European Court of Human Rights

 

 

 

FOURTH SECTION

 

 

 

 

 

 

CASE OF E.S. v. ROMANIA AND BULGARIA

 

(Application no. 60281/11)

 

 

 

 

 

 

 

JUDGMENT

 

 

 

 

 

 

STRASBOURG

 

 

 

19 July 2016

 

 

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 E.S. v. Romania and Bulgaria,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

          András Sajó, President,
          Vincent A. De Gaetano,
          Nona Tsotsoria,
          Krzysztof Wojtyczek,
          Iulia Motoc,
          Yonko Grozev,
          Marko Bošnjak, judges,
and Marialena Tsirli, Section Registrar,

Having deliberated in private on 21 June 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 60281/11) against Romania and Bulgaria 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, Ms E.S. (“the applicant”), on 29 August 2011. The Chamber decided of its own motion to grant the applicant anonymity pursuant to Rule 47 § 4 of the Rules of Court.

2.  The applicant was represented by Ms S. Cojusneanu, a lawyer practising in Râmnicu Vâlcea. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs. The Bulgarian Government were represented by Ms K. Radkova, of the Ministry of Justice.

3.  The applicant alleged a disruption of her family life because of the respondent States’ unsatisfactory response to her daughter being kidnapped in Romania and illegally kept in Bulgaria by her paternal grandparents.

4.  On 4 April 2013 the application was communicated to the two respondent Governments.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1981 and lives in Hotarele, Vâlcea County.

6.  On 12 November 2004, in Spain, the applicant gave birth to a girl. The father was R.E.N., a Bulgarian national. In 2008 the couple split up.

7.  The child lived with her parents in Spain until January 2007, when she was sent to her paternal grandparents in Bulgaria. She remained there until March 2008. From March until June 2008 the couple again lived together with their daughter in Spain; then, with the father’s consent, the applicant returned with her daughter to Romania for what was meant to be a short stay with the child’s maternal grandmother. The applicant remained with her daughter in Romania until September 2008 and subsequently returned to Spain to work, leaving the child in Romania with her maternal grandmother.

8.  On 4 November 2008 the child’s paternal grandparents visited the child in Romania. With the maternal grandmother’s consent, they took the child to town for ice-cream, accompanied by her aunt (the wife of the applicant’s brother). They stopped the car on the side of the road, expelled the aunt from the car and then returned to Bulgaria, taking the child with them without the knowledge or consent of the applicant or her family. The child has been living in Bulgaria with her paternal grandparents ever since.

A.  Custody proceedings before the Romanian courts

9.  On 29 July 2008 the applicant, represented by counsel, lodged a request for full custody of the child with the Râmnicu Vâlcea District Court (“the District Court”). She initially indicated that R.E.N. was living in Romania with her family. However, during the proceedings the applicant told the court that R.E.N. no longer lived in Romania and that she did not know his whereabouts. As a summons could therefore not be served on him, it was posted at the court’s premises and published in a newspaper. Later on the applicant provided an address in Spain, which turned out to be incomplete.

10.  The court postponed four times the examination of the case, mainly on account of attempts made by the applicant and her lawyer to establish R.E.N.’s whereabouts and to secure his presence in court. On 21 November 2008 the District Court heard two witnesses for the applicant. On the same date, the applicant informed the court that her daughter had been kidnapped by the paternal grandparents.

11.  On 30 January 2009 the District Court awarded custody of the child to the applicant, on the basis of the evidence in the case file, including the witness evidence and a report made by the Child Protection Agency following a visit in the applicant’s home. The parties had fifteen days to appeal.

12.  In September 2009 R.E.N. sought leave to appeal outside the time limit (cerere de repunere în termenul de apel), submitting that he had been living in Bulgaria with his parents throughout the period of the proceedings and that the applicant had known of that fact. On 11 December 2009 the Vâlcea County Court (“the County Court”) quashed the decision of 30 January 2009 (see paragraph 11 above) on the ground that R.E.N. had not been legally summoned to appear. It sent the case back to the District Court.

13.  On 12 February 2010 the case file was again registered with the District Court. Eleven hearings were held and the applicant and/or her counsel were present at all of them. The court heard evidence from the two parents and from four witnesses (two for each party - R.E.N. summoned his neighbours from Bulgaria) and ordered the child protection agencies in Romania and Bulgaria to investigate the living conditions both in the applicant’s mother’s home and in the paternal grandparents’ home in Bulgaria. The latter investigation was ordered by the court on 18 March 2010; the court order arrived at R.E.N.’s counsel’s office on 17 May 2010 and the latter added to the case file the final report of that investigation in both Bulgarian and Romanian on 2 September 2010.

14.  In a decision of 11 November 2010 the District Court again awarded custody to the applicant. The court also noted that on 22 December 2008 R.E.N. had instituted similar proceedings in Bulgaria. Given that he had lodged his application for full custody of the child with the Bulgarian courts only after the applicant had lodged her request with the Romanian courts, the District Court considered that it had jurisdiction to deal with the matter. On the merits, the court considered that while the living conditions offered by the father and paternal grandparents were superior to the ones available in the applicant’s home, the father and the paternal grandparents did not set the child a satisfactory moral example. Regarding this point, the court referred to R.E.N.’s criminal past and to the manner in which the paternal grandparents had kidnapped the child.

15.  The father lodged an appeal and the case was heard by the County Court. Five hearings took place before the County Court and both the applicant and her counsel were present at all of them. He (that is to say the father) asked the court to interview the child, who was aged seven at that time. On 10 June 2011 the court granted that request. On 14 June 2011 the applicant gave notarised consent for her daughter to obtain travel documents and to cross the border into Romania. On 29 August 2011 R.E.N. informed the applicant that the said notarised consent was not sufficient for the Bulgarian authorities. The applicant offered to travel to Bulgaria to assist in the formalities necessary to obtain a passport. On 9 September 2011 the County Court acknowledged the situation and ordered the applicant to travel to Bulgaria. It also ordered R.E.N. to allow contact between the mother and the child for the purposes of making travel arrangements. After the applicant’s visit to Bulgaria, the child was brought before the court on 17 October 2011. The child told the court in a private hearing, with the help of a Bulgarian translator, that she would prefer to stay with her father and paternal grandparents in Bulgaria; that she spoke on the phone with her mother occasionally; that she could not remember her maternal grandmother; and that she did not like being in Romania.

