(Application no. 7198/04)
27 July 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 Iosub Caras v. Romania,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Mr B.M. Zupančič, President,
Mr J. Hedigan,
Mr L. Caflisch,
Mr C. Bîrsan,
Mrs A. Gyulumyan,
Mr E. Myjer,
Mr David Thór Björgvinsson, judges,
and Mr R. Liddell, Section Registrar,
Having deliberated in private on 6 July 2006,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
Subsequently, the first applicant filed for the return of the child, under the Hague Convention (proceedings described under no. 1 below), while the wife filed for divorce and custody of the child with the Romanian courts (proceedings described under no. 2 below).
1. Proceedings for the return of the child
Based on the evidence adduced in the case, the district court found that the retention of the child in Romania was illegal, under Article 3 of the Hague Convention. However, it considered that, due to the political situation in Israel, which had worsened constantly since September 2000, there was a great risk that the return would expose the child to physical or psychological harm. Therefore, in a judgment of 15 April 2002, the district court rejected the request for the return of the child under Article 13 (b) of the Convention.
The court rejected the request for return on the ground that, since the date of the commencement of the Hague proceedings, another Romanian court had ruled on the divorce of the parents and had granted sole custody of the child to the mother, in a final decision of 18 September 2002.
It also considered that, bearing in mind the child’s age, namely two years and four months, her return would be against her interests in so far as she had effectively been living in Romania, with her mother, since she was 7 months old. Lastly, on the basis of witness testimony, the court found it proved that the father had consented initially to remain in Romania and to establish there the domicile for the whole family.
Therefore, the court found that the child had legally resided in Romania since 12 September 2001.
2. Divorce and custody proceedings
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW
1. The Hague Convention on the Civil Aspects of International Child Abduction
“The removal or the retention of a child is to be considered wrongful where
a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. (...)”
“Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention.
In particular, either directly or through any intermediary, they shall take all appropriate measures -
a) to discover the whereabouts of a child who has been wrongfully removed or retained;
b) to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures;
c) to secure the voluntary return of the child or to bring about an amicable resolution of the issues;
d) to exchange, where desirable, information relating to the social background of the child;
e) to provide information of a general character as to the law of their State in connection with the application of the Convention;
f) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access;
g) where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers;
h) to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child;
i) to keep other each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.”
“The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.
If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a reply is received by the Central Authority of the requested State, that Authority shall transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be.”
“Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.
The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.
Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.”
“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that
a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal of retention; or
b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.”
“After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under the Convention is not lodged within a reasonable time following receipt of the notice.”
“The sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention, but the judicial or administrative authorities of the requested State may take account of the reasons for that decision in applying this Convention.”
“The provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time.”
2. Explanatory Report on the 1980 Hague Child Abduction Convention drafted by Elisa Pérez-Vera in 1980
Paragraph 121 of the Explanatory Report on the 1980 Hague Convention comments on Article 16 of the Hague Convention as follows:
“This article, so as to promote the realisation of the Convention’s objectives regarding the return of the child, seeks to prevent a decision on the merits of the right to custody being taken in the State of refuge.”
3. The Code of Civil Procedure
Article 87 § 8
“Unless otherwise provided in a treaty, international convention or special law, persons who are abroad and whose home address abroad is known shall be summoned to appear by registered mail. Article 1141 (4) applies accordingly...
In all cases in which those who are abroad have a known representative in Romania, the latter shall be summoned...”
Article 1141 § 4
“Persons resident abroad... shall be informed [through the summons] of the obligation to establish residence in Romania for the purpose of service of procedural acts. If they do not comply with this requirement, service shall be effected by registered mail, the proof that the letter was presented to a Romanian post office being sufficient evidence that the summoning procedure was respected.”
“The parties [in divorce proceedings] shall be present before the courts ruling on the merits, except where one of the spouses... resides abroad; in the latter situation the parties may participate through a representative.”
I. PRELIMINARY OBJECTION
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
In so far as the custody and divorce proceedings were concerned, the first applicant contested the fact that he had been deprived of his guardianship and visiting rights and of any possibility to participate in the education of his daughter. The absence of any legal documents attesting to the divorce had made it impossible for him to update the civil register, with the risk of being accused of bigamy should he have tried to remarry. He considered that the amount of alimony had been arbitrarily fixed by the courts. He could not pay it and, therefore, risked being imprisoned for non respect of his obligations, should he visit Romania. This prohibited him from seeing his daughter and his parents who were still living in Romania.
Lastly, the first applicant complained, on behalf of his daughter, of a violation of the child’s Article 8 rights by reason of the fact that the two sets of proceedings that took place before the Romanian courts deprived her of the right to see her father and her paternal grandparents and thus to establish normal relations with them.
Article 8 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.”
Lastly, in so far as the divorce proceedings were concerned, they claimed that according to Romanian law, it was in the child’s interest that, in case of divorce, one of the parents was entrusted with the child’s custody. However, the other parent, in this case the first applicant, preserved the right to have personal ties with the child and to watch over her education.
They concluded that no breach of Article 8 had occurred in the case.
1. Proceedings for the return of the child under the Hague Convention
32. The Court reiterates that, although the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities, there are in addition positive obligations inherent in effective “respect” for family life. However, the boundaries between the State’s positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are nonetheless similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, and in both contexts the State enjoys a certain margin of appreciation (see Ignaccolo-Zenide v. Romania, no. 31679/96, § 94, ECHR 2000 I, Iglesias Gil and A.U.I., cited above, § 48 and Sylvester v. Austria, no. 36812/97, 40104/98, § 51, 24 April 2003).
