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DEAK v. ROMANIA AND THE UNITED KINGDOM - 19055/05 [2008] ECHR 476 (3 June 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/476.html
Cite as:
[2008] ECHR 476,
[2008] Fam Law 828,
[2008] 2 FLR 994,
(2008) 47 EHRR 50
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THIRD
SECTION
CASE OF DEAK v. ROMANIA AND THE UNITED KINGDOM
(Application
no. 19055/05)
JUDGMENT
STRASBOURG
3 June
2008
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 Deak v. Romania and the United Kingdom,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Elisabet Fura-Sandström,
Nicolas
Bratza,
Corneliu Bîrsan,
Boštjan
M. Zupančič,
Egbert Myjer,
Ineta
Ziemele, judges,
and Santiago
Quesada, Section
Registrar,
Having
deliberated in private on 13 May 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 19055/05) against Romania and
the United Kingdom lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Romanian national, Mr
Andrei Deak (“the applicant”), on 24 May 2005.
The
applicant was represented by Ms D. Dragomir, a lawyer practising in
Bucharest. The Romanian Government were represented by their Agent at
the time, Ms Ruxandra Pasoi, and the United Kingdom's Government were
represented by their Agent, Ms Emily Willmott.
The
applicant alleged, in particular, a breach of his rights guaranteed
by Article 6 and Article 8 of the Convention.
On
16 March 2007 the Court decided to give notice of the application to
the respondent Governments. Under the provisions of Article 29 §
3 of the Convention, it decided to examine the merits of the
application at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant, Mr Andrei Deak, is a Romanian national who was born in
1956 and lives in Bucharest.
The
applicant married C.D. (hereinafter referred to as “the
mother”), also a Romanian national, in January 1998. In July
1998 their son C.A. (hereinafter referred to as “the child”)
was born.
In November 2000 they divorced and according to the
divorce agreement between them, endorsed by a final court judgment,
the mother was to have custody of the child, while the applicant
obtained a right of access of 82 days per year and was to pay a
monthly allowance.
In
September 2002 the mother travelled to England to commence studying
for a Master degree in Business and Administration and left the child
in Romania with her parents.
In
November 2002 the mother married a British national. She later
returned to Romania and on 23 December 2002, without informing the
applicant, took the child with her to London.
The
applicant found out about the child's removal from Romania to the
United Kingdom in January 2003.
On
6 February 2003 he instituted proceedings in London before the High
Court of Justice, Family Division (“the High Court”),
under the Hague Convention of 25 October 1980 on the Civil
Aspects of International Child Abduction (“the Hague
Convention”). The child and the mother were located by the
British authorities; however, their place of residence was not
disclosed to the applicant.
A
directions hearing was held on 27 February 2003 before the High Court
at which the parties were requested to file observations on the
question whether the removal of the child from Romania was wrongful
under Romanian law within the meaning of Article 3 of the Hague
Convention. The judge in charge of the case also directed that the
matter be set down for final hearing on 11 April 2003.
On
11 April 2003 the parties received permission to file further
evidence.
By
the time of the next hearing, on 9 May 2003, the High Court was
presented by the applicant with documentary evidence emanating from
the Ministry of Justice, the Romanian President's Office, the Child
Protection Authority and the Ombudsman, according to which the
child's removal was wrongful under Romanian law. However, the court
was not convinced and, in accordance with Article 15 of the Hague
Convention, requested a Romanian court decision on the matter.
On
11 June 2003 the applicant instituted civil proceedings before the
Bucharest Third District Court (“District Court”) seeking
a ruling that the child's removal from Romania had been illegal.
On
16 July 2003 the applicant introduced a new application before the
same court seeking a ruling that the child's removal was contrary to
Article 3 of the Hague Convention because he also had custody rights
over the child.
On
1 September 2003 the District Court held the first hearing in respect
of the applicant's first action; however, as a result of the mother's
request for an adjournment, the proceedings were adjourned until
8 December 2003.
On
29 September 2003 the Romanian Ministry of Justice wrote to the High
Court in London, informing it that the Romanian courts had exclusive
competence in issuing decisions in accordance with Article 15 of the
Hague Convention.
On
30 September 2003 the District Court in Bucharest held the first
hearing in respect of the second action and adjourned the case on the
grounds that the applicant had failed to sign the application and
that the mother had failed to sign her request for an adjournment.
On
2 October 2003 the High Court in London resumed its examination of
the case. The judge in charge of the case indicated that since his
decision of May 2003 a number of documents from Romania had become
available which seemed to indicate that the child's removal from
Romania by his mother was wrongful, and that, had these documents
been available earlier, he would not have sought a declaration under
Article 15 of the Hague Convention. Nevertheless, in view of the fact
that the proceedings in Romania had commenced, and in view of the
letter from the Romanian Ministry of Justice of 29 September 2003 it
was decided to adjourn the proceedings to a date after 8 December
2003 (the date on which the District Court in Bucharest was to hear
the case). The judge expressed concern about the time that had
elapsed in the proceedings and indicated that if the 8 December
hearing in Romania was not conclusive he would discharge the order he
had made in May and proceed to adjudication.
