Applications lodged by the parent whose child had been abducted by the other parent
II. RELEVANT DOMESTIC LAW AND PRACTICE A. Constitution 76. The relevant provisions of the 1991 Constitution provide: Article 11(2) “Treaties lawfully ratified by Parliament shall form an integral part of the domestic legal order.” Article 20 “(1) The constitutional provisions on citizens' rights and liberties shall be interpreted and applied in accordance with the Universal Declaration of Human Rights and with the covenants and other treaties to which Romania is a party. (2) In the event of conflict between the covenants and treaties on fundamental human rights to which Romania is a party and domestic laws, the international instruments shall prevail.” B. Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction 77. The relevant provisions of the Hague Convention read as follows: Article 7 “Central Authorities shall cooperate with each other and promote cooperation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention. In particular, either directly or through any intermediary, they shall take all appropriate measures: (a) To discover the whereabouts of a child who has been wrongfully removed or retained; (b) To prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures; (c) To secure the voluntary return of the child or to bring about an amicable resolution of the issues; (d) To exchange, where desirable, information relating to the social background of the child; (e) To provide information of a general character as to the law of their State in connection with the application of the Convention; (f) To initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access; (g) Where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers; (h) To provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child; ( i ) To keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.” Article 11 “The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children. If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. ...” C. Family Code 78. Article 108 of the Family Code provides: “The supervisory authority [ autoritatea tutelară ] must continuously and effectively supervise the manner in which the parents discharge their obligations concerning the person and property of the child. The delegates of the supervisory authority shall be entitled to visit children in their homes and to inform themselves by all available means about the manner in which the persons in charge of them look after them, about their health and physical development, their education ...; if need be, they shall give the necessary instructions.” D. Criminal Code 79. Article 307 of the Criminal Code provides: “It shall be an offence punishable by one to three months' imprisonment or a fine for one of the parents of an under-age child to detain it without the permission of the other parent ... who lawfully has responsibility for the child. The same penalty shall be incurred by a person to whom parental responsibility has been given by a judicial decision who repeatedly prevents one of the parents from having personal relations with an under-age child on the terms agreed by the parties or laid down by the appropriate body. Criminal proceedings may only be instituted if a criminal complaint has first been lodged by the victim. No criminal liability shall be incurred where there has been a reconciliation between the parties.” E. Code of Criminal Procedure 80. The relevant provisions of the Code of Criminal Procedure read as follows: Article 279 “As regards the offences in respect of which the law requires a criminal complaint to be lodged beforehand, proceedings may only be instituted after a complaint by the victim. The complaint shall be lodged: ... (b) with the body in charge of criminal investigations or with the public prosecutor, in respect of offences other than those referred to in sub-paragraph (a). ...” Article 284 “Where the law requires a criminal complaint to be lodged beforehand, that complaint must be lodged within two months from the date on which the victim discovered the identity of the person who committed the offence...” Article 285 “Where a preliminary criminal complaint is improperly lodged with the public prosecutor's office or the court, it shall be forwarded to the appropriate body. In that event, it shall be regarded as valid if it was lodged with the wrong body within the time allowed by law.” F. Code of Civil Procedure 81. The relevant provisions of the Code of Civil Procedure read as follows: Article 67 “The parties may exercise their procedural rights in person or through a representative. A representative with general authority to act may only represent the person for whom he acts before a court if he has been expressly given the right to do so. If the person who has given the authority to act has no permanent or temporary home in Romania ..., he shall be presumed to have also given authority to represent him in the courts.” Article 87 “... 