European Court of Human Rights

 

 

 

FOURTH SECTION

 

 

 

 

 

 

CASE OF OLINDRARU v. ROMANIA

 

(Application no. 1490/17)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

 

19 March 2019

 

 

 

This judgment is final but it may be subject to editorial revision.

In the case of Olindraru v. Romania,

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

Paulo Pinto de Albuquerque, President,
Egidijus Kūris,
Iulia Antoanella Motoc, judges,
and Andrea Tamietti, Deputy Section Registrar,

Having deliberated in private on 26 February 2019,

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

PROCEDURE

1. The case originated in an application (no. 1490/17) against Romania 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 Teodora-Adela Olindraru ("the applicant"), on 20 December 2016.

2. The applicant was represented by Ms M.S. Cigan, a lawyer practising in Oradea. The Romanian Government ("the Government") were represented by their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs.

3. On 21 September 2017 notice of the application was given to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1988 and lives in Beiuş.

5 . The applicant was married to I.T. and had a daughter with him, born in 2011. In May 2013 the applicant left the marital home and the child remained with I.T. On 21 May and 5 June 2013 respectively I.T. and the applicant filed for divorce and each sought sole custody of the child.

6 . On 10 December 2013 the Beiuş District Court granted the couple's divorce and joint custody of the child, and decided that the child should remain with her father. In a final decision of 17 June 2014 the Bihor County Court quashed the above decision in part and decided that the child should live with the applicant. I.T. refused to hand over the child.

A. Enforcement attempts

7 . On 4 July 2014 the applicant applied to the bailiff's office for enforcement of the decision of 17 June 2014. On 5 August and 25 September 2014 I.T. went to the bailiff's office alone and told the bailiff that the child refused to live with her mother. A representative of the Bihor Directorate General for Social Welfare and Child Protection ("the child-protection authority") was also present at these meetings.

8 . On 3 October 2014 the bailiff and the applicant lodged an action with the Oradea District Court, seeking an order that I.T. pay her 1,000 Romanian lei (RON - approximately 225 euros (EUR)) for each day of non-enforcement of the custody order. On 11 May 2015 the court dismissed the action on the grounds that I.T. had not opposed the enforcement and that it had been the child who had refused to go with her mother. It appears that neither the applicant nor the bailiff appealed against this decision.

9 . On 6 October 2014 the bailiff lodged a criminal complaint against I.T. for non-compliance with a court order, but on 23 January 2015 the prosecutor's office attached to the Oradea District Court decided not to charge I.T. It considered that the reports drafted by the bailiff after each encounter with I.T. showed that it had not been I.T., but the child who had opposed the enforcement.

10 . On 4 November 2014 the bailiff, accompanied by a social worker from the child protection authority and the police, went to I.T.'s home. They asked to see the child to verify if she wanted to go with her mother. Initially I.T. refused, but eventually he brought the child out. The bailiff noted as follows:

"After [the mother] talked with the minor, I asked the minor if she wanted to leave with her mother, and she gave me a non-committal answer. However, I should note that, although the minor did not show an aversion towards her mother, she did not wish to leave with her mother. The social worker reached the same conclusion."

11 . The social worker who was also present at the meeting noted as follows:

"The father refused to bring out the child, became uncooperative but eventually agreed that [the child] sit near her mother. The atmosphere was tense, the parents made reproaches to each other in front of the child and they spoke to each other in a raised voice.

When the mother tried to hold the child in her arms, the child started crying and held the hand of her father's current wife tightly.

After the child sat for a while with the mother, [the bailiff] asked the child if she wished to leave with her mother. Although the child did not show an aversion towards her mother, she refused to leave with her."

12 . On 13 November 2014 the applicant complained to the child protection authority that the social worker who had accompanied her and the bailiff on 4 November 2014 had been unfamiliar with the case, had questioned her motives in front of the child and had not known how to facilitate their reunion. It appears that she received no reply to her complaint.

13 . On 8 December 2014, at the bailiff's request and based on the report of the visit of 4 November 2014, the child protection authority applied for mandatory counselling under Article 912 of the Code of Civil Procedure, with a view to re-establishing a relationship between the applicant and the child. On 20 January 2015 the Beiuş District Court allowed the request and ordered that the child should follow a three-month psychological counselling programme.

