State Attorney v CI

Abstract

By the first-instance judgment of the Municipal Court in Dubrovnik, Kzd-21/2023-10 of 24 September 2024, the accused, CI, was found guilty of the criminal offence against marriage, family and children of child abduction under Article 174(1) and (4) and was sentenced to ten months’ imprisonment. The court suspended the sentence, ordering that it would not be enforced provided that she did not commit another criminal offence during a probationary period of three years from the date on which the judgment became final. That decision was based on the fact that the mother, despite being aware that, by the final and enforceable judgment of the Basic Court in Podgorica, Montenegro, P 6190/16 of 15 December 2017, which was recognised by the decision of the Municipal Court in Dubrovnik, case no. R1-35/18 of 6 April 2018, custody of the child, ZI, had been awarded to the father, R.I., with whom the child was to reside, prevented the child, ZI, from living with the father from 7 October 2028 onwards. Between 21 and 24 October 2018, she kept the child at an unknown location in Podgorica, where she was subsequently located and arrested, and the child was handed over to the father. Thereafter, on 4 November 2018, during a contact visit in Montenegro, she removed the child from the child’s place of residence and took the child to the Republic of Croatia, failing to return the child to the father until 14 September 2024.

The accused, CI, appealed against that judgment on the grounds of a material violation of criminal law and challenged the decisions on the sentence and the costs of the proceedings. The second-instance court considered that the first-instance court had incorrectly concluded that it had been proved that the accused had committed the criminal offence with which she was charged and had consequently found her guilty and imposed a sentence.

It held that the first-instance court had incorrectly assessed the evidence, when it found that the accused, as a parent, had removed the child from the parent to whom the child had been entrusted, unlawfully retained the child, and prevented the child from living with that parent, with the intention of keeping the child permanently, thereby committing the criminal offence under Article 174(4) of the Criminal Code.
The second-instance court considered that the accused was correct in arguing that the charge lacked an essential element, namely intentional conduct. It held that, in the circumstances of the present case, the accused had not acted with intent, which is a constituent element of the criminal offence.

The court further explained that, by the judgment delivered in Montenegro, P-6190/16 of 15 December 2017, the marriage between the accused and the injured party had been dissolved and their minor son had been entrusted to the father, R.I., for care and upbringing. It was further established that the minor, Z.I., had been living with his mother in Dubrovnik since December 2017. It was also established that, after the judgment P-6190/16 of 15 December 2017 became final, the accused instituted proceedings before the competent authorities in Montenegro seeking a variation of the decision on parental responsibility, but no decision had been rendered on that application.

On 3 April 2018, the father submitted an application to the Municipal Court in Dubrovnik under the Hague Convention on the Civil Aspects of International Child Abduction, seeking the return of the child to Montenegro. By its decision in case no. R1 Ob-66/19, the court determined that the child should remain in Dubrovnik with the mother. The reasoning shows that the court relied on Article 13(1) of the Hague Child Abduction Convention, emphasising that returning the child to Montenegro would not be beneficial or in the child’s best interests, given that the child had become integrated into the community in Dubrovnik, where the child lived and attended school, and that two years had elapsed between the wrongful removal and the date on which the court’s decision became final.

The reasoning also referred to a report by the Dubrovnik Social Welfare Centre. During an interview, the minor child, ZI, stated that, while in Montenegro in the summer of 2018, he had felt both sad and happy: sad because he would not see his mother, and happy because he would see his friends. He stated that, after leaving Montenegro, he missed his grandmother, sister, brother, father and friends the most. He also said that he did not understand why his father could not accept that he wished to live with his mother. However, he would most prefer to live with his mother in Montenegro while being able to see his father, grandmother, sister and brother, and he would be happy if his parents could reach an agreement on all matters concerning him.

Finally the second-instance court concluded that the mother, did not act with the intention of removing the child from the parent to whom the child had been entrusted, unlawfully retaining the child, preventing the child from living with that parent, or permanently keeping the child.