Last Updated on November 1, 2019 by LawEuro
FOURTH SECTION
DECISION
Application no.53631/16
Ana PUCHEA
against Romania
The European Court of Human Rights (Fourth Section), sitting on 26 February 2019 as a Committee composed of:
Paulo Pinto de Albuquerque, President,
Egidijus Kūris,
Iulia Antoanella Motoc, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above application lodged on 6 September 2016,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Ana Puchea, is a Romanian national who was born in 1970 and lives in Bucharest. She was represented before the Court by Ms D. Pricop, a lawyer practising in Buftea.
2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant was married to R. and in August 2004 a child was born to them. In 2005 the applicant left the marital home. The child remained with R. and the paternal family.
1. Divorce and custody proceedings
5. On 28 January 2008 R. filed for divorce and sole custody of their child.
6. On 22 February 2010 the Bucharest District Court granted the divorce and awarded R. sole custody of the child. The court also established a detailed contact schedule.
7. The decision of 22 February 2010 became final on 21 April 2011, when the Bucharest Court of Appeal dismissed an appeal on points of law lodged by the applicant.
2. Second set of custody proceedings
8. On 18 March 2011 the applicant lodged an application with the Râmnicu Vâlcea District Court for sole custody of the child.
9. On 28 April 2011 the District Court rejected the application, without examining it on the merits, on the grounds that the situation of the parties concerned could not have changed in the short time since the decision of 21 April 2011 (see paragraph 7 above).
10. On 15 June 2011 R. established his and his child’s permanent residence in Germany, where they were still living as at the date of the latest information available to the Court (22 January 2018).
11. The applicant appealed against the decision of 28 April 2011, and on 14 September 2012 the Vâlcea County Court remitted the case to the Râmnicu Vâlcea District Court for retrial. An appeal on points of law lodged by R. was dismissed in a final decision of 10 June 2013 by the Piteşti Court of Appeal. Regarding the question of jurisdiction, which was raised by R., the courts noted that as the child’s residence had been moved to Germany only after the applicant’s action had been lodged, the Romanian courts retained jurisdiction to examine the matter.
12. On 20 November 2014 the Râmnicu Vâlcea District Court ordered shared parental responsibility and ruled that the child’s permanent residence should remain that of her father. The applicant was granted visiting rights, to be exercised both in the child’s hometown in Germany and in Romania. The court based its decision on the evidence, which included witness statements and reports submitted by the legal authorities in both parents’ residence towns. The child, who was heard by the court via Voice Over Internet Protocol, refused any contact with her mother, and was found to harbour feelings of fear and uncertainty as a result of her parents’ extensive litigation in respect of her. The court considered that those feelings might have been caused, at first, by the father, who had opposed any contact between the applicant and the child and who had made no effort to preserve the child’s contact with her mother’s family. The court considered that, despite the father’s negative influence, it was in the child’s interests to remain with him, as he had raised her since her birth and had proved himself capable of taking care of his daughter.
13. Following appeals by the applicant, that decision was upheld by the Vâlcea County Court (on 3 July 2015) and the Pitești Court of Appeal (by a final decision of 10 March 2016). Having regard to the material in the case file, those courts considered that it was in the child’s best interests to remain with the father but to have regular contact with her mother.
14. Throughout the proceedings, the courts sat regularly, at monthly intervals (apart from during the courts’ summer holiday periods), but the hearings had to be postponed on several occasions. Those delays were caused by the need to ascertain whether R. had indeed moved with the child to Germany, as the applicant had contested the truth of that information. R.’s lawyers failed on several occasions to submit the evidence requested by the courts in that respect. On several occasions the hearings were postponed because either R. or the applicant needed time to prepare their respective evidence or to familiarise themselves with the content of each other’s submissions. On a few occasions, the judges requested to be permitted to withdraw from the case as they had already given rulings in respect of earlier proceedings between the parties. The applicant also asked judges to withdraw for various reasons.
3. Requests for interim measures
15. During the second set of custody proceedings (see paragraphs 8-14 above), the applicant lodged several requests for interim measures concerning the scope of her contact rights and the child’s residence during the proceedings. She was also joined as a party to the proceedings by the Vâlcea Directorate for Social Welfare and Child Protection (Direcția de Asistență Socială și Protecția Copilului Vâlcea – hereinafter “the Romanian Child-Protection Authority”), which requested counselling for the parties concerned.