14 . The objectives of the counselling programme were to assist both parents in establishing positive contact with the child, and to help rebuild the mother-child relationship.

15 . Several meetings were organised between 4 February and 4 May 2015. The psychologist met the parents separately and together and met the child. I.T. refused to allow the applicant to participate in the counselling sessions together with the child. He also asked the applicant to agree to postpone the enforcement of the custody decision for a year if she wanted to see her daughter during counselling. As the applicant did not accede to his request, he refused any contact between the mother and daughter during that period.

16 . On 16 June 2015 the psychologist submitted her report to the court and to the child protection authority. She noted that the child was well-integrated into her father's family, was emotionally attached to her father, stepmother and stepbrother, and was afraid that the applicant would come and take her away during the counselling meetings. She also noted that the father was not facilitating the relationship between the applicant and their child.

17 . At the end of the counselling programme I.T. agreed to allow the applicant to speak with the child on the telephone. The psychologist observed that the counselling had failed to diminish the child's high levels of separation anxiety and ambivalent attitude towards her biological mother and had failed to reach the objectives set at the beginning.

18 . On 21 May and 22 October 2015 and 16 April 2016 the applicant asked the bailiff to continue the enforcement proceedings. There is no indication that he did so. On 22 October 2015 and 25 May 2016 the bailiff sought payment of the costs of the enforcement proceedings from I.T.

19 . On 8 July 2015 the applicant lodged a criminal complaint against I.T. for refusing to comply with a court order and for alleged acts of violence against the child when the applicant had wanted to take her home. On 30 September 2016 the prosecutor decided not to charge I.T. The applicant did not complain about that decision.

B. New custody proceedings

20 . Meanwhile, on 2 June 2015 I.T. had lodged an application with the Beiuş District Court, seeking an order that the child live with him. At the same time he lodged an interim request with the same objective. On 30 June 2015 the District Court dismissed the interim request on the grounds that the child was already living with him. The court noted that the applicant had already suffered harm because she could not take her child home despite the court decision of 17 June 2014 (see paragraph 6 above). I.T. appealed, but on 27 August 2015 the Bihor County Court upheld the previous decision.

21. On 17 February 2016 the Beiuş District Court also dismissed the main action lodged by I.T. concerning the child's residence. The parents, I.T.'s new wife and the child were interviewed by a court-appointed psychologist who was tasked with assessing the family relations between the parties. She concluded that the child needed time to rebuild her relationship with her mother and recommended that a contact schedule be drawn up between them. She also recommended parental counselling. The court considered that there were no serious reasons to prompt a change in the child's legal residence and that it was in the child's interests to remain with her mother.

22 . I.T. appealed, but in a final decision of 29 September 2016 the Bihor County Court upheld the previous decision. The relevant parts read as follows:

"The minor must have a normal relationship with both parents, which presupposes that the current situation, where she is distanced from her mother, is overcome, because otherwise it will be almost impossible for her to re-establish a normal relationship with her mother, and this does not serve the child's best interests.

The court does not deny the importance of a stable environment for the minor, including her home and the people who are part of her daily life; it considers, however, that at the present time preserving continuity does not serve the child's interests to develop a normal relationship with both parents. The parties must understand ... that the minor must be supported in order to adapt to her new environment...

The court is not bound by the wish expressed by the minor to remain with her father, because she is of a young age and because the father has persuaded the minor not to go to her mother's home. ... To hold that the child's opinion is binding without exception would mean that the proceedings, including the hearing of evidence, are useless and that the court's sole role is to take note of the child's preference and decide accordingly."

23 . According to the applicant, on 21 March 2018, the date of her latest communication to the Court, she had still not been reunited with her daughter.

II. RELEVANT DOMESTIC LAW

24. The relevant provisions of the Code of Civil Procedure on the procedure for the enforcement of court orders concerning minors is set out in Niţă v. Romania ([Committee], no. 30305/16, §§ 27-30, 3 July 2018).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

25. Relying on Articles 6 and 8 of the Convention, the applicant complained that her right to respect for family life had been breached because of the inadequate response of the authorities to her family situation and because of the overall length of the enforcement proceedings in respect of the custody decision.

26. The Court, which is master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10and 22768/12, §§ 114 and 126, 20 March 2018), will examine the complaint from the standpoint of Article 8 alone (see, for example and mutatis mutandis , Eberhard and M. v. Slovenia , no. 8673/05and 9733/05, § 111, 1 December 2009).