On
31 October 2003 the mother submitted her observations concerning the
applicant's actions in the Romanian proceedings and introduced a
counter-action seeking, inter alia, a ruling that the
applicant did not have a right of custody over the child and that he
did not have the right to decide on the child's place of domicile.
On
8 December 2003 the District Court in Bucharest adjourned the hearing
at the applicant's request so that he could examine the mother's
observations and the counter-action lodged by her. On the same date
the two actions lodged by the applicant and the mother's
counter-action were joined.
On
19 December 2003 the judge at the High Court in London, having
learned that the final determination of the case before the Romanian
court had yet again been put back, made an order that the final
hearing in London should take place “as a matter of urgency”
in January 2004.
On
5 January 2004 the District Court in Bucharest adopted a final ruling
in the case and declared inadmissible the applicant's actions without
entering into the merits of the case. It decided not to examine the
mother's counter-action. Both parties appealed against the judgment.
On
14 January 2004 the proceedings in London were adjourned at the
request of the parties to 1 March 2004 to allow time for receipt of
the written reasons from the Romanian court.
On
20 January 2004 the District Court in Bucharest delivered its
judgment and on 3 and 5 February the parties appealed against it.
On
6 February 2004 the case file was transmitted by the District Court
to the Bucharest Court of Appeal and the latter fixed 6 April as the
date of the hearing in the case.
On
23 February 2004 the applicant requested the Bucharest Court of
Appeal to speed up the proceedings in view of the proceedings pending
in London. His request was granted and the date of the hearing was
set for 16 March 2004.
On
1 March 2004 the applicant applied for an adjournment in the High
Court proceedings in London pending determination of the case by the
Bucharest Court of Appeal. His request was granted and the judge in
charge of the case ordered that the final hearing should take place
as soon as possible after receipt of an authorised translation of the
decision of the Bucharest Court of Appeal.
On
15 March 2004 the mother filed her observations with the Bucharest
Court of Appeal.
On
16 March 2004 the applicant's representative requested an adjournment
from the Bucharest Court of Appeal in order to study the mother's
observations.
On
11 May 2004 the Bucharest Court of Appeal held a hearing in the case
and heard submissions from the parties. The pronouncement of the
judgment was adjourned to 25 May 2004.
On
25 May 2004 the Fourth Section of the Bucharest Court of Appeal
quashed the judgment of the first-instance court in part. It examined
the applicant's action on the merits and dismissed it as ill-founded,
finding that the applicant did not have custody rights over the child
and that the child's removal from Romania was legal under domestic
law and not wrongful within the meaning of Article 3 of the Hague
Convention. The judgment of the Court of Appeal was communicated to
the parties on 19 July 2004.
On
3 August 2004 the applicant lodged an appeal on points of law with
the Court of Cassation (Înalta
Curte de Casaţie şi Justiţie)
against the judgment of the Bucharest Court of Appeal.
On
16 August 2004 the case file was sent by the Bucharest Court of
Appeal to the Court of Cassation of Romania.
On
three occasions between November 2004 and March 2005 the applicant
lodged requests with the Court of Cassation asking it for a speedier
examination of his case on grounds of the urgency of the matter.
It
appears that during that period the Romanian Code of Civil Procedure
was undergoing changes and that it was not clear which court was
competent under the new rules to examine the applicant's appeal on
points of law. On 16 March 2005 the Court of Cassation declined
jurisdiction in favour of the Bucharest Court of Appeal and on 28
March the case file was sent back to that court.
The
Bucharest Court of Appeal scheduled the first hearing in the case for
16 June 2005.
On
13 May 2005 the applicant requested that the proceedings be speeded
up in view of an upcoming hearing in the London proceedings. On 19
May the applicant's request was upheld and the hearing was
rescheduled for 26 May 2005.
On
26 May 2005 the Third Section of the Bucharest Court of Appeal held a
hearing; however, it decided to adjourn the proceedings to 9 June
2005.
On
9 June 2005 the Court of Appeal resumed the examination of the case
and dismissed the applicant's appeal on points of law. It found,
inter alia, that, under Romanian family law, after divorce the
parents of a child do not have equal rights in respect of their
child. In particular, the parent who has custody of the child does
not need the consent of the other parent in respect of measures
concerning the child except for matters relating to adoption and/or
losing or re-obtaining Romanian nationality. The parent who does not
enjoy custody cannot veto a decision of the other parent concerning
the child's domicile. Accordingly, the removal of the child from
Romania by the mother was lawful under Romanian law.
In
July 2005, after the Romanian proceedings had ended and the final
Romanian judgment had become available in English, the High Court in
London resumed its proceedings and listed the case for a final
hearing on 3 and 4 August 2005.
On
1 August 2005 the judge in charge of the case at the High Court in
London acceded to the applicant's application for an expert opinion
on the law of Romania. The expert was to file his report by 16
September 2005.
