discriminated against on the basis of his professional activities
since it was alleged that as a seaman he could not have had frequent contacts with the child.
In the divorce proceedings, the courts and the Center for Social Welfare were acting with
obvious bias and prejudice and prevented Mr. Močević from having a regular contact with
his son.

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These troubles have an obvious political connotation but they continue unhindered despite
the domestic and international legal obligations of Croatia, which is currently chairing
the EU.
These obligations in the case of Mr. Dalobor Močević have not only been unfulfilled by
Croatia, but they have been actively undermined due to the persistent anti-Serb climate
maintained by nationalist and extreme-right groups.

Conclusions

Mr. Močević insists that he was repeatedly denied justice because of his Serb origin. As a
result, the Croatian courts and administration have not acted in the interest of his son. His
lawyer also shares the view that other Serbs in Croatia are discriminated against due to
various personal or institutional collusions between some judges, political figures and
extreme nationalists.