16. On 30 September 2011 the Râmnicu Vâlcea District Court allowed the applicant’s interim request and established a new, slightly extended visiting schedule in her favour. The court also allowed a request lodged by the Romanian Child-Protection Authority and ordered R. to take the child twice a month to the authority’s headquarters in order to enable her to see her mother (in the presence of a child psychologist).
4. The applicant’s attempts to see the child
(a) The Romanian Child-Protection Authority
17. The Romanian Child-Protection Authority became involved in 2005, when R. asked the authority to evaluate his child, who at that time was living with him and the child’s paternal grandparents (see paragraph 4 above).
18. Between March and November 2010 (while the courts were examining the appeals lodged against the first custody decision – see paragraph 6 above), both parents contacted the Romanian Child-Protection Authority – the applicant to seek help in maintaining contact with her child, and R. to complain about abuse allegedly committed by the applicant against their daughter. The Romanian Child-Protection Authority instituted a mediation process between the two parents, but to no avail.
19. On 22 December 2010 the Romanian Child-Protection Authority visited R’s home. A report by the authority on that visit dated 10 January 2011 stated that police intervention had been necessary in order to enable that meeting. The report also noted that the child had refused to see the applicant.
20. The authority continued to accompany the applicant in her efforts to see the child, until R. left the country with her (see paragraph 10 above).
(b) Bailiffs office
21. On 27 July 2011 the applicant lodged a request with the bailiffs office for the enforcement of the decision of 21 April 2011 (see paragraph 7 above). A bailiff visited R.’s home, together with the applicant and police officers, but did not find anyone at home. The bailiff ceased his efforts on 28 November 2011, following the adoption of the decision of 30 September 2011 changing the contact schedule (see paragraph 16 above).
22. On 21 December 2011 the applicant lodged an application with the bailiff’s office seeking the enforcement of the interim decision of 30 September 2011 (see paragraph 16 above). On 14 February 2012 R. lodged an objection (contestație la executare) against the measures being undertaken by the bailiff. He argued mainly that as he had moved to Germany with his daughter, it was impossible for the bailiff to enforce the decision. On 24 May 2012 the Râmnicu Vâlcea District Court dismissed the objection.
23. It appears that all efforts to enable the applicant (with the help of the bailiff) to meet her child failed.
(c) Criminal complaints
24. After each failed attempt to see her child, the applicant lodged a criminal complaint against R., accusing him of refusing to comply with a court order. Fourteen such complaints, lodged between 20 February 2011 and 21 January 2012, were examined by the Vâlcea County Police Department.
25. The prosecutor’s office attached to the Vâlcea District Court dismissed the complaints, either because both parents had agreed to respect the contact schedule (under a decision of 8 September 2010) or because R.’s actions were not considered sufficiently serious as to engage his criminal responsibility (under a decision of 30 October 2012, by which R. was given an administrative fine of 1,000 Romanian Lei (RON)).
(d) Ministry of Justice
26. On 16 July 2012 the applicant contacted the Ministry of Justice, complaining that R. had removed the child from the country and seeking her return under the provisions of the 25 October 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”). On 19 July 2012 the Romanian Ministry of Justice advised the applicant of the possibility to initiate enforcement proceedings in Germany in respect of the custody orders.
27. On 1 October 2012, the Ministry of Justice informed the applicant that, according to the documents submitted, the child had been removed from Romania at a time when R. had had exclusive custody and that at that time (that is to say as at 1 October 2012) the child resided permanently in Germany. Accordingly, the Ministry warned the applicant that her request that the child be returned to Romania was unfounded under the Hague Convention. The applicant did not pursue the Hague proceedings.
28. On 12 December 2016 the applicant informed the Court that she had just started proceedings in Germany seeking enforcement of the decision of 20 November 2014 (see paragraph 12 above).
B. Relevant domestic law
29. The relevant provisions of the Code of Civil Procedure concerning the procedure for the enforcement of court orders concerning minors is set out in Niţă v. Romania ([Committee], no. 30305/16, §§ 27-30, 3 July 2018).