Both
parties agreed to instruct Dr Mihai to draft a report on Romanian
family law and on 14 September 2005 the High Court confirmed the
joint instructions to the expert and the time for lodging of the
expert report was extended to 7 October 2005 with the final hearing
listed for 14 October 2005.
On
28 September 2005 the High Court in London extended the time-limit
for the expert report to 11 October and relisted the case for 31
October 2005.
The
expert's report was ready on 11 October 2005; however, the parties
wished to put more questions to him. Therefore, on 31 October 2005,
on an application from the applicant, the court adjourned the
proceedings to 8 December 2005 and made further procedural directions
in relation to any further questions to be put to the expert.
On
8 December 2005 the final hearing was listed before the High Court in
London for 28 February and 1 March 2006.
On
28 February and 1 March 2006 the High Court held the final hearings
in the case and gave judgment on 28 March 2006. The court found in
favour of the applicant, choosing to rely on the expert opinion and
to disregard the decisions of the Romanian courts. It found that the
applicant had custody rights within the meaning of Article 5 of the
Hague Convention and that therefore the child's removal from Romania
had been wrongful under Article 3 of the same Convention. The court
also rejected an objection based on Article 13(b) of the Hague
Convention raised by the mother and issued an order for the return of
the child to Romania.
On
7 April 2006 the mother sought leave to appeal. This was granted on
10 April 2006 and the case was fixed for hearing in the Court of
Appeal on 25 May 2006.
On
25 May 2006 the Court of Appeal heard and dismissed the mother's
appeal while varying the order for the peremptory return of the child
until the end of the school term.
The
mother appealed to the House of Lords. Her appeal was heard between 9
and 11 October 2006 and on 16 November 2006 the House of Lords gave
judgment allowing the appeal. The House of Lords reversed the
judgment of the High Court, finding that the applicant did not have
custody rights within the meaning of Article 5 of the Hague
Convention and that therefore the child's removal from Romania was
not wrongful under Article 3 of the same Convention. The House
of Lords criticised the decision of the High Court to seek a further
expert opinion after having obtained a final decision on the matter
from the Romanian courts and expressed regret about the length of the
proceedings.
Lord
Hope of Craighead observed, inter alia, that:
“Article 15 of the Convention contemplates that
the court may need to be provided with a determination from the
authorities of the state of the child's habitual residence that the
removal was wrongful. So a judge is not to be criticised if he
decides to use this procedure because he cannot responsibly resolve
the issue on the information provided by the applicant. Nevertheless
if he decides on this course delay will be inevitable. Great care
must therefore be taken, in the child's best interests, to keep this
to the absolute minimum. The misfortunes that have beset this case
show that, once the court has received the response, it should strive
to treat the information which it receives as determinative.
In this case the response that was received from Romania
was sufficient to show that the child's removal was not wrongful
within the meaning of article 3. On 9 June 2005 the final Court of
Appeal of Bucharest, upholding the court of first appeal, stated in
the clearest terms that, under the law as it then stood in Romania,
termination of marriage through divorce brings joint custody to an
end, that cases where the agreement of the parties is required about
a measure which the parent with custody proposes are limited, and
that none of the rights that the father had been granted on divorce
gave him a right of veto or to decide the child's place of residence.
It is wholly understandable that the father should feel aggrieved by
what has happened in this case. The effect on his ability to exercise
his rights of access is plain to see. But the phrase “rights of
custody” has been given a particular definition by the
Convention. It is only if there has been a breach of rights of
custody as so defined that the removal can be described as wrongful
for its purposes. The information provided by the Romanian court
shows that, as the law stood at the time of the child's removal, the
father had no such rights.”
Baroness
Hale of Richmond commented, inter alia, that:
“...the Bucharest Court of Appeal concluded that
the removal of the child in December 2002 had not been wrongful...
How then should the courts of the requested state respond to such a
determination? Most certainly not as they did in this case. Having
received a determination, binding between the parties, in the final
court of the requesting state, the English High Court proceeded in
effect to allow the father to challenge that ruling by adducing fresh
expert evidence. The fact that the expert was jointly instructed does
not cure the vice.”
Lord
Carswell stated that:
“It was quite wrong to permit the father to adduce
further expert evidence from Dr Mihai which challenged not only
the conclusion but the statement of the content of the father's
rights set out in the judgment of the Romanian court. The English
court should have considered the terms of the judgment itself,
without any subsequently obtained expert evidence. If it had done so
it could only have come to the same conclusion as the Romanian court,
even without applying any presumption in its favour.”
Lord
Brown commented as follows:
“This is an extraordinary case. It is, we are
told, unique in the length of time which elapsed before the judge's
order for the child's summary return to Romania (over three years
after the commencement of Hague Convention proceedings); and unique
too in being the only case in which a United Kingdom court has
rejected a foreign court's article 15 determination that the child's
removal was not in the event wrongful within the meaning of article
3...