This provision 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

27 . The Government averred that the applicant had failed to exhaust domestic remedies. In particular, she had not complained about the prosecutor's decision of 30 September 2016 to discontinue the criminal investigation (see paragraph 19 above).

28. The applicant contended that the decisions giving her custody of the child had been final and therefore enforceable, irrespective of the outcome of the criminal investigations against I.T. Moreover, even a criminal conviction would not have automatically led to her being reunited with her daughter, as she had been alienated from her. Therefore, the remedy indicated by the Government would not have been adequate, effective or had any real hope of success.

29 . The Court considers that the objection raised by the Government is very closely linked to the substance of the applicant's complaint, notably to the effectiveness in practice of the means made available to her by the State in order to reunite her with her child. It therefore considers it appropriate to join this objection to the merits.

30. The Court also notes that the application is not manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties' submissions

(a) The applicant

31. The applicant argued that the system put in place by the respondent State to help parents reunite with their children was inefficient. In particular, she pointed out that the enforcement of the custody decision had been entirely dependent on the wish expressed by the child in front of the bailiff on 4 November 2014 (see paragraphs 10 and 11 above). Her child, who had been four years old at the time, had been put in the difficult position of having to choose between her parents. Moreover, the bailiff and the social worker from the child protection authority had failed to prepare the child for the reunion. Throughout that meeting the father and other members of his family had been allowed to be present. The applicant further reiterated that the child protection authority had sent a social worker to the meeting of 4 November 2014 who had been unfamiliar with the case.

32. The applicant also argued that the domestic legislation was not equipped to deal with obstructive parents. She observed that the only means available to her had been to attend the three-month psychological counselling programme (see paragraphs 13 to 17 above). However, the father, who had opposed the enforcement, had refused to take the child to the counselling sessions (see paragraph 15 above). Despite his attitude, no efficient coercive measures had ever been taken against him.

33. The applicant further contended that the enforcement proceedings had been marred by delays caused by the authorities: it took four months before the bailiff managed to organise a meeting between her and her child (see paragraphs 7 and 10 above), and more than a month for the counselling programme to be put in place (see paragraph 13 above) In addition, she pointed out that no action had even been taken after the psychologist report at the end of the mandatory counselling programme (see paragraph 17 above).

34. Lastly, in her submissions to the court of 21 March 2018 the applicant reiterated that although she had asked the bailiff to continue the proceedings, the enforcement had still not been completed (see paragraph 23 above).

(b) The Government

35. The Government argued that the authorities had acted diligently, without delays and within the limits of their powers, and had thus complied with their positive obligations under Article 8 of the Convention. They pointed out that the applicant had not complained about the assistance received from the bailiff and reiterated that the latter could not have forcibly taken the child away from the father. In their view, the person solely responsible for the non-enforcement was I.T.

36. Lastly, the Government observed that the applicant had not asked the bailiff to resume the enforcement, and had remained passive since 2015.

2. The Court's assessment

(a) General principles

37. The Court reiterates that the mutual enjoyment by parent and child of each other's company constitutes a fundamental element of "family life" within the meaning of Article 8 of the Convention, even when the relationship between the parents has broken down (see, among many other authorities, Keegan v. Ireland , 26 May 1994, § 50, Series A no. 290; Eberhard and M. , cited above, § 125; and Monory v. Romania and Hungary , no. 71099/01, § 70, 5 April 2005). Further, even though the primary object of Article 8 is to protect the individual against arbitrary action by public authorities, there are, in addition, positive obligations inherent in effective "respect" for family life (see Keegan , cited above, § 49; Eberhard and M. , cited above, § 126; and M. and M. v. Croatia , no. 10161/13, § 176, ECHR 2015 (extracts)).

38. In relation to the State's obligation to implement positive measures, the Court has held that Article 8 includes for parents a right that steps be taken to reunite them with their children and an obligation on the national authorities to facilitate such reunions (see, among other authorities, Ignaccolo-Zenide v. Romania , no. 31679/96, § 94, ECHR 2000-I; Nuutinen v. Finland , no. 32842/96, § 127, ECHR 2000-VIII; and Eberhard and M. , cited above, § 127). 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 (see M. and M. v. Croatia , cited above, § 177, with further references).