COMPLAINTS
30. Relying on Article 8 of the Convention, the applicant complained that the national authorities had failed to adopt the necessary measures to protect her relationship with her daughter.
31. Under Article 6 of the Convention, the applicant complained about the length of the second set of custody proceedings, which had lasted from 18 March 2011 (see paragraph 8 above) until 10 March 2016 (see paragraph 13 above) at three levels of jurisdiction.
THE LAW
32. Relying on Articles 6 and 8 of the Convention, the applicant complained that her right to respect for family life had been breached because of the authorities’ failure to adequately respond to her family situation and in the light of the overall length of the second set of custody proceedings.
33. The Court, which is master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v.Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), will examine the complaint from the standpoint of Article8 alone (see, for example and mutatis mutandis, Manuello and Neviv. Italy, no. 107/10, § 32, 20 January 2015).
This provision reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
A. The parties’ observations
1. The Government
34. The Government argued that the applicant could not claim to be a victim in so far as her complaint concerned the enforcement of the decisions of 22February 2010 (see paragraph 6 above) and 30 September 2011 (see paragraph 16 above). Indeed, the latter could no longer be enforced, having been replaced by the decision of 10 March 2016 (see paragraph13 above).
35. The Government furthermore contended that, with the exception of the proceedings giving rise to the decision of 10 March 2016, all the other proceedings – court proceedings and enforcement proceedings alike – had ended more than six months before the date on which the application had been lodged with the Court. They argued that the Romanian authorities could not be held responsible for the non-enforcement of the decision of 20 November 2014 (which had become final on 10 March 2016 – see paragraphs 12 and 13 above), as the enforcement had had to be undertaken by the Child-Protection Authority of Germany, where R. had been living at that time.
36. They considered that the Romanian authorities had done everything within their power to assist the applicant in exercising her contact rights, and in swiftly deciding on the custody matter. In their view, any delays caused in the proceedings were imputable not to the authorities, but to the applicant’s own actions (or lack thereof) and to the child’s living abroad.
2. The applicant
37. The applicant argued that she had been deprived of contact with her daughter because of R.’s opposition and the authorities’ failure to take appropriate and prompt measures to assist her.
B. The Court’s assessment
38. The Court notes at the outset that the Government have raised objections according to which the applicant lacked of victim status and part of the application was lodged out of time (see paragraphs 34-35 above). However, the Court does not consider it necessary to examine these objections, as the application is, in any event, manifestly ill-founded for the following reasons.
39. The relevant principles regarding interference with the right to respect for family life and the State’s positive obligations under Article 8 of the Convention in cases concerning the enforcement of contact rights are summarised in M. and M. v. Croatia (no. 10161/13, §§ 176-181, ECHR 2015 (extracts)) and K.B. and Others v. Croatia (no. 36216/13, §§ 142-144, 14 March 2017).
40. The Court observes that on 21 April 2011 the applicant lost custody of her daughter but retained her right to maintain personal relations with her (see paragraph 7 above). She contested both the custody arrangements (see paragraph 12 above) and the efficiency of the authority’s assistance in the enforcement of her contact rights.
41. It is indisputable that, following the court decision of 21 April 2011, the authorities were under a duty to take measures with a view to facilitating the exercise of the applicant’s contact rights. This amounts to a “continuous situation”, and the Court will assess it accordingly (see, mutatis mutandis, Iordache v. Romania, no. 6817/02, § 66, 14 October 2008).
42. The Court reiterates, first of all, that in a case of this kind, the adequacy of a measure is to be judged by the swiftness of its implementation (see, among many other cases,Ignaccolo-Zenide v. Romania, no. 31679/96, § 102, ECHR 2000-I). Moreover, the duration of proceedings concerning children takes on a particular significance, because there is always a danger that any procedural delay will result in the de facto determination of the issue before the court (see H. v. the United Kingdom, 8 July 1987, §§ 89-90, Series A no. 120, and P.F.v. Poland, no. 2210/12, § 56, 16 September 2014).