In circumstances like these it seems to me almost
inconceivable that the court requesting the article 15 determination
would then not simply accept it. Certainly there would need to be
some compelling reason to reject it such as a flagrant breach of the
rules of natural justice in the foreign judicial process or a
manifest misdirection as to the autonomous meaning of the Convention
term “rights of custody”. There is nothing of that sort
here. On the contrary, the judge - neither Johnson J (who had
requested the determination) nor Hogg J (who later ordered the
child's return to Romania) - on 1 August 2005, acting merely on the
father's request, ordered that an expert in Romanian law be jointly
instructed by both parties to cover exactly the same ground as the
Romanian Appeal Courts had themselves just covered...”
Throughout
the entire proceedings in the United Kingdom the applicant was
allowed to meet his child on a number of occasions in special contact
centres for periods not exceeding two hours. According to him,
however, over the last four years he has only been able to spend
about thirty hours with his son.
It does not appear that the applicant ever applied to
the United Kingdom courts in order to obtain a judgment from them
giving him access to the child. However, on an unspecified date in
2007 he applied to the High Court in London for the recognition of
the Romanian judgment of November 2000 (see paragraph 7 above). The
Court is not aware of the outcome of those proceedings.
II. RELEVANT NATIONAL AND INTERNATIONAL LAW
The
relevant provisions of the Romanian Family Code read as follows:
Article 43
1. The divorced parent who was entrusted with
the child shall exercise the parental rights...
3. The divorced parent, who was not entrusted
with the child, keeps the right to have personal ties with the child,
as well as to observe his or her bringing up, education, studies and
professional instruction.
The
relevant provisions of the Hague Convention on the Civil Aspects of
International Child Abduction provide:
Article 3
“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.
The rights of custody mentioned in sub-paragraph a
above, may arise in particular by operation of law or by reason of a
judicial or administrative decision, or by reason of an agreement
having legal effect under the law of that State.”
Article 5
“For the purposes of this Convention –
a) 'rights of custody' shall include rights
relating to the care of the person of the child and, in particular,
the right to determine the child's place of residence;
b) 'rights of access' shall include the right
to take a child for a limited period of time to a place other than
the child's habitual residence.”
Article 7
“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.”
Article 8
“Any person, institution or other body claiming
that a child has been removed or retained in breach of custody rights
may apply either to the Central Authority of the child's habitual
residence or to the Central Authority of any other Contracting State
for assistance in securing the return of the child...”
Article 10
“The Central Authority of the State where the
child is shall take or cause to be taken all appropriate measures in
order to obtain the voluntary return of the child.”
Article 11
“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.”
Article 13
“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.”
Article 15
“The judicial or administrative authorities of a
Contracting State may, prior to the making of an order for the return
of the child, request that the applicant obtain from the authorities
of the State of the habitual residence of the child a decision or
other determination that the removal or retention was wrongful within
the meaning of Article 3 of the Convention, where such a decision or
determination may be obtained in that State. The Central Authorities
of the Contracting States shall so far as practicable assist
applicants to obtain such a decision or determination.”
Article 21
“An application to make arrangements for
organizing or securing the effective exercise of rights of access may
be presented to the Central Authorities of the Contracting States in
the same way as an application for the return of a child.
The Central Authorities are bound by the obligations of
co-operation which are set forth in Article 7 to promote the peaceful
enjoyment of access rights and the fulfilment of any conditions to
which the exercise of those rights may be subject. The Central
Authorities shall take steps to remove, as far as possible, all
obstacles to the exercise of such rights.
The Central Authorities, either directly or through
intermediaries, may initiate or assist in the institution of
proceedings with a view to organizing or protecting these rights and
securing respect for the conditions to which the exercise of these
rights may be subject.”
THE LAW
Relying
on Article 8 of the Convention, the applicant alleges, inter alia,
that the Romanian authorities failed to take adequate steps in order
to secure the enforcement of the judgment which gave him the right to
have access to his son for a total of 82 days per year. The Romanian
authorities were wrong to allow the mother to take the child out of
the country, and they failed to assist him in the proceedings before
the English courts.
Furthermore,
according to the applicant, the United Kingdom also failed to assist
him adequately in retaining contact with the child or to ensure the
child's return to Romania. They were wrong in the first place to have
issued a visa to the child without his consent and later in not
sending him back to Romania after the expiry of his visa. The
authorities obstructed the applicant's access to the United Kingdom
by lengthy questioning before his entry into British territory. They
also obstructed his contacts with the child by only allowing him to
have meetings lasting a maximum of two hours in “locked rooms,
under the supervision of one or two strangers”. On several
occasions he was not allowed to take pictures of his son and was
forced to speak English with him. His Article 8 rights were also
infringed by the excessively long proceedings before the English
courts. Article 8 reads as follows:
“1. Everyone has the right to respect
for his private and family life...
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.”