39 . In cases concerning the enforcement of decisions in the sphere of family law, the Court's task is, therefore, subject to the principle of subsidiarity, to determine whether the national authorities have taken all necessary steps to facilitate reunion as can reasonably be demanded in the special circumstances of each case (see Eberhadr and M. , cited above, § 128, and Mihailova v. Bulgaria , no. 35978/02§ 83, 12 January 2006).

40 . The Court has previously considered that ineffective, and in particular delayed, conduct of custody proceedings may give rise to a breach of Article 8 of the Convention (see Eberhard and M. , cited above, § 127). In this context, the adequacy of a measure is to be judged by the swiftness of its implementation, as the passage of time can have irremediable consequences for relations between the child and the parent who do not cohabit (see, among many other authorities, Ignaccolo-Zenide , cited above, § 102). The duration of the proceedings concerning children takes on a particular significance, because there is always a danger that any procedural delay will result in the de facto determination of the issue before the court (see H. v. the United Kingdom , 8 July 1987, §§ 89-90, Series A no. 120, and P.F. v. Poland , no. 2210/12, § 56, 16 September 2014).

41 . The Court reiterates that the fact that the authorities' efforts foundered does not, however, lead automatically to the conclusion that there was a failure to comply with the positive obligations under Article 8 of the Convention (see Mihailova , cited above, § 82). The authorities' duty to take measures to facilitate reunion is not absolute, since the reunion of a parent with children who have lived for some time with the other parent may not be able to take place immediately and may require preparatory measures to be taken (see Nuutinen , cited above, § 128). The nature and extent of such preparation will depend on the circumstances of each case (see, Kosmopoulou v. Greece , no. 60457/00, § 45, 5 February 2004). Moreover, in cases such as the present one, where the child resists contact with one parent, Article 8 of the Convention requires States to try to identify the causes of such resistance and address them accordingly. It is an obligation of means, not of result. The cooperation and understanding of all concerned will always be an important ingredient (see K.B. and Others v. Croatia , no. 36216/13, § 144, 14 March 2017). However, lack of cooperation between separated parents is not a circumstance which can by itself exempt the authorities from their positive obligations under Article 8. It rather imposes on the authorities an obligation to take measures to reconcile the conflicting interests of the parties, keeping in mind the best interests of the child as the primary consideration (see Ribić v. Croatia , no. 27148/12, § 94, 2 April 2015).

42 . Lastly, the Court finds it important to reiterate that while its case-law requires children's views to be taken into account, those views are not necessarily immutable and their objections, which must be given due weight, are not necessarily sufficient to override the parents' interests, especially in having regular contact with their children. The right of a child to express his or her own views should not be interpreted as effectively giving an unconditional veto power to children without any other factors being considered and an examination being carried out to determine their best interests; such interests normally dictate that the child's ties with his or her family must be maintained, except in cases where this would harm his or her health and development (see Raw and Others v. France , no. 10131/11, § 94, 7 March 2013).

(b) Application of those principles to the case

43. In the present case, it is undisputed that, following the court decision of 17 June 2014 giving the applicant custody (see paragraph 6 above), the authorities were under a duty to take measures with a view to reuniting her with her child. It is also undisputed that the measures that were taken did not lead to an effective reunion. The applicant has been unable to live with her daughter since May 2013, when she left her marital home (see paragraph 5 above). The child was still living with her father four years and ten months later, in March 2018, the date of the latest communication with the Court (see paragraph 23 above).

44. The Court reiterates, first of all, that in a case of this kind, the adequacy of a measure is to be judged by the swiftness of its implementation (see paragraph 40 above). The authorities' obligation to act promptly is even more important in cases such as the present one, where the parent with custody requests the return of the children from a person (be that the other parent or a third party) who retains the children without any right and without the custodian's consent (see Amanalachioai v. Romania , no. 4023/04, § 93 in fine , 26 May 2009). In the present case, it has been almost five years since the applicant was last able to exercise her parental rights. In its final decision of 29 September 2016 the Bihor County Court reaffirmed that the child should live with the applicant and that, despite the child's refusal, a reunion with her mother was in her interests (see paragraph 22 above).

45. At this point, the Court considers that the time that the final decision of 17 June 2014 remained unenforced (four years and ten months to the date of the latest communication from the applicant) is in itself problematic, as it allowed for the family ties between the applicant and her daughter to deteriorate, thus rendering the enforcement of the custody measures significantly more difficult.

