Last Updated on April 4, 2023 by LawEuro
SECOND SECTION
CASE OF BOCŞA v. THE REPUBLIC OF MOLDOVA
(Application no. 6147/18)
JUDGMENT
STRASBOURG
4 April 2023
This judgment is final but it may be subject to editorial revision.
In the case of Bocşa v. the Republic of Moldova,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Jovan Ilievski, President,
Lorraine Schembri Orland,
Diana Sârcu, judges,
and Dorothee von Arnim, Deputy Section Registrar,
Having regard to:
the application (no. 6147/18) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 19 January 2018 by a Moldovan national, Mr Vitalie Bocşa (“the applicant”), born in 1978 and living in Chișinău, who was represented by Mr A. Cotună, a lawyer practising in Chișinău;
the decision to give notice of the complaint concerning Article 8 of the Convention to the Moldovan Government (“the Government”), represented by their Agent, Mr O. Rotari, and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 14 March 2023,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The case concerns the non-enforcement of a court decision setting the contact schedule between the applicant and his children, which amounted to the factual withdrawal of his contact rights. The applicant relied on Article 8 of the Convention.
2. Specifically, in 2010 the applicant’s spouse, G., initiated divorce proceedings and sought custody of their two children born in 2006. In 2013 a court granted their divorce and awarded G. custody of their two children by a final decision.
3. On 15 December 2011 the Municipal Child Protection Department (“child protection authority”) approved a contact schedule, which was reviewed at the applicant’s request in 2012 and 2013. After G. had contested the last changes to the schedule in court, on 5 June 2014 the Botanica District Court endorsed the parties’ friendly settlement on a new schedule, which read as follows:
“[the applicant] will take the [children] from the mother’s residence on [certain days] … and will bring them back [at a certain time]… During school holidays, the children will spend equal time with each parent, based on the preliminary agreement between the parents”.
4. In 2016 and 2017 the applicant lodged various complaints concerning the non‑enforcement of the approved contact schedule, including with the police, the prosecutor’s office and the child protection authority. In reply, the police informed the applicant that contact had not been possible on various occasions either because the children were unavailable due to medical issues or because the children had refused to see the applicant, and that the child protection authority had been requested to intervene. In respect of the schedule’s non‑enforcement, the police advised the applicant to contact a judicial bailiff.
5. On 10 November 2016 the prosecutor dismissed the applicant’s allegations of the children’s mistreatment by G. and her partner. The prosecutor’s decision cited, among other things, G.’s statements that she had not opposed the applicant’s contact with the children.
6. On 14 March 2017 the child protection authority informed the applicant that it held no competence to oversee the respect by the parents of a child’s right to communicate with the non-custodial parent and redirected the applicant to the judicial bailiff.
7. Upon the applicant’s request, on 30 May 2016 a judicial bailiff initiated formal enforcement proceedings. In 2016-2017 the bailiff drew up at least eight reports concerning either G.’s absence from home at the time of the applicant’s contact hours or the applicant’s inability to take the children due to their illness or their unwillingness to meet their father. The reports of 18 November and 2 December 2016 explicitly stated that G. had not opposed the applicant’s taking the children if they agreed to the visit.
8. On 21 November 2016 and on 23 March 2017 respectively the Chișinău Court of Appeal approved by a final decision the bailiff’s requests to bring G. by force before the bailiff and to prohibit G. from travelling outside the country. On 25 May 2017 the bailiff sought to initiate administrative offence proceedings in respect of G. for failure to enforce the final decision of 2014.
9. On 27 June 2017 the Chișinău Court of Appeal, by a final decision, upheld G.’s appeal against the bailiff’s decision of 30 May 2016 to initiate enforcement proceedings. The court concluded that the settlement endorsed by the court on 5 June 2014 referred to the applicant “taking” the children from the mother’s residence but contained no corresponding obligation for G. to “give” the children to the applicant. For this reason, the court found that the court decision of 5 June 2014 was “an amorphous enforcement document” which could not be enforced.
10. On 6 November 2017 the judicial bailiff discontinued the enforcement proceedings, noting the impossibility of pursuing the enforcement.