16.  On 21 October 2011 the County Court granted custody of the child to the father on the grounds that the child was already integrated into her environment in Bulgaria, where she had lived for the past four years, and that she did not speak Romanian.

17.  The applicant appealed on points of law. The Piteşti Court of Appeal held one hearing, at which the parties and their respective counsel were present. The Court of Appeal re-examined the facts and concluded that the County Court had interpreted the situation erroneously and had disregarded the child’s “best interests”. It therefore quashed the County Court’s decision and upheld the decision rendered by the District Court. The Court of Appeal delivered its final ruling in the case on 9 January 2012.

B.  Request for interim measures in Romania (ordonanţă preşedinţială)

18.  On 29 June 2011 the applicant, seeking temporary custody of her daughter pending the outcome of the custody proceedings, lodged a request for interim measures. On 26 July 2011 her application was rejected by the District Court on the ground that as at that time the child had already been living with her paternal grandparents in Bulgaria for over three years, it would not be in her interests to temporarily remove her from her usual environment and place her with her mother until the end of the custody proceedings.

19.  The applicant appealed; on 16 September 2011 the County Court dismissed her appeal, upholding the District Court’s decision.

C.  First set of proceedings in Bulgaria for the recognition and enforcement of the Romanian judgment granting custody to the applicant

20.  The applicant sought recognition in Bulgaria of the 30 January 2009 judgment of the first-instance Romanian court that had given custody of the child to her (see paragraph 11 above). The Pazardzhik Regional Court granted her request on 14 May 2009, finding that the Romanian judgment had become final in the absence of an appeal within the statutory time-limit (as indicated in paragraph 12, the judgment was appealed later, outside the statutory limits). On 16 April 2010 the Sofia Court of Appeal upheld this decision, which - as it was not appealed against - became final on an unspecified date. The applicant was issued with a writ of enforcement on 20 July 2010.

D.  First set of enforcement proceedings in Bulgaria

21.  On 30 August 2010 the applicant applied to a Bulgarian enforcement officer, who brought enforcement proceedings immediately. The authorities unsuccessfully attempted on several occasions to personally serve an invitation for voluntary compliance on R.E.N. Having noted that he was working abroad for an indefinite period, the summons was posted twice - on 13 and 28 October 2010 - on the entrance gate at R.E.N.’s address. On 20 January 2011 the enforcement officer appointed a lawyer to represent R.E.N. as he had not been located.

22.  On 28 January 2011 the enforcement officer scheduled the handover of the child to the applicant for 9 February 2011 and asked the police and the social services to assist him on that day. Notice of the handover was personally served on R.E.N. on 4 February 2011. On 8 February 2011 two lawyers acting on behalf of R.E.N. brought judicial review proceedings in respect of the enforcement officer’s actions; those proceedings were dismissed by the Pazardzhik Regional Court on 22 March 2011.

23.  Following the unsuccessful attempt on 9 February 2011 to locate the child at the address of her paternal grandparents with whom she lived, the enforcement officer fined R.E.N. 200 euros (EUR) for failure to cooperate and scheduled 16 March 2011 as the new date for the child’s transfer to the applicant. The enforcement officer also directed the social services to help to ensure for the child a smooth transition to life with the applicant by, inter alia, arranging a meeting with a psychologist. On 15 March 2011 the social services drew up a report on the child, which concluded that abruptly removing the child from her usual environment - and thus separating her from the adults who provided her with emotional and physical security - would be detrimental to her development. The report noted that the child needed to be assisted in the process of re-establishing a relationship with her mother.

24.  Upon a request of R.E.N., on 2 June 2011 the Supreme Court of Cassation suspended the enforcement proceedings brought by the applicant. It did so following R.E.N.’s request for the reopening of the proceedings for the recognition of the Romanian judgment on custody.

E.  Second set of proceedings in Bulgaria for the recognition and enforcement of the Romanian judgment granting custody to the applicant

25.  Following the suspension of the enforcement proceedings brought by the applicant in Bulgaria (see the preceding paragraph), on 12 January 2012, within the context of the reopening of the proceedings for recognition of the Romanian judgment, the Supreme Court of Cassation quashed the decision of the Sofia Court Appeal of 16 April 2010 (see paragraph 20 above). The Supreme Court of Cassation found that R.E.N. had not been summoned in accordance with the applicable procedural rules and as a result had been unable to take part in the proceedings for the recognition and enforcement of the Romanian judgment which had determined custody of his daughter. More specifically, he had only learned of those proceedings on 4 February 2011, when he had received notice to hand the child over. In the same decision of 12 January 2012 the Supreme Court of Cassation remitted the case to the Pazardzhik Regional Court for a new examination and decision.

26.  On 10 May 2012, in response to the applicant’s request for the recognition and enforcement of the Romanian judgment of 11 November 2010 granting custody to her (see paragraph 14 above), which had become final and enforceable on 9 January 2012 (see paragraph 17 above), the Pazardzhik Regional Court recognised that judgment and authorised its execution in Bulgaria. Upon an appeal by R.E.N., the Sofia Court of Appeal upheld that decision on 10 April 2013. On 15 May 2014 the Supreme Court of Cassation rejected R.E.N.’s cassation appeal; the decision therefore became final on that date.

F.  Second set of enforcement proceedings in Bulgaria

27.  Thereafter, on an unspecified date, the applicant brought new enforcement proceedings in Bulgaria seeking implementation of the final Romanian judgment granting custody to her.

28.  On 9 July 2014, upon R.E.N.’s request (see paragraph 43 below), the Pazardzhik District Court suspended the enforcement. The court observed that R.E.N. had in the meantime brought proceedings in Bulgaria for a change of custody in respect of the child. It then noted that the child had settled well in Bulgaria, both in terms of emotional and material comfort, having been living there uninterruptedly since November 2008. The child only spoke Bulgarian, had adapted to and quite enjoyed her schooling environment, and showed interest in the extra-curricular activities she attended. Also, she enjoyed a particularly close and warm relationship with her paternal grandparents, who were caring remarkably well for her. The court found that, in view of the above and the fact that proceedings for a change of custody were pending before the Bulgarian courts, a sudden change in the child’s environment would not be in her interests. The court then granted R.E.N.’s request and suspended the enforcement.

