(Application no. 35853/04)
12 December 2006
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Bajrami v. Albania,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr G. Bonello,
Mr M. Pellonpää,
Mr K. Traja,
Mr L. Garlicki,
Ms L. Mijović,
Mr J. Šikuta, judges,
and Mr T.L. Early, Section Registrar,
Having deliberated in private on 10 October 2006 and 21 November 2006.
Delivers the following judgment, which was adopted on the last date:
I. THE CIRCUMSTANCES OF THE CASE
1. Divorce and custody proceedings
2. Enforcement proceedings
3. Criminal proceedings for child abduction
4. Criminal proceedings against A.C.
5. Recent developments
II. RELEVANT INTERNATIONAL AND DOMESTIC LAW
A. Relevant international law
1. Hague Convention on the Civil Aspects of International Child Abduction
2. United Nations Convention on the Rights of the Child
3. Bilateral Agreement on Mutual Assistance in Civil and Criminal Matters between Greece and Albania
B. Relevant domestic law and practice
I. THE GOVERNMENT’S PRELIMINARY OBJECTON
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
“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.”
1. The parties’ submissions
2. The Court’s assessment
(a) General principles
(b) Application of the general principles to the present case
64. However, it appears that the applicant’s attempts to inform the authorities of the risk of the child’s abduction had gone unheeded. The Court considers that the applicant’s omission to request an interim measure cannot be taken to absolve the authorities from their obligations in the matter of execution of judgments, since it is they who exercise public authority and have the means at their disposal to overcome problems in the way of execution. Moreover, the applicant could not be blamed for not having addressed requests to the Greek courts since the bilateral agreement on the matter expressively required the involvement of the Ministries of Justice of both countries for the enforcement of custody judgments in their territory (see paragraph 33 above). As noted previously, the Government have not explained to the Court’s satisfaction what measures, if any, they took under that agreement to secure the return of the applicant’s daughter from Greece or at least to trace the whereabouts of F.M.
68. In the circumstances of the instant case, notwithstanding the respondent State’s margin of appreciation in the matter, the Court concludes that the efforts of the Albanian authorities were neither adequate nor effective to discharge their positive obligation under Article 8.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the national currency of the respondent State at the rate applicable on the date of settlement, plus any tax that may be chargeable:
(i) EUR 15,000 (fifteen thousand euros) in respect of non-pecuniary damage;
(ii) EUR 10,000 (ten thousand euros) 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;
Done in English, and notified in writing on 12 December 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza