European Court of Human Rights

 

 

SECOND SECTION

CASE OF MOGLAN v. THE REPUBLIC OF MOLDOVA

(Application no. 53502/19)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

14 December 2021

 

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

In the case of Moglan v. the Republic of Moldova,

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

          Carlo Ranzoni, President,
          Valeriu Griţco,
          Marko Bošnjak, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having regard to:

the application (no. 53502/19) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Moldovan and Romanian national, Ms Marina Moglan (“the applicant”), on 3 October 2019;

the decision to give notice to the Moldovan Government (“the Government”) of the complaint under Article 8 of the Convention;

the parties’ observations;

Having deliberated in private on 23 November 2021,

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

INTRODUCTION

1.  The case concerns the delay in dealing with the applicant’s request for the return of her children to their habitual place of residence after they were taken abroad by their father.

THE FACTS

2.  The applicant was born in 1978 and lives in Iași.

3.  The Government were represented by their Agent, Mr O. Rotari.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.

5.  On 14 May 2014 the Iași District Court (Romania), confirmed the dissolution of the applicant’s marriage to G.C. According to that judgment both parents shared parental authority over their two children (G.V. and G.M), and their residence was established with their mother, the applicant, in Iași.

6.  On 11 August 2015 the Iași District Court allowed G.C. to take both children on a trip to the Republic of Moldova from 15 to 31 August 2015. However, at the end of that period G.C. did not return the children to the applicant’s home in Iași.

7.  On 24 June 2016 the applicant asked the competent Romanian authority to initiate the return of her children to their habitual place of residence in accordance with the 1980 Hague Convention on the Civil Aspects of International Child Abduction. On 3 August 2016 the Romanian Ministry of Justice asked the Moldovan Ministry of Labour, Social Protection and Family (hereafter “the MLSPF”, which is the Moldovan central authority under the above‑mentioned Hague Convention) to take action in order to ensure the return of the two children to their habitual place of residence in Iași.

8.  On 19 December 2016 the MLSPF lodged a court action against G.C. and the applicant, asking the court to determine what was in the best interest of the children and to decide on the issue of their return to their habitual place of residence.

9.  According to the documents submitted by the Government, the first court hearing was scheduled for 28 December 2016, but the court found that the parties had not been properly summoned for that day and rescheduled the hearing for 2 February 2017. At the hearing of 2 February 2017 the court decided to involve in the proceedings the Child Rights Protection Agency (hereafter “the CRPA”) and the National Centre for the Prevention of Abuse against Children “Amicul” (hereafter “the Amicul centre”) and postponed the proceedings to 16 February 2017. On that date, the Amicul centre’s representative was missing and the hearing was postponed to 6 March 2017. At the same hearing, the applicant asked the court to include in the file a report about the two children made by the CRPA. The latter commented that its previous report was old and needed to be updated. The hearings of 6 and 15 March 2017 were postponed because of the judge’s absence for medical reasons.

10.  On 15 March 2017 the applicant requested that the examination of the case be accelerated. Her request was rejected on 24 March 2017, the judge finding that although the case was in principle to be examined on a priority basis, its examination also depended on the number of cases distributed to the trial judge, whose illness had been an objective impediment to the previous two hearings.

11.  On 14 April 2017 G.C. asked for the court action to be struck out of the list of cases for being lodged by a person not empowered to do so. The applicant and her lawyer requested time to prepare a reply, so the hearing was postponed to 3 May 2017, to continue the next day. On 4 May 2017 the court postponed the hearing because the MLSPF’s representative was absent. The applicant’s representative was mentioned in the minutes of that hearing as absent, then as present and addressing the court. The next hearing of 24 May 2017 was postponed because of the judge’s health. The following hearing took place on 16 June 2017, at which the Rîșcani branch of the CRPA and the Children’s Rights Advocate were involved in the proceedings. The next hearing was scheduled for 7 July 2017. On 7 August 2017 the applicant’s representative asked for the rescheduling of the hearing of 8 August 2017 because of a health problem.

12.  In the meantime, on 4 July 2017 the applicant asked the CRPA to stop G.C.’s actions aimed at alienating the children from their mother. On 12 July 2017 the CRPA informed the applicant that she had the right to complain to various authorities about perceived violations of her rights, including to the courts.

13.  On 18 September 2017 a psychologist with the CRPA wrote an information note in which she analysed the psychological state of the two children and found that they had both expressed the wish to stay with their father in Chișinău, even while making positive remarks about both parents.

14.  In a complaint dated 31 October 2017, G.C. inquired with the court why its decision, taken during the preparatory stage of the proceedings, to hear the parties and then both children, was subsequently changed to hearing only the older child. On 2 November 2017 the trial court asked the Amicul centre to provide a psychologist for 6 November 2017 in order to assist the court in hearing the older of the two children. The Amicul centre replied that it could not accommodate the court’s request at such short notice. On 8 November 2017 the court asked the Amicul centre to provide, before the hearing of 27 November 2017, a psychological report concerning the two children. On 28 December 2017 the court repeated that request. On the same date the applicant asked the court to order the children’s psychological evaluation, notably whether their father’s actions amounted to psychological abuse via their mother’s alienation.

15.  On 25 January 2018 the CRPA sent the trial court an informative note about the children’s state, their environment and relations with their parents.

16.  On 5 February 2018 the Centru District Court decided that the children should be returned to their habitual place of residence in Iași.

17.  On 29 May 2018 the Chișinău Court of Appeal annulled that judgment, finding that the children had in the meantime become accustomed to their new environment and that it was in their best interest to remain with their father in Chișinău.

18.  In circumstances which the parties did not explain, on 4 June 2018 both children returned to their residence in Iași.

19.  On 4 April 2019 the Supreme Court of Justice quashed the lower court judgment and upheld that of 5 February 2018. This judgment was final.

RELEVANT LEGAL FRAMEWORK

20.  Law no. 87, which created a new remedy to address complaints concerning unreasonable length of proceedings and non‑enforcement of final court decisions, entered into force on 1 July 2011. Further details of that law are set out in this Court’s decision in Balan v. Moldova (dec.) (no. 44746/08, 24 January 2012).

THE LAW

I.        ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

21.  The applicant complained of a violation of Article 8 of the Convention, which reads as follows:

“1.  Everyone has the right to respect for his ... family life...

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

A.    Admissibility

1.     Preliminary objection concerning the abusive character of the application

22.  The Government argued that the present application was abusive since the applicant had omitted to inform the Court of the return of her children to her in June 2018, well before lodging her application on 3 October 2019.

23.  The applicant submitted that her application only concerned the Moldovan authorities’ delay in dealing with the return of her children.

24.  The Court reiterates that an application may be rejected as abusive under Article 35 § 3 of the Convention, among other reasons, if it was knowingly based on untrue facts (see Varbanov v. Bulgaria no. 31365/96, §36, ECHR 2000-X; Řehák v. Czech Republic (dec.), no. 67208/01, 18 May 2004; Popov v. Moldova (no. 1) no. 74153/01, § 48, 18 January 2005; Kérétchachvili v. Georgi (dec.), no. 5667/02, 2 May 2006). Incomplete and therefore misleading information may also amount to abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information (Poznanski and Others v. Germany (dec.), no. 25101/05, 3 July 2007).

25.  The Court considers that the information about the children’s return to the applicant on 4 June 2018 was relevant to the present case and should have been included in the facts submitted by the applicant. However, it notes that when lodging her application, the applicant appended a copy of the final judgment of the Supreme Court of Justice providing for the return of the children to her (see paragraph 19 above). It was thus clear from the beginning that the case concerned only the delay in obtaining the return of her children and not any refusal to order such a return. In this context, the children’s return to their residence in Iași on 4 June 2018 shortened the period to be taken into consideration compared to what might otherwise have been assumed but did not fundamentally change the nature of the complaint. By the date when the children returned to their mother, the delay had already amounted to almost two years, in a matter that should have been examined urgently. In such circumstances, the Court finds that, although important, the missing information was not decisive for the question of whether the application was meritorious. Therefore, the Court decides, in the particular circumstances of the present case, not to declare the application inadmissible on this ground.