11. In the meantime, on 7 July 2017 G. initiated court proceedings seeking the annulment of the contact schedule. She submitted that the applicant had not respected the conditions of the schedule endorsed on 5 June 2014, that since September 2016 the children had refused to see their father due to his aggressive behaviour and, given that they had turned ten in December 2016, their views were to be taken into consideration. Her claims were rejected on procedural grounds by a final decision on 17 November 2021.
12. In the proceedings before the Court, the Government submitted a medical report from 2011 which assessed the injuries G. had sustained allegedly at the applicant’s hands and two psychological reports from 2011 and 2012 according to which the applicant’s children were adversely affected by the scenes of domestic violence which they had witnessed. The Government also submitted psychological assessment reports carried out by a doctor in October 2016, according to which the children had expressed their wish to cease contact with the applicant, among other things because he was violent. In particular, the children referred to incidents of violence such as occasions when the applicant had allegedly beaten them with a belt, shut them in the toilet in the dark or behaved aggressively towards G.’s partner. An assessment carried out by the children’s school psychologist during the same period concluded that the children had a negative attitude towards their father and were anxious about being in contact with him. The Government also submitted that since November 2016 the applicant’s children had been enrolled in a psychological assistance programme with the NGO “Memoria”.
THE COURT’S ASSESSMENT
ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
13. The applicant complained that the authorities had failed to ensure his contact rights with his children despite the final court judgment endorsing a contact schedule.
14. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.
15. The relevant principles regarding the State’s positive obligation under Article 8 of the Convention in cases concerning the enforcement of contact rights are summarised in the cases of K.B. and Others v. Croatia (no. 36216/13, §§ 142-44, 14 March 2017) and Pisică v. the Republic of Moldova (no. 23641/17, §§ 63-66, 29 October 2019). To sum up, Article 8 requires that the domestic authorities should strike a fair balance between the interests of the child and those of the parents and that, in the balancing process, particular importance should be attached to the best interests of the child which, depending on their nature and seriousness, may override those of the parents. In particular, a parent cannot be entitled under Article 8 to have such measures taken as would harm the child’s health and development (see Sommerfeld v. Germany [GC], no. 31871/96, § 64, ECHR 2003-VIII (extracts); and Širvinskas v. Lithuania, no. 21243/17, § 95, 23 July 2019). The obligation of the national authorities to take measures to facilitate contact by a non‑custodial parent with children after divorce is not absolute. The key consideration is whether those authorities have taken all the steps necessary to facilitate contact as can reasonably be required of them in the particular circumstances of each case (see also Krasicki v. Poland, no. 17254/11, §§ 86‑87, 15 April 2014).
16. Without substituting itself for the domestic authorities, which have had the benefit of direct contact with all the persons concerned, the Court will review, in the light of the Convention, the decisions taken by them in the exercise of their margin of appreciation. This requires the Court to focus on whether, taking into consideration the case as a whole and having regard to the crucial importance of the child’s best interests, the reasons adduced to justify the measure were relevant and sufficient (Sommerfeld, cited above, § 62; and Krasicki, cited above, § 84).
17. At the outset the Court notes that the applicant’s contact rights are provided for in the final decision of 5 June 2014, which formally remains in force to date, unreplaced by another decision on contact rights taken either by the child protection authority or by another court. It is undisputed that the applicant had difficulties enforcing these contact rights as early as April 2016 and that after the judgment of the Chișinău Court of Appeal of 27 June 2017, which had concluded the non-enforceable nature of the 2014 decision, his contact rights were factually withdrawn.
18. The Court notes that the only reason advanced by the domestic authorities for this factual withdrawal was the impossibility of enforcing the 2014 judgment due to its unfortunate formulation of duties. The Court considers that this is a rather formalistic approach which neglects the main issue at stake – the lack of cooperation between separated parents, which imposes on the authorities an obligation to take measures to reconcile the conflicting interests of the parties, keeping in mind the paramount interests of the child (see Suur v. Estonia, no. 41736/18, § 76, 20 October 2020).