G.  Proceedings under international conventions/multilateral instruments

29.  Following a telephone conversation between the applicant and an employee of the Romanian Ministry of Justice, the applicant was invited to lodge a request for the return of her daughter under the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (“the Hague Convention”; see paragraph 43 below). Accordingly, on 1 July 2011 the applicant lodged a request for the return of the child with the Romanian Ministry of Justice, the Central Authority for the purpose of the Hague Convention.

30.  On 12 July 2011 the Romanian Ministry of Justice requested further clarification from the applicant, in particular asking her to explain why she had waited for such a long time before lodging her request. They informed her that any application lodged more than one year after the abduction could be rejected. On 26 July the Ministry of Justice further informed the applicant that she could request the return of her child either under the terms of the Hague Convention or under the terms of the Brussels II bis Regulation (see paragraph 46 below). They advised her to lodge her request either directly with the competent Bulgarian authority or through the Romanian Ministry of Justice.

31.  On 17 August 2011 the applicant’s initial request was transmitted by the Romanian Ministry of Justice to the Bulgarian Ministry of Justice, the Central Authority for the purpose of the Hague Convention.

32.  On 24 August 2011 the Bulgarian Ministry of Justice informed the applicant that the request had been refused as the Hague Convention had not entered into force between Romania and Bulgaria (see paragraph 43 below).

33.  On 26 October 2011 the Romanian Ministry of Justice also informed the applicant and her counsel about the outcome of the proceedings before the Bulgarian Central Authority. They advised the applicant to apply directly to the Bulgarian courts (under Article 29 of the Hague Convention) or to the Bulgarian Ministry of Justice (either directly or through the Romanian Ministry of Justice, under the provisions of the European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children - “the Luxembourg Convention” - see paragraph 45 below).

34.  On 12 December 2011 the Romanian Ministry of Justice transmitted to the Bulgarian Ministry of Justice a request lodged by the applicant under the Brussels II bis Regulation, which in its view took precedence over the Hague Convention. In the absence of any response to that request, on 9 February 2012 the Romanian Ministry of Justice repeated the request to the Bulgarian Ministry of Justice.

35.  On 7 February 2012 the Bulgarian Ministry of Justice informed its Romanian counterpart that it had refused the request. In its view the Hague Convention did not apply, as the child had entered Bulgarian territory before the entry into force of that Convention between Romania and Bulgaria. Consequently, the Brussels II bis Regulation did not apply either, as it was not meant to be applicable outside the scope of the Hague Convention.

H.  Custody proceedings before the Bulgarian courts

36.  On 22 December 2008 R.E.N. unsuccessfully brought proceedings in Bulgaria seeking custody of the child. Those proceedings were terminated on 25 October 2010 by the Pazardzhik District Court; the decision became final on 11 November 2010.

37.  At the beginning of 2011 R.E.N. brought a second set of proceedings in Bulgaria before the Pazardzhik District Court in which he sought custody of the child. His request for interim measures, namely for the child to live with his parents in Bulgaria and for him to have custody of her, as well as for the suspension of the enforcement proceedings brought in 2010 in Bulgaria by the applicant, was refused by the same court in April 2011. The court suspended the proceedings on 2 December 2011 as it had determined that another set of proceedings - between the same parties concerning the same issue - was pending in Romania (see paragraphs 9 to 17 above).

38.  Following the 9 January 2012 final judgment of the Romanian courts granting custody of the child to the applicant (see paragraph 17 above), on 23 October 2012 R.E.N. brought a third set of proceedings before the Pazardzhik District Court, seeking a change of custody due to a change in circumstances. The Pazardzhik District Court terminated these proceedings on 22 November 2012 as it found that the second set of proceedings R.E.N. had brought before it (see the preceding paragraph) concerning the same issue and involving the same parties was still pending, as those proceedings had only been suspended on 2 December 2011 and not terminated.

39.  Subsequently R.E.N. asked the court to terminate the second set of proceedings he had brought, and the court did so on 28 November 2012. On 10 December 2012 R.E.N. appealed against the termination of the third set of proceedings he had brought. In a final decision of 25 March 2013 the Pazardzhik Regional Court granted his request, quashed the termination of those proceedings and remitted the case to the first-instance court for examination. Within the context of those proceedings, in 2014 R.E.N. sought as a protective measure (обезпечителна мярка) the suspension of the enforcement proceedings of the Romanian judgment granting custody to the applicant. His request was granted on 9 July 2014 (see paragraph 28 above). No information is available regarding developments in those proceedings.

II.  RELEVANT DOMESTIC LAW

40.  Section 1(1) of the Bulgarian State and Municipality Responsibility for Damage Act 1988 (the SMRDA) provides, as of July 2006, that the municipalities and the State are liable for damage caused to private individuals and legal entities as a result of unlawful decisions, acts or omissions on the part of their own authorities or officials while discharging their administrative duties. Section 4 of the SMRDA provides that the State shall be strictly liable for compensation for all damage which is the direct and proximate result of an unlawful act or omission on its part. A claim for damages can be made after the administrative act in question has been quashed in prior proceedings. The lawfulness of administrative actions or failure to act is established by the court within the context of proceedings for damages (Article 204 (4) of the Bulgarian Code of Administrative Procedure). Persons seeking redress for damage occasioned in circumstances falling within the scope of the SMRDA have no claim under the general law of tort, as the SMRDA is a lex specialis and excludes the application of the general regime (реш. № 1370/1992 г. от 16 декември 1992 г. по гр.д. № 1181/1992 г. на ВС, ІV г.о.; реш. от 29 юли 2002 г. по гр.д. № 169/2002 г. на СГС, ГК, ІVб отд.).

41.  Articles 622 and 623 of the 2007 Bulgarian Code of Civil Procedure provide that an applicant can request the recognition and enforcement in Bulgaria of a foreign judgment adopted by the courts of another European Union Member State. Such a request should be submitted before the competent regional court in Bulgaria and may be subject to appeal before courts at two further levels of jurisdiction - respectively the Sofia Court of Appeal and the Supreme Court of Cassation.

III.  RELEVANT INTERNATIONAL LAW

42.  The relevant Articles of the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (“the Hague Convention”) and the interpretation given to the concept of “the child’s best interests” are described in Neulinger and Shuruk v. Switzerland ([GC], no. 41615/07, §§ 57-68, ECHR 2010).

43.  In addition to the Articles described in Neulinger and Shuruk, the following Articles of the Hague Convention were quoted in the domestic proceedings:

Article 29

“This Convention shall not preclude any person, institution or body who claims that there has been a breach of custody or access rights within the meaning of Article 3 or 21 from applying directly to the judicial or administrative authorities of a Contracting State, whether or not under the provisions of this Convention.”

Article 38 § 4

“The accession will have effect only as regards the relations between the acceding State and such Contracting States as will have declared their acceptance of the accession. Such a declaration will also have to be made by any Member State ratifying, accepting or approving the Convention after an accession. Such declaration shall be deposited at the Ministry of Foreign Affairs of the Kingdom of the Netherlands; this Ministry shall forward, through diplomatic channels, a certified copy to each of the Contracting States.”

44.  Romania ratified the Hague Convention on 20 November 1992 and Bulgaria ratified it on 20 May 2003. According to the procedure put in place under the Hague Convention, it entered into force between the two States on 1 June 2013, after Romania had accepted Bulgaria’s accession on 12 March 2013.

45.  The relevant provisions of the Council of Europe’s European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children, adopted in 1980 in Luxembourg (“the Luxembourg Convention”), read as follows:

Article 4

“1.  Any person who has obtained in a Contracting State a decision relating to the custody of a child and who wishes to have that decision recognised or enforced in another Contracting State may submit an application for this purpose to the central authority in any Contracting State.

3.  The central authority receiving the application, if it is not the central authority in the State addressed, shall send the documents directly and without delay to that central authority.”

Article 5

“1.  The central authority in the State addressed shall take or cause to be taken without delay all steps which it considers to be appropriate, if necessary by instituting proceedings before its competent authorities, in order:

a)  to discover the whereabouts of the child;

b)  to avoid, in particular by any necessary provision­al measures, prejudice to the interests of the child or of the applicant;

c)  to secure the recognition or enforcement of the decision;

d)  to secure the delivery of the child to the applicant where enforcement is granted;

e)  to inform the requesting authority of the measures taken and their results.”

Article 13

“1.  A request for recognition or enforcement in another Contracting State of a decision relating to custody shall be accompanied by:

a)  a document authorising the central authority of the State addressed to act on behalf of the applicant or to designate another representative for that purpose;

b)  a copy of the decision which satisfies the necessary conditions of authenticity;

c)  in the case of a decision given in the absence of the defendant or his legal representative, a document which establishes that the defendant was duly served with the document which instituted the proceedings or an equivalent document;

d)  if applicable, any document which establishes that, in accordance with the law of the State of origin, the decision is enforceable;

e)  if possible, a statement indicating the whereabouts or likely whereabouts of the child in the State addressed;

f)  proposals as to how the custody of the child should be restored.

2.  The documents mentioned above shall, where necessary, be accompanied by a translation according to the provisions laid down in Article 6.”

46.  European Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility (“the Brussels II bis regulation” or “the Regulation”) reads as follows:

Preamble

“(17)  In cases of wrongful removal or retention of a child, the return of the child should be obtained without delay, and to this end the Hague Convention of 25 October 1980 would continue to apply as complemented by the provisions of this Regulation, in particular Article 11. The courts of the Member State to or in which the child has been wrongfully removed or retained should be able to oppose his or her return in specific, duly justified cases. However, such a decision could be replaced by a subsequent decision by the court of the Member State of habitual residence of the child prior to the wrongful removal or retention. Should that judgment entail the return of the child, the return should take place without any special procedure being required for recognition and enforcement of that judgment in the Member State to or in which the child has been removed or retained.”

Article 10 - Jurisdiction in cases of child abduction

“In case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another member State and:

(a) each person, institution or other body having right of custody has acquiesced in the removal or retention; or

(b) the child has resided in that other member State for a period of at least one year after the person, institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and at least one of the following conditions is met:

(i) within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no request for return has been lodged before the competent authorities of the Member State where the child has been removed or is being retained;

(ii) a request for return lodged by the holder of rights of custody has been withdrawn and no new request has been lodged within the time limit set in paragraph (i);

(iii) a case before the court in the Member State where the child was habitually resident immediately before the wrongful removal or retention has been closed pursuant to Article 11(7);

(iv) a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention.”

Article 11 - Return of the child

“1.  Where a person, institution or other body having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of the Hague Convention [..], in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention, paragraphs 2 to 8 shall apply.

...

3.  A court to which an application for return of a child is made as mentioned in paragraph 1 shall act expeditiously in proceedings on the application, using the most expeditious procedures available in national law.

Without prejudice to the first subparagraph, the court shall, except where exceptional circumstances make this impossible, issue its judgment no later than six weeks after the application is lodged.

4.  A court cannot refuse to return a child on the basis of Article 13 (b) of the [...] Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return.

5.  A court cannot refuse to return a child unless the person who requested the return of the child has been given an opportunity to be heard.

6.  If a court has issued an order on non-return pursuant to Article 13 of the 1980 Hague Convention, the court must immediately either directly or through its central authority, transmit a copy of the court order on non-return and of the relevant documents, in particular a transcript of the hearings before the court, to the court with jurisdiction or central authority in the Member State where the child was habitually resident immediately before the wrongful removal or retention, as determined by national law. The court shall receive all the mentioned documents within one month of the date of the non-return order.

7.  Unless the courts in the Member State where the child was habitually resident immediately before the wrongful removal or retention have already been seized by one of the parties, the court or central authority that receives [a copy of an order on non-return pursuant to Article 13 of the Hague Convention and of the documents relevant to that order] must notify it to the parties and invite them to make submissions to the court, in accordance with national law, within three months of the date of notification so that the court can examine the question of custody of the child...”

Article 21 - Recognition of a judgment

“1.  A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required.”

Article 28 - Enforceable judgments

“1.  A judgment on the exercise of parental responsibility in respect of a child given in a Member State which is enforceable in that Member State and has been served shall be enforced in another Member State when, on the application of any interested party, it has been declared enforceable there.”

Article 47 - Enforcement procedure

“1.  The enforcement procedure is governed by the law of the Member State of enforcement.”

Article 59 - Relation with other instruments

“1.  Subject to the provisions of Articles 60, 63, 64 and paragraph 2 of this Article, this Regulation shall, for the Member States, supersede conventions existing at the time of entry into force of this Regulation which have been concluded between two or more Member States and relate to matters governed by this Regulation.”

Article 60 - Relations with certain multilateral conventions

“In relations between Member States, this Regulation shall take precedence over the following Conventions in so far as they concern matters governed by this Regulation:

(a) the Hague Convention of 5 October 1961 concerning the Powers of Authorities and the Law Applicable in respect of the Protection of Minors;

(b) the Luxembourg Convention of 8 September 1967 on the Recognition of Decisions Relating to the Validity of Marriages;

(c) the Hague Convention of 1 June 1970 on the Recognition of Divorces and Legal Separations;

(d) the European Convention of 20 May 1980 on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children;

and

(e) the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.”

Article 62 - Scope of effects

“1.  The agreements and conventions referred to in Articles 59(1), 60 and 61 shall continue to have effect in relation to matters not governed by this Regulation.

2.  The conventions mentioned in Article 60, in particular the 1980 Hague Convention, continue to produce effects between the Member States which are party thereto, in compliance with Article 60.”

Article 72 - Entry into force

“This Regulation shall enter into force on 1 August 2004.

The Regulation shall apply from 1 March 2005, with the exception of Articles 67, 68, 69 and 70, which shall apply from 1 August 2004.

This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaty establishing the European Community.”

47.  Both Romania and Bulgaria became members of the European Union on 1 January 2007.

48.  The relevant provision of the 1959 Treaty between Bulgaria and Romania on legal assistance in civil, family and criminal matters reads as follows:

Article 44

“1.  Final court ... decisions rendered in respect of non-pecuniary matters (de natură nepatrimonială) by one Contracting Party are enforceable on the territory of the other Contracting Party without any additional proceedings, if no court [...] of the latter Contracting Party has rendered a final decision that constitutes res judicata in the case, or if the latter Contracting Party does not have exclusive jurisdiction in the matter under the present Treaty.”

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION BY ROMANIA AND BULGARIA

49.  The applicant complained about the rupture of her family ties with her daughter caused by the lack of a prompt reaction from the Romanian and Bulgarian authorities in respect of return of the child, the length of the custody proceedings in Romania, and the enforcement of her custody rights over the child. She relied in substance on Article 8 of the Convention, which reads as follows:

“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

A.  Admissibility

50.  The Bulgarian authorities considered that the applicant had failed to exhaust all available domestic remedies in Bulgaria and requested the Court to declare the application inadmissible. In particular, the applicant lodged her application with the Court before the end of the proceedings for recognition of the Romanian custody judgment in Bulgaria. In addition, even if it could be accepted that the application has been submitted in good time and not prematurely, the applicant should have brought a claim for damages under section 1 of the SMRDA (see paragraph 40 above).

51.  The Court observes in respect of the first argument, above, that it is not in dispute between the parties that the proceedings for recognition in Bulgaria of the final Romanian judgment granting custody to the applicant have now been completed (see paragraph 26 above). In other words, the Bulgarian State has been afforded the opportunity of preventing the violation alleged against it (see Šneersone and Kampanella v. Italy, no. 14737/09, § 66, 12 July 2011; see also Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). The Court has previously held that in principle applicants are obliged to make a diligent effort to exhaust the domestic remedies available to them before submitting an application to the Court. However, exhaustion has been deemed to have been complied with where the final stage of the exhaustion of the domestic remedies takes place after the application has been submitted but before the Court decides on its admissibility (see, for example, Yakup Köse v. Turkey (dec.), no. 50177/99, 2 May 2006; see also Šneersone and Kampanella, cited above, § 66).

52.  As to the second argument above, namely that the applicant failed to bring a claim for damages, the Court observes that, apart from mentioning such a possibility, the Government have neither explained why nor demonstrated how a claim under the SMRDA can indeed constitute a remedy in situations such as that of the applicant. The Court has already held in this connection that a purely compensatory remedy is not sufficient to address the violations resulting from delays in the proceedings which may have an impact on the applicant’s family life (see Macready v. the Czech Republic, nos. 4824/06 and 15512/08, § 48, 22 April 2010; Bergmann v. the Czech Republic, no. 8857/08, § 45, 27 October 2011; Furman v. Slovenia and Austria, no. 16608/09, § 95, last sentence). The Court accordingly is not satisfied that such a claim would have constituted an effective remedy in the applicant’s case.

53.  It follows that the Bulgarian Government’s preliminary objection of non-exhaustion of domestic remedies must be dismissed.

54.  Furthermore, the Court notes that this complaint is not manifestly ill-founded, within the meaning of Article 35 § 3 (a) of the Convention, and that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

1.  The parties’ observations

55.  The applicant reiterated that despite her best efforts over several years she had not been able to reunite with her daughter. She considered that the various proceedings before the Romanian and the Bulgarian authorities had lasted too long and that the authorities had failed to react promptly and to return the abducted child home.

56.  The Romanian Government accepted that the relationship between the applicant and her daughter fell within the sphere of family life under Article 8 of the Convention. However, they considered that the Romanian authorities had not interfered with the applicant’s rights. In particular, they argued that the length of the custody proceedings had been reasonable, given the circumstances of the case. They pointed out that the applicant had been responsible for the quashing of the first decision rendered, in so far as she had given incorrect information regarding R.E.N.’s address. They further contended that although they appeared simple at first sight, the proceedings had been complex, in so far given that two States were involved and substantial evidence had had to be brought from Bulgaria and translated. This evidence had had to be carefully evaluated by the courts with the best interests of the child in mind. There had been no periods of inactivity during the proceedings.

57.  The Romanian Government pointed out that throughout the proceedings, except for very short periods of time, the applicant had had an enforceable custody order in her favour. However, it had not been until 1 July 2011 that she had sought the Romanian authorities’ assistance in securing the return of her child. Moreover, they considered that the enforcement proceedings had been unsuccessful because of the position of the Bulgarian authorities, who had been best suited to respond to this part of the complaint.

58.  The Bulgarian Government submitted firstly that the Hague Convention had not been in force between Bulgaria and Romania at the time of the facts, so it could not have been applied to the applicant’s related request and she had been informed accordingly. Further, the relevant domestic authorities had not remained passive but had responded to all of the requests that the applicant had addressed to them. Thus, between 2010 and 2011 the enforcement officer had actively pursued enforcement proceedings in connection with the first-instance Romanian judgment granting custody of the child to the applicant after the Bulgarian courts had rapidly recognised that judgment. Lastly, proceedings brought by R.E.N. for a change of custody were still pending in Bulgaria and this precluded the authorities from intervening in any way before the courts determined the situation.

2.  The Court’s assessment

(a)  General principles

59.  The Court has formulated the following general principles when examining the State’s positive obligations in the sphere of personal relations between parents and their children (see M. and M. v. Croatia, no. 10161/13, §§ 176-181, ECHR 2015 (extracts), case-law references omitted):

“176.  While the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities, there may in addition be positive obligations inherent in effective “respect” for private and family life and these obligations may involve the adoption of measures in the sphere of the relations of individuals between themselves. Children and other vulnerable individuals, in particular, are entitled to effective protection.

177.  As regards the right to respect for private life, these obligations may involve the adoption of measures designed to secure that right, including both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals’ rights, and the implementation, where appropriate, of specific measures.

178.  As regards the right to respect for family life, these include an obligation for the national authorities to take measures with a view to reuniting parents with their children and to facilitate such reunions. This also applies to cases where contact and custody disputes concerning children arise between parents and/or other members of the children’s family.

179.  The Court reiterates that the ineffective, and in particular delayed, conduct of custody proceedings may give rise to a breach of positive obligations under Article 8 of the Convention.

180.  It further reiterates that whilst Article 8 contains no explicit procedural requirements, the decision-making process must be fair and such as to afford due respect to the interests safeguarded by Article 8. In particular, in a number of
child-care cases the Court has examined whether the parents had been sufficiently involved in the decision-making process, with a view to establishing whether their rights under Article 8 had been violated.

181. Having regard to Article 12 of the Convention on the Rights of the Child (see paragraphs 94 and 97 above, and in particular point 32 of the General comment no. 12 of the Committee on the Rights of the Child), the Court finds that the same considerations apply mutatis mutandis in any judicial or administrative proceedings affecting children’s rights under Article 8 of the present Convention. In particular, in such cases it cannot be said that the children capable of forming their own views were sufficiently involved in the decision-making process if they were not provided with the opportunity to be heard and thus express their views.”

60.  The general principles on the relationship between the Convention and the Hague Convention, the scope of the Court’s examination of child international child abduction applications, the best interests of the child and on the procedural obligations of the States, are laid down in the Court’s Grand Chamber judgment in the case of X v. Latvia ([GC], no. 27853/09, §§ 93-102 and 107, ECHR 2013) and also in a number of other judgments concerning proceedings for return of children under the Hague Convention (see notably Maumousseau and Washington v. France, no. 39388/05, § 68, 6 December 2007; Ignaccolo-Zenide v. Romania, no. 31679/96, § 102, ECHR 2000-I; Iosub Caras v. Romania, no. 7198/04, § 38, 27 July 2006; Shaw v. Hungary, no. 6457/09, § 72, 26 July 2011; Adžić v. Croatia, no. 22643/14, §§ 93-95, 12 March 2015; and R.S. v. Poland, no. 63777/09, §§ 54-62, 21 July 2015).

(b)  Application of those principles to the facts of the case

61.  The applicant’s complaint concerned the respondent States’ alleged failure to secure contact with her estranged daughter. It is not disputed that these matters pertain to “family life” within the meaning of Article 8 of the Convention and that this provision is applicable. On the facts of the present case, the Court observes that the primary interference with the applicant’s right to respect for her family life may not be attributed to either of the respondent States but rather to the actions of the child’s grandparents, third parties, who had retained the child in Bulgaria (see R.S. v. Poland, no. 63777/09, §§ 56-57, 21 July 2015; López Guió v. Slovakia, no. 10280/12, § 85, 3 June 2014). It therefore remains to be ascertained whether there were any positive obligations on the part of the respondent States with a view to securing the applicant’s right to respect for her family life and, if so, whether any such positive obligations have been complied with by the respondent States.

(i)  In respect of Romania

62.  The Court notes at the outset that the complaint against Romania comprises two aspects. It concerns, on the one hand, the length of the custody proceedings and, on the other hand, the effectiveness of the return proceedings instituted under the international mechanisms.

(α)  Custody proceedings

63.  The court proceedings in which the applicant sought custody of her daughter started on 29 July 2008 and ended on 9 January 2012, when the Court of Appeal granted the applicant custody rights. The proceedings thus lasted for three years and six months.

64.  The Court acknowledges that custody matters are of a very sensitive nature and have serious repercussions for the upbringing and well-being of the child in question and thus must be carefully weighed by the domestic authorities in order to secure the best interests of the child. However, notwithstanding the seriousness of the issue, leaving such matters unresolved for an extended period of time cannot be justified as being in the best interests of the child, whose custody and residence should be swiftly clarified by the authorities. The Court thus considers that by their very nature custody proceedings require the administrative and judicial authorities concerned to act expeditiously. Having regard to its case-law on custody proceedings (see, notably, Eberhard and M. v. Slovenia, no. 8673/05 and 9733/05, §§ 138-142, 1 December 2009, and M. and M., cited above, § 182), the Court considers that in the present case, the length of the proceedings alone may lead it to find that the respondent State has failed to discharge its positive obligations under Article 8 of the Convention.

65.  Furthermore, the Court does not consider that the complexity of the matter can justify the length of the proceedings in the instant case. It also notes that the applicant took no steps that could have significantly contributed to the delay in the proceedings. She engaged in finding R.E.N.’s correct address, made supplementary efforts to secure travel documents for her daughter in order to allow the court to interview her without further delay, and, together with her counsel, participated actively in the proceedings.

66.  The Court admits that it was necessary to quash the first judgment delivered by the District Court, given that it had been rendered without allowing R.E.N. to take part in the trial. Although this added significantly to the length of the proceedings, it is understandable that the need for parents to participate actively is important and needed to be secured in the instant case (see Glaser v. the United Kingdom, no. 32346/96, § 70, 19 September 2000, and Manic v. Lithuania, no. 46600/11, § 104, 13 January 2015). However, the Court further reiterates that a child’s best interests may, depending on their nature and seriousness, override those of the parents (see, mutatis mutandis, Neulinger and Shuruk, cited above, § 134). In the present case, the Court cannot but note that while the courts did their utmost to secure respect for the father’s procedural rights, they failed nevertheless to address in any manner that which was at issue not only for the mother but also for her child, who had been separated from her primary caregiver during the proceedings. In particular, the Court notes that save for the first three months of the proceedings, the applicant and her child were deprived of any contact because of the child’s abduction by the paternal parents and her removal from Romanian territory. Although notified by the applicant in a timely manner about this situation (see paragraph 10 above), no action seems to have been taken by the Romanian authorities either to address the matter or, at least, to speed up the proceedings in order to provide a solution to the dispute. A final decision in the matter would have allowed the parents to settle in a timely manner the dispute concerning the child’s residence.