46. It remains to be established whether the authorities have taken all necessary steps in order to facilitate the execution of the custody decisions (see paragraph 39 above).

47. The Court notes that the bailiff took four months to organise the first and only meeting with the child (see paragraphs 7 and 10 above). During this time, he seems to have taken for granted I.T.'s allegations that the child did not wish to see her mother (see paragraph 7 above), as there is no record of any psychological or other professional assessment of the child or the parents at that time. It is to be noted that, at that time, the child was three years old and had been separated from her mother for more than a year (see paragraph 5 above). In these circumstances, and bearing in mind the lack of any direct assessment of the child by the bailiff, this delay cannot be seen as serving the child's interests.

48. Moreover, although the bailiff was informed by I.T. as early as 5 August 2014 that the child allegedly refused to see her mother, the bailiff waited until after the 4 November 2014 meeting to trigger the proceedings for mandatory counselling (see paragraph 13 above). By the time the mandatory counselling started, the child had been separated from her mother and had no contact with her for one year and eight months (from May 2013 to January 2015). Such a significant lapse of time must have furthered the alienation between the applicant and her daughter thus rendering the counselling more difficult. The Court considers that, because of this delay, the authorities are at least partially responsible for this additional hardship in the enforcement proceedings.

49. The Court further reiterates that the authorities should not rely exclusively on the child's wishes (see paragraph 42 above). However, in the present case, when deciding the bailiff's requests, the domestic courts (see paragraph 8 above) and the prosecutor's office (see paragraph 9 above) absolved I.T. of any responsibility for the non-enforcement as they accepted that the child did not wish to have contact with her mother. At no point did these authorities question the child's capacity to make informed choices or the extent of the influence I.T. exercised on the child with regard to the child's young age and the long period of time she had spent exclusively in his company. There is no information on how these authorities assessed the child's best interests or how they weighed up her and her parents' rights.

50. The Court notes that the bailiff did not pursue the domestic proceedings to their completion (see paragraphs 8 and 9 above). It could be argued that the applicant could also have appealed against the court decision and the prosecutor's decisions not to prosecute (see paragraphs 9 and 19 above). She could also have lodged a complaint against the bailiff concerning the manner in which he had conducted the enforcement proceedings. However, given the weight that the authorities put on the bailiff's finding that the child refused to see her, the applicant's reluctance to use them is reasonable. Moreover, while these measures might have helped put pressure on I.T., they are not the most efficient means available to the applicant to obtain enforcement. In particular, the Court notes that by that time, the Beiuş District Court recognised that psychological counselling was needed in order to reconstruct the mother-daughter relationship and ordered it (see paragraphs 13 and 14 above). On this point, the Court reiterates that in accordance with the domestic law, if the child refuses in absolute terms to leave the non-custodial parent, or shows an aversion to the custodial parent, the bailiff must stop the enforcement during the counselling programme, and resume the enforcement when it has ended (see Article 912 of the Code of Civil Procedure, as interpreted by the Constitutional Court in its decision no. 299 of 12 May 2016, quoted in Niţă v. Romania [Committee], no. 30305/16, §§ 28 and 30 in fine , 3 July 2018).

51. In these circumstances, the applicant's choice to rely on the psychological counselling seems without a doubt to have been the most efficient and expeditious means available to achieve her goal of re-establishing contact with her daughter.

52. In addition, the Court notes that despite the intrinsic urgency of the situation, these proceedings took a relatively long time: seven months for the Oradea District Court (see paragraph 8 above) and more than three months and more than one year and two months respectively for the prosecutor's office (see respectively paragraphs 9 and 19 above).

53. The Court also reiterates that the primary role of the child protection authority is to facilitate contact and negotiate solutions between the parties concerned, with a view to promoting the child's best interests (see Niţă , cited above, § 42). However, it appears from the material available that nothing seems to have been done to prepare the child for the visit of 4 November 2014. Moreover, the Government did not challenge the applicant's contention that at the meeting the representative of the child protection authority substantially remained a passive observer (see paragraph 12 above). This inaction cannot be justified and ran counter to that authority's obligation to assist the applicant in her efforts to re-establish contact with her child. By that time, the child protection authority was aware that the child allegedly refused to see her mother (see paragraph 7 above). The authority thus should have anticipated that preparatory measures needed to be put in place (see paragraph 41 above and Strumia v. Italy , no. 53377/13, § 110 in fine , 23 June 2016). In this context, the mere presence of the social worker without any active involvement aimed at negotiating and facilitating contact can only be regarded as a perfunctory exercise of the authority's duties.