He
further complains, under Article 6 § 1 of the Convention, of a
breach of the principle of equality of arms by the United Kingdom
courts because he was not allowed to have any information concerning
his son, which put him in a position of procedural inequality
vis-à-vis his former wife. The applicant also complains that
the proceedings before both the Romanian and the United Kingdom
courts were excessively long. The relevant part of Article 6 § 1
of the Convention, reads:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing within a
reasonable time by [a] ... tribunal...”
The
applicant finally complains that both Romania and the United Kingdom
breached his rights guaranteed by Article 5 of Protocol No. 7 which
reads as follows:
“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.”
I. ADMISSIBILITY OF THE COMPLAINTS
A. The complaint under Article 6 of the Convention
concerning the alleged unfairness of the proceedings before the
United Kingdom courts
The
applicant's complaint about the breach of the principle of equality
of arms appears to be unsubstantiated. Indeed, the applicant failed
to explain in what way the non-disclosure of his son's address
negatively influenced or reduced his chances of success in the
proceedings before the United Kingdom courts in circumstances in
which the decisive factor in those proceedings was the interpretation
of Romanian family law. Accordingly, this complaint is manifestly
ill-founded and must therefore be declared inadmissible pursuant to
Article 35 §§ 3 and 4 of the Convention.
B. The complaint under Article 8 of the Convention
The
applicant argued that the Romanian authorities failed to take
adequate steps in order to secure the enforcement of the judgments of
the Romanian courts which gave him the right of access to his son and
that they wrongfully allowed the child to leave the country without
his consent. The applicant also appeared to be dissatisfied with the
outcome of the proceedings which ended with the final judgment of the
Bucharest Court of Appeal of 9 June 2005 and complained that the
Romanian authorities failed to assist him in the proceedings before
the English courts.
In
so far as the United Kingdom is concerned, the applicant submitted
numerous complaints such as the wrongful issuance of a visa to his
child by the United Kingdom consulate in Bucharest; his lengthy
questioning before his entry into United Kingdom territory; the short
duration of his meetings with the child and the inappropriate
conditions of such visits; the prohibition on several occasions on
taking pictures of his son and speaking Romanian; and the excessive
length of the proceedings under the Hague Convention and the outcome
of those proceedings.
In so far as the complaint about the outcome of the
Hague Convention proceedings in both jurisdictions is concerned, the
Court recalls that, according to Article 19 of the Convention, its
duty is to ensure the observance of the engagements undertaken by the
Contracting Parties to the Convention as interpreted in the light of
the requirements of the Hague Convention. However, it is not its
function to deal with errors of fact or law allegedly committed by a
national court unless and in so far as they may have infringed rights
and freedoms protected by the Convention. In the instant case, the
Court notes that there is no appearance of arbitrariness in the
proceedings in either country. The Romanian courts were called upon
to interpret Romanian family law and to rule on whether the mother
had acted lawfully when removing the child from the country without
the father's consent. The ruling of the Romanian courts does not
appear to be unreasonable or contrary to the general rules of
fairness. Indeed the applicant did not adduce any evidence to support
such a conclusion.
The
English courts in the final instance made use of the interpretation
given by the Romanian courts to Romanian family law for the purpose
of the proceedings before them. Their task was to return the child to
Romania in the event that he had been taken out of the country
unlawfully. Since the Romanian courts found that the child had been
lawfully removed from Romania, the English courts ruled appropriately
and dismissed the applicant's action. The Court finds no indication
of arbitrariness or unreasonableness in the decisions of the English
courts in this respect. Moreover, it appears clearly from the
judgment of the House of Lords that the length of the proceedings in
the present case did not have any bearing on the solution in the
case.
In
the light of the above conclusions, the Court considers that it
cannot be maintained that either the alleged failure of the Romanian
authorities to prevent the removal of the child to the United Kingdom
or the fact that the United Kingdom authorities issued a visa for the
child and subsequently refused to order the return of the child to
Romania in itself breached the applicant's rights under Article 8 of
the Convention. Furthermore, with regard to the applicant's complaint
that the Romanian authorities failed to assist the applicant in the
proceedings before the English courts, the Court does not consider
that any such obligation can be inferred from Article 8.
In
so far as the applicant complains that the authorities of both States
failed to take adequate steps to ensure that he could exercise his
right of access to his child, the Court observes firstly that the
proceedings instituted by the applicant related exclusively to the
lawfulness of the child's removal from Romania. In that respect, it
notes that the Hague Convention does not prevent a parent with sole
custody of a child taking the child abroad (see paragraph 59 above).