19. In determining whether the authorities have taken all the steps necessary to facilitate contact as can reasonably be required of them, the Court notes that the applicant and the police sought the involvement of the child protection authority but the Government did not inform the Court about any action undertaken by this authority in reply to those requests for intervention (see paragraph 4 above). There does not appear to have been any attempt to provide any mediation for the parents or to secure contact between the applicant and his children in the presence and with the support of child protection specialists. The Court finds it particularly striking that the child protection authority, by their letter of 14 March 2017, declined responsibility and involvement in the applicant’s case altogether (see paragraph 6 above).
20. Before this Court, the Government advanced other reasons for the factual withdrawal of the applicant’s contact rights: the strong resistance of the children and the applicant’s alleged violent conduct in respect of the children. The Court notes at the outset that these reasons are pertinent but they were advanced at domestic level for the first time in July 2017 when G. challenged the contact schedule (see paragraph 11 above) and have never been assessed on their merits.
21. Despite the psychological reports which argued that the children had already been adversely affected by their father’s behaviour two-three years earlier (see paragraph 12 above), there is nothing in the case file to indicate that the children were reluctant to meet their father when the contact schedule had been agreed between the parents in 2014 until the stage of enforcement proceedings in 2016.
22. However, even when such reluctance eventually developed, it does not appear that this element was assessed by the authorities as justifying the non‑enforcement of the judgment of 5 June 2014. In particular, when the courts concluded in 2017 that the contact schedule was not enforceable they relied on the wording of the agreement but not on the alleged danger the applicant would have posed to his children (see paragraph 9 above).
23. The Government did not inform the Court about any official investigation or assessment of the causes of the children’s resistance, which could also have addressed the allegations made by the children to psychologists about the applicant’s violent behaviour towards them. If the national authorities considered, as alleged by the Government, that the children’s contact with the applicant was contrary to their best interests, the Government did not inform the Court of any decision‑making process, with or without the applicant’s participation, which would have assessed the threat the applicant had allegedly posed and determined whether it was in the children’s best interests to restrict partially or completely their contact with the applicant.
24. The gravity of the allegations about the applicant’s violent behaviour in respect of the children (see paragraph 12 above) strongly contrasts with the passivity of the child protection authority (see paragraph 6 above). The Court further takes note of the mother’s initial statements that she would not oppose contact if the children themselves agreed to it and her attempt to cancel the applicant’s contact rights over a year later (see paragraphs 5, 7 and 11 above). The Court is not in a position to assess the genuineness of the allegations made or to clarify the discrepancies between them. However, their gravity and implications for the children’s best interests, on the one hand, and on the applicant’s contact rights, on the other hand, required that they be addressed in a proper decision-making process concerning parental contact, which should have been fair and should have involved the applicant to a degree sufficient to provide him with the requisite protection of his interests (compare also Širvinskas, cited above, § 96; and Krasicki, cited above, § 86). The Court finds it striking that no consideration of these elements occurred at domestic level, by the child protection authorities and by the courts.
25. For this reason, the Court concludes that by withdrawing the applicant’s contact rights in the absence notably of any fair decision-making process, the domestic authorities failed to discharge their positive obligation under Article 8.
26. There has accordingly been a violation of Article 8 of the Convention.
APPLICATION OF ARTICLE 41 OF THE CONVENTION
27. The applicant claimed 18,000 euros (EUR) in respect of non‑pecuniary damage, EUR 1,188.11 in respect of costs and expenses incurred before the domestic courts and EUR 1,387.32 for those incurred before the Court. The applicant submitted receipts for payments made to the judicial bailiff, his lawyers and for translation services.
28. The Government argued that the applicant’s claims were excessive and unsubstantiated. In particular, they noted that there was no causal link between the costs incurred in the domestic courts and the proceedings at issue in the present case because those costs referred to the proceedings concerning the change of the children’s residence and G.’s request to annul the visiting schedule.
29. The Court awards the applicant EUR 4,500 in respect of non‑pecuniary damage, plus any tax that may be chargeable.
30. Having regard to the documents in its possession, the Court considers it reasonable to award EUR 2,500 covering costs under all heads, plus any tax that may be chargeable to him.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;
2. Holds that there has been a violation of Article 8 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 4,500 (four thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 4 April 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Dorothee von Arnim Jovan Ilievski
Deputy Registrar President
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