54. The only measure which could qualify as preparatory to the parties' reunion was the mandatory psychological counselling ordered by the court (see paragraph 13 above). The programme, however, failed to reach its objectives (see paragraph 17 above). Despite clear information that I.T. was hindering the effective counselling (see paragraphs 15 and 16 above), nothing was done by the authorities to deter him. No measures were proposed or taken by the authorities after the counselling programme ended. Despite the applicant's insistence, even the bailiff failed to resume the enforcement of the custody decision (see paragraph 18 above).

55. The foregoing considerations are sufficient to enable the Court to conclude, notwithstanding its subsidiary role, that the authorities did not act in a timely manner and did not do what was reasonable in the circumstances to enforce the custody decisions, thus failing to strike a fair balance between the competing interests of the individual and the community. By their attitude, they also rendered ineffective some of the domestic remedies aimed at accompanying the applicant in her efforts to obtain enforcement of the custody decision. In sum, the applicant did not receive effective protection of her right to respect for her family life.

56. Accordingly, the Court dismisses the Government's objection of non-exhaustion of domestic remedies (see paragraphs 27 and 29 above) and finds that there has been a violation of Article 8 of the Convention.

57. The Court emphasises in this connection that this conclusion is without prejudice to any potential subsequent decision of the domestic courts as to the best interests of the child, bearing in mind the time that has elapsed since she started living with her father. Importantly, and for the avoidance of doubt, in view of the fact that the child lost contact with her mother when she was two and has lived with her father without interruption for almost five years, the Court stresses that the present judgment should in no way be interpreted as suggesting that the authorities should take steps to reunite the applicant with her daughter without proper preparatory measures being taken (see paragraph 41 above and, mutatis mutandis , E.S v. Romania and Bulgaria , no. 60281/11, § 82, 19 July 2016).

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

58. 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

59. The applicant claimed 100,000 euros (EUR) in respect of non-pecuniary damage caused by the infringement of Article 8 of the Convention and EUR 5,000 in respect of non-pecuniary damage caused by the alleged infringement of Article 6 of the Convention.

60. The Government argued that the acknowledgement of a violation of the applicant's rights constituted sufficient just satisfaction for any non-pecuniary damage sustained. In any case, they considered that the amount sought by the applicant was excessive in comparison to awards granted by the Court in similar cases.

61. The Court considers that the applicant must have sustained non-pecuniary damage, which cannot be compensated for solely by the finding of a violation. Having regard to the nature of the violation found and making its assessment on an equitable basis, the Court awards the applicant EUR 12,500 in respect of non-pecuniary damage, plus any tax that may be chargeable.

B. Costs and expenses

62. The applicant also claimed EUR 2,313 for the costs and expenses incurred before the domestic courts and for those incurred before the Court, representing lawyer's fees (representation in the domestic proceedings and before the Court), the costs of the enforcement proceedings and other expenses incurred in the various efforts to reunite with her daughter. She sent invoices, which, for the costs incurred during the proceedings before the Court, amounted to 1,620.83 Romanian lei (RON  approximately EUR 670).

63. The Government retorted that all costs incurred in relation to the enforcement of the domestic court decisions could be claimed by the applicant in the enforcement proceedings and pointed out that some of these costs had already been taken into account by the bailiff. They argued that the only costs the applicant could legitimately claim in the present proceedings were those incurred before the Court.

64. Regard being had to the documents in its possession and to its case-law, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 670 for the proceedings before the Court.

C. Default interest

65. The Court considers it appropriate that the default interest rate 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, UNANIMOUSLY,

1. Joins to the merits the Government's objection of non-exhaustion of domestic remedies and rejects it;

 

2. Declares the application admissible;

 

3. Holds that there has been a violation of Article 8 of the Convention;

 

4. Holds

(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 12,500 (twelve thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 670 (six hundred and seventy euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

 

5. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 19 March 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Andrea Tamietti Paulo Pinto de Albuquerque
Deputy Registrar President