Moreover, the Romanian courts concluded in the present case that the
removal of the applicant's child was not wrongful within the meaning
of the Hague Convention. Consequently, the proceedings did not
directly determine the question of the applicant's right of access
and neither their outcome nor their allegedly protracted nature had a
decisive impact on the exercise of that right. It is true that the
applicant's objective in seeking to have the child returned to
Romania was to ensure that he could exercise the right of access
which he had been granted by the Romanian courts and that both the
removal of the child and the fact that he remained in the United
Kingdom throughout the subsequent proceedings to a certain extent
frustrated the exercise of the applicant's rights. The Court notes,
however, that the applicant did have access to his child in the
United Kingdom during the proceedings and that although that access
was limited he did not apply to the English courts for any extension
of his rights or for any modification of the manner in which they
were exercised. Furthermore, the Court finds it striking that the
applicant did not at any stage ask to have the child returned to
Romania on a temporary basis with a view to exercising his right of
access, which in any event was limited to eighty-two days a year, and
that it was only in 2007 that he applied to the English courts for
recognition of the judgment of the Romanian court granting him a
right of access (see paragraph 57 above). In all these circumstances,
the Court finds that neither State failed to take adequate steps to
secure the exercise of the applicant's right of access to his child.
Having
examined the applicant's other complaints concerning both respondent
States, the Court notes that all are either ill-founded and/or
unsubstantiated or he has failed to exhaust domestic remedies in
respect of them. The Court finds therefore no appearance of a
violation of Article 8 of the Convention in the circumstances of this
case. This complaint must therefore be rejected as manifestly
ill-founded pursuant to Article 35 §§ 3 and 4 of the
Convention.
C. The complaint under Article 5 of Protocol No. 7 to
the Convention
The
Court notes that the United Kingdom has not ratified Protocol No. 7
to the Convention. As to Romania, the Court notes that the applicant
raised this complaint for the first time in the proceedings before
it. Accordingly, the complaint is incompatible ratione personae
with regard to the United Kingdom and inadmissible on account of
failure to exhaust domestic remedies with regard to Romania and must
be rejected pursuant to Article 35 §§ 1, 3 and 4 of the
Convention.
D. The complaints under Article 6 of the Convention
concerning the length of the proceedings
The
Court considers that the rest of the applicant's complaints raise
questions of fact and law which are sufficiently serious that their
determination should depend on an examination of the merits, and no
other grounds for declaring them inadmissible have been established.
The Court therefore declares these complaints admissible. In
accordance with its decision to apply Article 29 § 3
of the Convention (see paragraph 4 above), the Court will immediately
consider the merits of the complaints.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant argued that the proceedings were excessively long before
both the Romanian and the United Kingdom courts.
The
Romanian Government argued that the overall duration of the
proceedings had not been excessive. They pointed out that the
proceedings were complex and that the domestic courts did their best
to have them concluded as soon as practicable. In their view, the
only problematic period was the period before the examination of the
case by the Court of Cassation. However, that was due to the
excessive case-load of that court and could not render the overall
period excessive. The parties themselves contributed to the length of
the proceedings by asking on several occasions for adjournments and
by making use of all the ordinary appeals possible under the
procedural law. On the other hand, the Romanian courts acceded on two
occasions to the applicant's requests to speed up the proceedings.
The
United Kingdom Government argued that the case was of some complexity
which was underlined, inter alia, by the applicant's refusal
to accept the rulings of the Romanian courts and his subsequent
applications to be permitted to adduce further expert evidence with
the intention of disputing the accuracy of the final ruling of the
Romanian courts. The English courts were at all times concerned to
bring the dispute to a conclusion as quickly as was possible. Once
the Romanian courts had ruled against the applicant, it was the
conduct of the applicant himself which caused the delay. While it is
now clear, following the ruling from the House of Lords, that the
lower courts should not have acceded to the applicant's requests but
should have dismissed his application under the Hague Convention as
soon as possible after 18 July 2005, it is equally clear that the
courts' sole motivation in acceding to the applicant's requests was
so as to protect his rights both under Articles 6 and 8 of the
Convention.
The
Court recalls that the reasonableness of the length of proceedings is
to be examined in the light of the criteria laid down in the Court's
case-law, in particular the complexity of the case, the conduct of
the applicant and that of the relevant authorities. On the latter
point, the importance of what is at stake for the applicant in the
litigation has to be taken into account. It is thus essential that
custody cases be dealt with speedily (see, for example, the Hokkanen
v. Finland, judgment of 23 September 1994, Series A no.
299-A, p. 25, § 69). A delay at some stage may be tolerated if
the overall duration of the proceedings cannot be deemed excessive
(see, for example, the Pretto and Others v. Italy judgment of
8 December 1983, Series A no. 71, p. 16, § 37).
As
to the proceedings before the United Kingdom courts, the Court notes
that they commenced on 6 February 2003 and ended on 16 November 2006.
The length of those proceedings depended to a large extent, at least
initially, on the conclusion of the Romanian proceedings. Following
its decision of 9 May 2003 to seek a Romanian court decision on the
matter in accordance with Article 15 of the Hague Convention, the
High Court in London could not come to a decision before the end of
the Romanian proceedings.