43. In this context, the Court notes, first of all, that the proceedings initiated by the applicant in order to have the custody arrangement reassessed started on 18 March 2011 and ended on 10 March 2016 (see paragraph 31 above) – a period of five years. During that period, the case was examined by six courts at three levels of jurisdiction. While this length might seem problematic in the light of the subject matter of the dispute, the Court notes that, at that time, there was no uncertainty as to the child’s legal situation – the domestic courts concerned themselves simply with attributing custody rights to the father by means of a final and enforceable decision, and the applicant was able to seek enforcement of the contact schedule set by the courts (see paragraph 7 above; also contrast E.S.v. Romania and Bulgaria, no. 60281/11, § 64, 19 July 2016). In addition, during the second set of custody proceedings, the courts examined swiftly the interim request lodged by the applicant for a new, extended contact schedule (see paragraph 16 above; also contrast Eberhard and M. v. Slovenia, nos. 8673/05 and 9733/05, §139, 1 December 2009). The Court also observes that throughout these proceedings there were no periods of inactivity imputable to the authorities (see paragraph 14 above).
44. The Court will continue to examine whether the authorities did what could reasonably be expected from them in order to assist the applicant in her efforts to see the child. On this point the Court notes at the outset that the child’s residence was moved to Germany on 15 June 2011 (see paragraph 10 above). This act, which was acknowledged and considered legitimate by the domestic authorities (see paragraphs 10 and 27 above), removed the enforcement proceedings from the Romanian authorities’ jurisdiction. The Ministry of Justice assisted the applicant and without delay advised her to seek enforcement in Germany (see paragraph26 above). The Court notes that the applicant took the Ministry of Justice’s advice and eventually started enforcement proceedings in Germany (see paragraph 28 above).
45. As for the period before the change of jurisdiction, and regardless of whether or not the Romanian Child-Protection Authority had jurisdiction to examine the allegations, the Court notes that from as early as 2005 (that is to say before the custody decision became final on 21April 2011 – see paragraph 7 above), the Romanian Child-Protection Authority supported the parents, intervening through mediation, counselling, and facilitating visits (see paragraphs 17 to 19 and 16 in fine above). The bailiff’s office also assisted the applicant in her efforts to secure the enforcement of the contact orders (see paragraphs 21 and 22 above). On each occasion, the authority acted promptly. The applicant, however, waited for a few months before lodging her requests for enforcement with the bailiff’s office. Notably, enforcement of the decision of 21 April 2011 was sought on 27 July 2011, while it was not until 21 December 2011 that she requested enforcement of the interim decision of 30 September 2011.
46. The Court furthermore notes that the applicant was able to use the means put at her disposal by the State to gain access to her child’. In particular, the domestic courts, bearing in mind the child’s best interests, eventually reassessed the custody arrangements and awarded both parents joint custody of the child (see paragraph 12 above).
47. The Court notes that, despite the authorities’ efforts, the applicant remained unable to see her daughter on a regular basis. Moreover, the child expressly stated that she refused any contact with her mother (see paragraphs 12 and 19 above). Nevertheless, the Court reiterates that the authorities’ duty to take measures to facilitate reunion is not absolute and the impossibility of enforcing the court orders cannot lead automatically to the conclusion that there was a failure to comply with their positive obligations (see Mihailova v. Bulgaria, no. 35978/02, § 82, 12 January 2006, and Nuutinen v. Finland, no. 32842/96, § 128, ECHR 2000-VIII). It therefore cannot hold the State responsible, as such, for this outcome.
48. In this context, reiterating that the State’s obligation to take positive measures to facilitate contact is not one of results but one of means (seeRăileanu v. Romania(dec.), no.67304/12, § 42, 2 June 2015, with further references), the Court concludes that the national authorities have taken all necessary steps to facilitate the exercise of contact rights that could reasonably be expected from them given the specific circumstances of the case.
49. For these reasons, and in the light of all the material in its possession and in so far as the matters complained of are within its jurisdiction, the Court finds that they do not disclose any appearance of a violation of Article 8 of the Convention.
50. Accordingly, the application is manifestly ill-founded and must be rejected, in accordance with Article 35 §§3(a) and4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 21 March 2019.
Andrea Tamietti Paulo Pinto de Albuquerque
Deputy Registrar President
Leave a Reply