67.  Furthermore, as the Hague Convention was not applicable between the parties at the time in question (see paragraph 44 above), a prompt decision in respect of the custody matter would have been essential in order to allow the applicant to institute enforcement proceedings in Bulgaria under the Luxembourg Convention (see paragraph 45 above).

68.  For these reasons, given the relative lack of complexity of the case, the high stakes in the proceedings, the parties’ respective attitudes, and the courts’ attitude, the Court finds that there has been a violation of Article 8 of the Convention in the present case as regards the applicant’s right to respect for her family life in so far as the length of the custody proceedings is concerned.

(β)  Return proceedings

69.  The Court notes that the child was removed from Romania in November 2008. However, it was not until 1 July 2011 that the applicant sought the Ministry of Justice’s assistance in securing her return. The applicant did not explain why she had waited so long to institute proceedings for the return of her child from Bulgaria. The Hague Convention itself urges estranged parents to act promptly, so that the return of their children can be ordered within a year of the date of their wrongful removal (Article 12 of the Hague Convention; see Neulinger and Shuruk, cited above, § 57).

70.  The Court is satisfied that, once the matter had been referred to them, the Romanian authorities acted promptly, seeking clarifications, advising the applicant on the best course of action and effectively communicating with the Bulgarian authorities, thus striving to secure a timely decision on the matter (see paragraphs 30 and subsequent, above).

71.  The Court reiterates that the Hague Convention was not in force between the two States at the relevant time (see paragraph 44 above) and considers that a prompt decision in respect of the custody matter would have been essential in order to allow the applicant to institute enforcement proceedings in Bulgaria under the Luxembourg Convention (see paragraphs 45, 68 and 67 above).

72.  In any event, during the proceedings on the merits of the custody matter, the applicant had at her disposal a faster and more effective means of securing the return of the child - that is to say, lodging an application for interim measures, a course of action of which the applicant did in fact avail herself (see paragraph 18 above). The Court reiterates that the child was removed from her mother’s home soon after the custody proceedings started. However, the applicant waited for three years after the removal, before applying to the courts with her request. The Court accepts that in deciding not to change during the proceedings the child’s country of residence from Bulgaria (where she became integrated in the three years that she spent in her grandparents’ home) to Romania the domestic authorities took a sensible decision in the child’s best interests (see, mutatis mutandis, Neulinger and Shuruk, cited above, §§ 57-68). Lastly on this point, the Court reiterates that the mere fact that the request was refused by the courts does not deprive it of its effectiveness.

73.  The foregoing considerations are sufficient to enable the Court to conclude that the Romanian authorities promptly assisted the applicant in her attempts to have her child returned to her, in so far as the matters were brought to their attention and fell within their jurisdiction. There has accordingly been no violation of Article 8 of the Convention in this respect.

(ii)  In respect of Bulgaria

74.  The Court notes that the applicant approached the Bulgarian authorities on several occasions, seeking to be reunited with her child.

75.  The first time was as early as 2010, when the Bulgarian courts recognised the first-instance Romanian court judgment granting custody to the applicant (see paragraph 19 above). Although that judgment was not final, she was able to bring enforcement proceedings in Bulgaria on 30 August 2010. The enforcement officer actively pursued the handover of the child to the applicant and was attentive to the need to organise preparatory measures to facilitate the smooth reunification of the child and the applicant (see paragraphs 20 to 23 above for details regarding the specific actions undertaken by the enforcement officer and their sequence and timing). While those enforcement proceedings were suspended on 2 June 2011 by the Supreme Court of Cassation (see paragraph 23 above), the Court notes that that suspension did not call into question the Bulgarian authorities’ diligence to ensure the applicant’s right to effective enjoyment of her family life. The reason was that she only obtained a final judgment granting her custody on 9 January 2012 (see paragraph 16 above) and it is only as of that date that the Bulgarian authorities could be held responsible for the enforcement of the custody judgment.

76.  The applicant further turned to the Bulgarian authorities in August 2011, asking them to act under the Hague Convention to secure the return of her child. The Court observes that, as noted above in paragraph 68, the Hague Convention was not in force between Bulgaria and Romania at the time (it only became so in June 2013 - see paragraph 43 above) and the Bulgarian authorities informed the applicant accordingly (see paragraph 31 above).

77.  The Romanian authorities then applied in December 2011 to their Bulgarian counterparts on behalf of the applicant, seeking the return of the applicant’s child under the Brussels II bis regulation. The Court notes that the Regulation was binding in its entirety, directly applicable in Bulgaria at the time and its provisions took precedence over other international instruments governing the same matters (see paragraph 45 above, Articles 72, 59 and 60(e)). Under the Regulation (specifically, Articles 11 and 21 - see paragraph 45 above), the applicant could have sought either the return of her child or the recognition and enforcement of the Romanian final judgment of 9 January 2012 granting her custody of the child.

78.  As regards the return of the child, the Court notes that it was the Romanian courts which had primary jurisdiction to decide on such requests, other than under the specific exceptional circumstances enumerated in Article 10 of the Regulation (see paragraph 45 above). Assuming that the case of the applicant’s child fell within the scope of those exceptions, the Bulgarian courts would have had jurisdiction to decide on the applicant’s request for the return of her child and they would have had a maximum of six weeks in which to deliver such a decision (Article 11 (3) - see paragraph 45 above). However, on 7 February 2012 the Bulgarian authorities, in reply to the request for the return of the child under the Regulation, stated that the Regulation was not applicable in Bulgaria in and of itself as it was rather a supplementary instrument to the Hague Convention, whose provisions governed questions regarding the return of wrongfully removed children (see paragraph 34 above).

79.  As regards the recognition of the final Romanian judgment granting custody to the applicant, the Court notes that Article 21 of the Brussels II bis regulation provides that such a judgment is to be recognised without any special procedure (see paragraph 45 above). The Romanian judgment granting custody to the applicant became final on 9 January 2012; she sought its recognition and enforcement in Bulgaria after that date. The courts examined her request under the provisions of the 2007 Bulgarian Code of Civil Procedure, which did not stipulate time-limits for deciding on such a request (see paragraph 40 above).