Having
examined the materials submitted by the parties, the court cannot
find any lengthy periods of inactivity on the part of the English
courts imputable to them. It notes, however, the criticism which the
House of Lords expressed in respect of the first instance court's
decision to allow the applicant's request to seek a further expert
opinion on the interpretation of the Romanian law, after the end of
the proceedings in Romania. Nonetheless, the Court does not consider
that the extra length generated by that decision was so important as
to render the overall duration of the proceedings unreasonable, in
particular taking into account the fact that it was the applicant who
requested from the High Court that an expert opinion be sought, in
order to contest the decision which had been reached on the basis of
the findings of the Romanian courts, so that the continuation of the
proceedings thereafter was in his interest only.
In
so far as the length of the proceedings in Romania is concerned, the
Court notes that they commenced on 11 June 2003 and ended on 9 June
2005. Thus, the period to be taken into consideration is
approximately two years.
The
Court notes that according to Article 11 of the Hague Convention any
delay in the proceedings exceeding six weeks gives the applicant a
right to request from the competent authorities a statement of the
reasons for the delay. It is for this reason that the proceedings
under the Hague Convention require special expediency. Against this
background, the Court notes several factors which raise concern. In
the first place it notes that several adjournments were ordered at
the beginning of the proceedings, notwithstanding the urgent nature
of the matter. Moreover, it took six months for the first instance
court to examine the case without, however, giving a decision on the
merits. In addition, although the courts twice agreed to speed up the
proceedings, they subsequently had to adjourn the advanced hearings
because they had failed to ensure that the observations were
submitted earlier than the day before the hearing. Consequently, on
both occasions the speeding up did not have the desired effect. Most
importantly, however, the Court notes that between August 2004 and
May 2005 there were no developments in the proceedings before
the Romanian courts. The Government submitted that this was due to
the workload of the Romanian Court of Cassation; however, the Court
cannot accept this argument. In the first place, it was not the Court
of Cassation which examined the appeal on points of law, but the
Bucharest Court of Appeal. In any event, even assuming that the delay
occurred due to the Court of Cassation's workload, the Court recalls
that Article 6 § 1 imposes on the Contracting States
the duty to organise their judicial systems in such a way that their
courts can meet each of its requirements, including the obligation to
hear cases within a reasonable time (see, among many other
authorities, Kyrtatos v. Greece, ECHR-2003..., 22 May 2003, §
42). In such circumstances, and bearing in mind the urgency of the
matter, the Court considers that the length of the proceedings in
Romania did not satisfy the “reasonable time”
requirement.
Accordingly,
there has been no violation of Article 6 § 1 of the Convention
in respect of the United Kingdom and there was a breach of that
provision in respect of Romania.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“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.”
A. Damage
The
applicant claimed 300,000 euros (EUR) for pecuniary damage and
EUR 500,000 for non-pecuniary damage.
The
Romanian Government argued that the amounts were excessive.
In
so far as the pecuniary damage is concerned, the Court finds no
causal link between the violation found and the pecuniary damage
allegedly suffered. This claim must therefore be rejected.
As
to the non-pecuniary damage, the Court accepts that the excessive
length of the proceedings in Romania has caused the applicant
non-pecuniary damage, which cannot be made good by the mere finding
of a violation. The Court, making its assessment on an equitable
basis, awards the applicant EUR 1,000 in respect of non-pecuniary
damage.
B. Costs and expenses
The
applicant also claimed EUR 106,947.44 for the costs and expenses
incurred.
The
Romanian Government argued that the amount was excessive.
According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria the Court
considers it reasonable to award the sum of EUR 300 covering costs
for the proceedings before the Court.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
Declares unanimously the complaint under Article
6 of the Convention concerning the excessive length of the
proceedings in respect of both Romania and the United Kingdom
admissible;
2. Declares unanimously the other complaint under Article 6
and the complaint under Article 5 of Protocol No 7
inadmissible;
3. Declares by a majority the complaint under Article 8 of the
Convention inadmissible;
Holds unanimously that there has been a
violation of Article 6 § 1 of the Convention by Romania;
Holds unanimously that there has been no
violation of Article 6 § 1 of the Convention by the United
Kingdom;
Holds unanimously
(a) that
the Government of Romania 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,
EUR 1,000 (one thousand euros) in respect of non-pecuniary
damage, plus any tax that may be chargeable, and EUR 300 (three
hundred euros) in respect of costs and expenses, plus any tax that
may be chargeable on the applicant, to be converted into Romanian lei
at the rate applicable at the date of settlement;
(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;
Dismisses unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 3 June 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the following partly dissenting
opinion of Mr B.M. Zupančič is annexed to this
judgment.
JCM
SQ
PARTLY DISSENTING OPINION OF JUDGE ZUPANČIČ
I
regret that I am unable to join the majority in this case as far as
it concerns the inadmissibility of the complaint under Article 8 of
the Convention.
The
applicant complains that the Romanian authorities failed to take
adequate steps to enforce the judgment which had given him the right
to have access to his son for a total of 82 days per year. He also
complains that the Romanian authorities allowed the mother to take
the child out of the country and failed to assist him in the
proceedings before the English courts.