This objection must therefore be dismissed.

2.     Preliminary objection concerning the failure to exhaust domestic remedies

26.  The Government also argued that the applicant had failed to exhaust available domestic remedies. In particular, the case should be examined as a length of proceedings case under Article 6 of the Convention. The applicant did not claim compensation for the excessive length of the proceedings, which she had the possibility to do under Law no. 87 (see paragraph 20 above).

27.  The applicant submitted that although she had asked the authorities to take action in order to return her children to their habitual place of residence, in the domestic proceedings that followed she was - for an unexplained reason - treated as a defendant, namely a person who could eventually have to pay compensation or execute an obligation. Moreover, her request for the acceleration of the proceedings was rejected, which underlined her slim chances of success.

28.  The Court notes that although the application concerns delays in the domestic proceedings, in essence the applicant complains about the effects on her and her children’s family life resulting from the period of time during which they were separated. Therefore, the remedy referred to does not address the essence of the alleged violation of Article 8, notably the damage caused to her relationship with her children during the period when they were separated and the children were allegedly psychologically abused by their father via their mother’s alienation (see paragraph 40 below). The fact that the applicant did not make any claims for just satisfaction under Article 41 of the Convention only confirms that, for her, monetary compensation (which she could have claimed domestically) was inadequate to remedy the breach of her Article 8 rights.

This objection must thus also be dismissed.

3.     Loss of interest in pursuing the application

29.  The Government finally argued that the applicant had lost interest in pursuing the application, as evidenced by her refusal to discuss the case with the Government’s Agent after communication of the present application.

30.  The applicant submitted that she had not lost interest in the case. She considered that her communication with the Government’s Agent was to take place via the Court and the MLSPF, which had formally started the domestic proceedings.

31.  The Court notes that the applicant responded to its letters and submitted observations. In such circumstances, in spite of the lack of communication with the Government’s Agent, it cannot be said that she has lost interest in pursuing the present application.

Therefore, this objection must also be dismissed.

32.  The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.    Merits

33.  The applicant argued that the domestic authorities had allowed unwarranted delays in the proceedings, even though their nature called for urgent examination. In particular, G.C.’s requests to involve various authorities in the proceedings had been aimed at protracting the proceedings. The lengthy period over which the case had been examined contributed notably to the irreversible psychological damage caused to her and her children.

34.  The Government argued that under the Court’s case-law the automatic application of the Hague Convention was not possible. The courts had to balance properly the competing interests: that of the parent requesting the urgent return of the child and that of the other parent raising objections to such a return. In all cases, the highest interest of the child should prevail. Even if, in the present case, the proceedings lasted for more than the six weeks provided for in the Hague Convention, the courts had to observe the procedural rights of both parents. Both parties asked on several occasions for the involvement of specialists and psychological reports and the applicant herself asked for postponement of the proceedings on several occasions. The courts also had to carry out an in-depth analysis of all the relevant elements concerning the children and their environment in order to balance all competing interests and to ensure that the best interests of the children were observed. This was even more important in the light of the passage of almost an entire year between the date when the children had to be returned to the applicant and the date when the Moldovan authorities were asked to decide on such a return.

35.  The Court refers to its case-law concerning the application of the Hague Convention to cases where a parent refuses to return his/her child to the habitual place of residence (see, for instance, Neulinger and Shuruk v. Switzerland ([GC], no. 41615/07, §§ 131‑40, ECHR 2010) and X v. Latvia ([GC], no. 27853/09, §§ 92-108, ECHR 2013). It also reiterates that ineffective, and in particular delayed, conduct of judicial proceedings may give rise to a breach of positive obligations under Article 8 of the Convention (see Eberhard and M. v. Slovenia, no. 8673/05 and 9733/05, § 127, 1 December 2009, and S.I. v. Slovenia, no. 45082/05, § 69, 13 October 2011), as procedural delay may lead to a de facto determination of the matter at issue (see H. v. the United Kingdom, 8 July 1987, § 89, Series A no. 120). Therefore, in cases concerning a person’s relationship with his or her child there is a duty to exercise exceptional diligence, in view of the risk that the passage of time may result in a de facto determination of the matter. This duty, which is decisive in assessing whether a case has been heard within a reasonable time as required by Article 6 § 1 of the Convention, also forms part of the procedural requirements implicit in Article 8 (see, for example, Süß v. Germany, no. 40324/98, § 100, 10 November 2005, and Strömblad v. Sweden, no. 3684/07, § 80, 5 April 2012).

36.  In the present case, the Court notes that although the Moldovan central authority under the Hague Convention was asked to facilitate the children’s return on 3 August 2016, it lodged a court action in that respect only on 19 December 2016. The parties did not inform the Court of any action taken in the meantime. It follows that nothing was done in respect of the applicant’s request for more than 18 weeks, largely exceeding the target period of six weeks for adopting a decision set out in Article 11 of the Hague Convention.

37.  After the lodging of the court action, the first-instance court swiftly called the first hearing in less than two weeks. However, the Court cannot but notice that the domestic court did not ensure the proper summoning of the parties (see paragraph 9 above), which led to a delay of over a month.

38.  It is also noted that the first-instance court neglected to hear at least the older of the two children until 2 November 2017, almost a year after the start of the proceedings (see paragraph 14 above), despite apparently deciding from the very start on the need to hear both children. When it did decide to hear the older child, it failed to foresee the need for assistance from a psychologist, requesting such assistance only at the last minute, for which reason the hearing could not be held (see paragraph 14 above), leading to another delay in the proceedings. While it is for the courts to organise their own activity, the first-instance court in the present case apparently repeatedly allowed procedural mistakes which unnecessarily delayed deciding on the return of the children to their habitual place of residence.

39.  It is apparent that other authorities also contributed to delays in the proceedings, such as when the court had to repeat its request for a psychological evaluation of the children after it had apparently not received this on time (see paragraph 14 above).

40.  The Court observes that on two occasions the applicant asked the court to order her children’s psychological evaluation with a view to determining and eventually stopping abuse by their father in the form of alienation of their mother (see paragraphs 12 and 14 above). This underlined the urgency of the situation and that the issue under consideration by the court might have been resolved by the simple passage of time and by influence on the children from their father. Together with a formal request for accelerating the proceedings (see paragraph 10 above), these elements should have reminded the court of its obligation of exceptional diligence in such matters.

41.  It is true that the applicant’s representative once asked for postponement of a hearing owing to health reasons (see paragraph 11 above) and that the parties asked for various experts and child rights protection authorities to intervene in the proceedings. However, none of these events can be considered as having contributed in a decisive manner to the overall length of the proceedings.

42.  It is also apparent that at no time can the courts be said to have allowed lengthy periods of inactivity. However, a number of the regular hearings that took place at least once a month, and sometimes twice a month, apparently resulted in postponements, while such a very important procedural action as hearing the children was given no attention for almost a year. Likewise, obtaining the evaluation of the children and their environment was left until almost a year after the proceedings began (see paragraphs 13 and 15 above).

43.  In the light of the above, while taking into account the domestic courts’ need to balance properly the competing rights and determine what was in the best interest of the children, the Court considers that the Moldovan authorities have not fully satisfied their positive obligation of showing exceptional diligence in such matters, by allowing the proceedings to last for almost two years before the children were returned to their mother (see paragraph 35 above).

44.  There has accordingly been a violation of Article 8 of the Convention.

II.     APPLICATION OF ARTICLE 41 OF THE CONVENTION

45.  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.”

46.  The applicant did not make any claims. Accordingly, the Court will not make any award.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the application admissible;

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

Done in English, and notified in writing on 14 December 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

           {signature_p_2}

             Hasan Bakırcı                                                     Carlo Ranzoni
          Deputy Registrar                                                      President