80.  The Court does not consider that it should rule on the question of which of the above-described procedures the Bulgarian authorities should have followed in order to facilitate the reunion of the applicant and her child, in line with their positive obligations under Article 8 of the Convention (see, mutatis mutandis, R.S. v. Poland, cited above, § 69). It notes that the applicant made her different requests largely around the same time: in December 2011 for the return of the child (see paragraph 34 above) and in early 2012 for the recognition of the custody judgment (see paragraph 25 above). The Court finds that the relevant Bulgarian authorities had to take a decision - in respect of the child’s return or in respect of the request for recognition and enforcement of the final Romanian custody judgment - swiftly, in order to ensure effective respect for the applicant’s Convention rights (see paragraph 63 above). In either of the scenarios discussed above, enforcement of the courts’ decision would have occurred subsequent to that decision being made and would have followed the national law (Article 47 - see paragraph 46 above).

81.  The Court then notes that on 12 January 2012 the highest Bulgarian court quashed the recognition of the Romanian judgment and remitted the case to the first-instance court for a new decision (see paragraph 25 above). Following three subsequent decisions, the matter was finally decided and recognition and enforcement granted to the applicant. However, this only happened on 15 May 2014 (see paragraph 26 above). While this decision allowed the applicant to start enforcement proceedings seeking the handover of the child to her, in line with the Romanian custody judgment, it was taken well over two years after the judgment had become enforceable. In view of the circumstances - namely that the proceedings concerned the conduct of a relationship between a parent and a minor child who had been separated for a number of years - the Court considers that the Bulgarian courts should have acted with exceptional diligence (see Ignaccolo-Zenide, cited above, § 102, in which the Court referred to the need for “urgent handling”). The Court finds that, in order to prevent a situation in which the passage of time determines a matter rather than, or despite, the competent judicial authorities, the recognition proceedings in Bulgaria should have been conducted much more rapidly than they were.

82.  In view of the above conclusion, the Court considers that it is unnecessary to examine whether the decision of the Pazardzhik Regional Court of 9 July 2014 to suspend the enforcement of the Romanian custody judgment pending a decision in the proceedings brought by R.E.N. for a change of custody (see paragraphs 28 and 39 above) was compatible with the authorities’ positive obligation to ensure the effective protection of the applicant’s right to family life with her daughter. The delay that occurred as a result of the time it took the Bulgarian courts to decide on the request for recognition and enforcement of the final Romanian custody judgment is sufficient for the Court to conclude that there has been a violation of Article 8 of the Convention in respect of the applicant’s ability to effectively enjoy her right to family life. The Court emphasises in this connection that this conclusion is without prejudice to any potential subsequent decision of the competent Bulgarian courts as to what the best interests of the child may be, bearing in mind the time that has elapsed since the child started living in Bulgaria (see, mutatis mutandis, Maire v. Portugal, no. 48206/99, § 77, ECHR 2003-VII). Importantly, and for the avoidance of doubt, in view of the fact that the child lost contact with her mother at the age of four and has uninterruptedly lived with her paternal grandparents in Bulgaria for almost eight years since then, the Court underscores that the present judgment should in no way be interpreted as suggesting that the Bulgarian authorities should take steps to order the child’s return to Romania.

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

83.  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.”

84.  The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award her any sum on that account.

FOR THESE REASONS, THE COURT

1.  Declares, unanimously, the application admissible concerning Romania and Bulgaria;

 

2.  Holds, by six votes to one, that there has been a violation of Article 8 of the Convention in respect of Romania concerning the custody proceedings;

 

3.  Holds, unanimously, that there has been no violation of Article 8 of the Convention in respect of Romania concerning the proceedings under the Hague Convention;

 

4.  Holds, unanimously, that there has been a violation of Article 8 of the Convention in respect of Bulgaria.

Done in English, and notified in writing on 19 July 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

  Marialena Tsirli                                                                      András Sajó
       Registrar                                                                              President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Sajó is annexed to this judgment.

A.S.
M.T.




PARTLY DISSENTING OPINION OF JUDGE SAJÓ

1.  While I agree with my colleagues in respect of the responsibility of Bulgaria, to my regret I have to dissent in so far as the finding of a violation concerns Romania.

2.  The custody proceedings in Romania lasted sixteen months and the judgment of the court of first instance was quashed because the respondent was not properly summoned. The applicant had failed to provide the proper address for the respondent. The second stage of the custody proceedings lasted twenty-three months at two levels of jurisdiction. Some of the delays in that procedure were caused by the applicant (improper authorisation to bring the child to a hearing from Bulgaria to Romania), and translation needs added to some extent to the length of the proceedings. The litigation concerned full custody: the mother already had custody and was entitled, in principle, to maintain relations with her child. Moreover, she failed to use the appropriate legal means to have her rights effectively protected (she did not avail herself of the recourse available under the Hague Convention). Given these considerations I see no reason for special celerity in this case. Otherwise, proceedings lasting slightly less than two years at two levels of jurisdiction cannot be considered excessive, especially given that the child and the father were abroad and some of documents needed translation.

3.  In its finding of excessive length, the Court relies on Eberhard and M. v. Slovenia (nos. 8673/05 and 9733/05, 1 December 2009). That case does not lend much support to the conclusions of the present judgment. First, the stake (the intensity of the interference by a private party in parental rights) was higher: it concerned an application for custody and a denial of contact. In the present case the applicant had custody (shared) and there was no issue of denial of contact (except that the applicant should have attempted that in Bulgaria). The Slovenian court proceedings at issue lasted for more than four years and six months and this cannot be considered comparable to a period of less than two years. Finally the father in the present case, contrary to the mother in Eberhard, did not delay the proceedings.

4.  I find it particularly troubling that the Court found against the Romanian authorities to the effect that they did their utmost to secure respect for the father’s procedural rights while allegedly totally disregarding the best interests of the child. The best interests of the child cannot become a talismanic trump-right. This Court is not in a position to determine what the best interests of the child would have been. It has no factual grounds on which to say that the child would have been better served if not separated from the primary caregiver, even in disregard of due process. De facto, during the proceedings which started two years after the abduction, the grandparents were the primary caregivers and it cannot be held, in the name of the best interests of the child, that the respondent in the first set of proceedings should not have been duly summoned. The best interests of the child must be determined in harmony with parental rights and cannot be a ground to disregard the rule of law.