My
first hesitation in this case stemmed from my belief that it ought
not to have been finally decided before it had become clear whether
another case, which was being examined by the Third Section, would or
would not be accepted for a referral to the Grand Chamber. I am
referring to Maumousseau and Washington v. France, a case in
which the pattern of events is to some extent a mirror image of the
situation in this particular case. In Maumousseau and Washington
the mother stayed in France and the father returned to the United
States. Eventually, after a radical departure from the jurisprudence
of the Cour de cassation, the child – who had never
spent any meaningful time with the father – was snatched from
the hands of the mother, put on an aeroplane and sent back to New
York. The passage of time, which was the central issue in that case,
made it unreasonable – according to the Hague Convention
criteria – to have proceeded under those conditions to
re-establish the relationship with the father in New York. The
position I took in that case relied principally on the fait
accompli logic, not uncommon in such cases, that is, the sheer
passage of time in conjunction with the fact that the child in
question was deprived to such a degree of her mother's maternal love
and care. I continue to see the eventual snatching as an incredibly
sad and shocking turn of events.
If
Maumousseau and Washington is to be reconsidered by the Grand
Chamber, which we do not know at this particular point in time, then
certain very basic logic of the Hague Convention would have to be
interpreted in the light of our own Article 8 and certain
criteria guiding decisions in similar cases would be confirmed or
newly established. In my opinion, it would be wise to wait and see
whether such criteria is or is not forthcoming.
It is
inconceivable, in my humble opinion, not to regard the pattern of
events in this particular case through precisely the same lenses. At
bottom, the situation is very simple, namely, the mother here
effectively kidnapped the boy and, unbeknown to the father and the
authorities, moved the child to a faraway country. In Maumousseau
and Washington the omission of the mother was considered by the
American courts to have been a kidnapping,
whereas here perfectly analogous behaviour, except that the mother
actively kidnapped the boy, has not been considered as anything
illegal. How can that be?
If
the father in this particular case were to pursue the same legal
internal and international remedies, then the mother's behaviour
would end up in the same legal slot as the behaviour of the mother in
Maumousseau and Washington. The father has not, however,
pursued those or other legal remedies and therefore the actual
kidnapping of the child has never fallen under that legal definition.
The case has ended here in this Court, reduced to a series of
technicalities concerning unreasonable delays allegedly committed by
the Romanian and English courts.
On
another level, an analysis of Article 3 of the Hague Convention
on the Civil Aspects of International Child Abduction reveals that
the removal of the child is to be considered wrongful if it is in
breach of rights of custody, here of the father, under the law of the
State in which the child was habitually resident immediately before
the removal, and under the additional condition that those rights
were actually exercised, here by both the father and mother.
Technically, the application of the Hague Convention therefore
depends on the application of Romanian law in the matter. A separate
question therefore arises as to whether the idea of litigating this
issue before the Romanian courts does not in fact conflict with the
primordial imperative of the Hague Convention. This imperative, as we
emphasized in our dissent in Maumousseau and Washington, is
time. In other words, if the application of domestic law were to be
litigated with unreasonable delay in each of these cases then the
fait accompli logic referred to above would always produce an
undesired effect. This is precisely what happened in Maumousseau
and Washington, which is why it became unreasonable to snatch the
child from the hands of the mother and put it on an aeroplane back to
New York.
Nevertheless,
there is one significant difference concerning the pattern of events
in question. In Maumousseau and Washington the litigation was
parallel in both countries but proved to be more effective in the
United States than in France. In this particular case the litigation
before the Romanian courts was completely ineffective, hence the
unfortunate consequences which this Court has now confirmed. If the
father in this case had pursued the same remedies as Mr Washington in
his case, the mother's action would perhaps have been regarded as a
kidnapping. However, the case got bogged down in the Romanian courts
and the international action never materialised. If, on the other
hand, the American courts in Duchess County in the State of New York
had bothered to undertake a complex analysis of the French law,
before the departure from precedent by the Cour de cassation,
Mr Washington would never have succeeded with his case.
But
these are technicalities. The role of the European Court of Human
Right has certainly not been foreseen as one in which the unfortunate
formula condemning legal formalism – summum jus, summa
injuria! – would prevail. The subsidiary function of
the international court is precisely to cut through such Gordian
knots of legal technicalities and see the reality with a great dose
of common sense and awareness of justice.
Here
we have a father who has effectively been deprived of his child
whereas in Maumousseau and Washington we had a child who had
effectively been deprived of her mother. There is no disputing the
fact that the clandestine removal of the child in this case was
wrongful because there is now no getting round the fact that the
distance between Bucharest and the United Kingdom, given the
financial requirements involved, has deprived the father of his right
to see his son for a total of 82 days per year. No amount of
legal fireworks can conceal that simple fact, just as in Maumousseau
and Washington nothing could conceal the fact that the child had
been snatched from the hands of her mother who had cared for her all
her life.
The
legitimacy and moral impact of the judgments of this Court depend on
this direct contact with reality. We should not be seduced into legal
formalism.