33. The positive obligations imposed on States by Article 8 include taking measures to ensure a parent’s reunification with his or her child (see Ignaccolo-Zenide, cited above, § 94, and Nuutinen v. Finland, no. 32842/96, § 127, ECHR 2000 VIII). The Court has already interpreted these positive obligations in the light of the Hague Convention, Article 7 of which contains a non-exhaustive list of measures to be taken by States in order to secure the prompt return of the child, including the institution of judicial proceedings (see Ignaccolo Zenide, cited above, § 95). The same interpretation can be followed in the present case in so far as, at the material time, Romania was party to the Hague Convention (see Monory, cited above, § 73).
However, in the present case, although the authorities had knowledge of the existence of the divorce proceedings before the Romanian courts, they did nothing to defer the judgment until the Hague proceedings would be finalised, contrary to Article 16 of the Hague Convention.
On this point, the Court recalls that the Ministry acted both as Central Authority under the Hague Convention and as the authority responsible for the international summons procedure in the divorce proceedings. It therefore had knowledge of and to a certain extent participated in both sets of proceedings. Bearing in mind that the Hague Convention is an international instrument binding on States, it is primarily for the States and not for the private individuals to regulate their behaviour in such a way as to ensure respect for this Convention.
This was not the sole argument that led the national jurisdiction to refuse to order the return of the child. The other arguments put forward by the courts, namely the child’s best interest and the evidence that the applicant had consented initially to remain in Romania, constitute an interpretation of the facts and evidence adduced in the case that does not appear to be arbitrary. With the Government, the Court recalls that it is not within the province of the European Court to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for these courts to assess the evidence before them (see, mutatis mutandis, Edwards v. the United Kingdom, judgment of 16 December 1992, Series A no. 247 B, pp. 34-35, § 34; and García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 I).
There has accordingly been a violation of that Article on this account.
2. Divorce and custody proceedings
However, the Court has already held that whilst Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8:
“[W]hat ... has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as “necessary” within the meaning of Article 8.” (see the ... W. v. the United Kingdom judgment [of 8 July 1987, Series A no. 121-A], pp. 28 and 29, §§ 62 and 64, McMichael v. the United Kingdom, judgment of 24 February 1995, Series A no. 307 B, p. 55, § 87 and Ignaccolo Zenide, cited above, § 99).
The facts of the present case indicate that, although he had knowledge, to a certain extent, of the existence of the divorce and custody proceedings, the first applicant did not participate at all in these proceedings and that the judgment of 18 September 2002 was never brought to his knowledge. Moreover, it seems very unlikely, under Article 1141 of the Code of Civil Procedure, that it would have been possible for him to obtain a reopening of the case before the national courts.
3. Other aspects of the Article 8 complaint
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
On behalf of his daughter he also complained that the two sets of proceedings that had taken place before the Romanian courts had deprived her of her right to see her father and her paternal grandparents and thus to establish normal relations with them.
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
48. It further reiterates the difference in the nature of the interests protected by Articles 6 and 8 of the Convention. While Article 6 affords a procedural safeguard, namely the “right to a court” in the determination of one’s “civil rights and obligations”, Article 8 serves the wider purpose of ensuring proper respect for, inter alia, family life. The difference between the purpose pursued by the respective safeguards afforded by Articles 6 and 8 may, in the light of the particular circumstances, justify the examination of the same set of facts under both Articles (see for instance McMichael, cited above, p. 57, § 91 and Sylvester, cited above, § 76).
49. However, in the instant case, the Court finds that the lack of respect for the applicants’ family life resulting from the non-involvement of the first applicant in the divorce and custody proceedings is at the heart of their complaint. Therefore, having regard to its above findings under Article 8 (see paragraph 40 above) and notwithstanding certain misgivings as to the conformity of Article 1141 of the Code of Civil Procedure with the access to court requirement of Article 6 § 1, the Court considers that it is not necessary to examine the facts also under Article 6 (see Sylvester, cited above, § 77).
IV. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
V. ALLEGED VIOLATION OF ARTICLE 5 OF PROTOCOL NO. 7
“Spouses shall enjoy equality of rights and responsibilities of a private law character between them, and in their relations with their children, as to marriage, during marriage and in the event of its dissolution. This Article shall not prevent States from taking such measures as are necessary in the interests of the children.”
VI. 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.”
He further claimed under this head, on behalf of his daughter, EUR 1,364,382, in particular: EUR 300,000 in damages for loss of the Israeli medical care, EUR 9,382 for the monthly allowances that she should have received from the Israeli state, EUR 500,000 for the infringement of the right to enjoy the family life, EUR 195,000 for failure of the Romanian courts to establish visiting rights for her father, EUR 80,000 for the impossibility to see her paternal grandparents, EUR 180,000 of psychological damages, EUR 100,000 for the anguish, distress, depression, loss of joy of life and faith in the family life.
As to the second applicant, the Court considers that the finding of a violation provides sufficient just satisfaction for any non-pecuniary damage she may have suffered as a result of the violation of her Article 8 rights (see Sylvester, cited above, § 80).
Lastly, the Court considers that the remainder of the claims for compensation under Article 41 of the Convention are unsubstantiated.
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the first applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 20,000 (twenty thousand euros) in respect of non-pecuniary damage and EUR 1,500 (one thousand five hundred euros) in respect of costs and expenses, plus any tax that may be chargeable;
(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 27 July 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Liddell Boštjan M. Zupančič
Section Registrar President