8. Unless otherwise provided in a treaty, international convention or special law, persons who are abroad and whose home address abroad is known shall be summoned to appear by registered mail... In all cases in which those who are abroad have a known representative in Romania, the latter shall be summoned...” Article 107 “Whenever the presiding judge finds that an absent party has not been lawfully summoned, he must adjourn the case, failing which the proceedings will be null and void.” G. Administration of Justice (Amendment) Act (Law no. 142 of 24 July 1997) 82. The relevant provisions of Law no. 142 of 24 July 1997 amending the Administration of Justice Act (Law no. 92/1992) read as follows: Section 30 “The interests of the State shall be represented by State Counsel organised in departments at each court, under the authority of the Minister of Justice. The work of State Counsel shall be organised in accordance with the principles of the rule of law, impartiality and hierarchical supervision. ...” Section 31( i ) “State Counsel's Office shall have the following duties: ... – defending the rights and interests of minors and persons deprived of legal capacity.” Section 38 “The Minister of Justice shall supervise all State Counsel through State Counsel inspectors attached to the Supreme Court of Justice and the courts of appeal or through other, delegated State Counsel. Where he considers it necessary, the Minister of Justice, either of his own motion or at the instance of the National Judiciary Council, effects his supervision through inspectors-general or State Counsel on secondment... ... The Minister of Justice may ask Principal State Counsel at the Supreme Court of Justice for information about the work of State Counsel's offices and may give advice on measures to be taken to combat crime. The Minister of Justice is empowered to give State Counsel written instructions, either direct or through Principal State Counsel, to institute, in accordance with the law, criminal proceedings for offences that have come to his knowledge; he may also have actions and proceedings brought in the courts that are necessary for the protection of the public interest. ...” H. Practice in respect of service of summonses 83. In decision no. 87 delivered in 1993 the Supreme Court of Justice again confirmed its settled case-law on summoning persons resident abroad, which requires service to be effected at the foreign home but also at the Romanian home of any representative. Legal writers, for their part, highlight the compulsory requirement of serving a summons on the person concerned at his foreign home, even where he has a representative in Romania ( Viorel Mihai Ciobanu, Tratat Teoretic şi Practic de Procedură Civilă (“Theoretical and Practical Treatise on Civil Procedure”), vol. II, p. 94, Bucharest, 1997). 84. The courts have consistently held that the legal provisions governing summonses are mandatory as they are designed to ensure compliance with the adversarial principle and due process. If these provisions are not complied with, the decision will be null and void and it will be quashed and the case remitted to the tribunal of fact (Bucharest County Court, Third Civil Division, decision no. 226/1990, Culegere de Jurisprudenţă Civilă a Tribunalului Judeţean Bucureşti (“Reports of Criminal Cases in the Bucharest County Court”), no. 155, p. 123, Bucharest, 1992; Supreme Court of Justice, Civil Division, decision no. 779 of 6 April 1993, Buletinul de Jurisprudenţă al Curţii Supreme de Justiţie (“Supreme Court of Justice Case-Law Bulletin”) for 1993, p. 126, Bucharest, 1994). PROCEEDINGS BEFORE THE COMMISSION 85. Mrs Ignaccolo-Zenide applied to the Commission on 22 January 1996. She alleged that, contrary to Article 8 of the Convention, which guarantees the right to respect for family life, the Romanian authorities had not taken measures to ensure execution of the court decisions whereby custody of the children was split between herself and her former husband and they were to live with her. 86. The Commission (First Chamber) declared the application (no. 31679/96) admissible on 2 July 1997. In its report of 9 September 1998 (former Article 31 of the Convention) [1], it expressed the opinion that there had been a violation of Article 8 (unanimously). FINAL SUBMISSIONS TO THE COURT 87. In their memorial the Government requested the Court to find that they had discharged the positive obligations on them under Article 8 of the Convention and that there had consequently been no violation of that provision. 88. The applicant asked the Court to hold that there had been a violation of Article 8 of the Convention and to award her just satisfaction under Article 41. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 89. The applicant alleged that the Romanian authorities had not taken sufficient steps to ensure rapid execution of the court decisions and facilitate the return of her daughters to her. The authorities had thus breached Article 8 of the Convention, which provides: “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.” 90. The applicant complained, in particular, of the half-hearted attempts made to execute the order of 14 December 1994, which she described as “pretences”, and pointed out that nothing had been done to find her daughters, who had been hidden by their father each time before the bailiff arrived. As to the meeting arranged by the authorities on 29 January 1997, she considered that in view of the circumstances in which it had taken place, it was just another pretence. She also criticised the Romanian authorities for their total inactivity between December 1995 and January 1997. 91. The Government maintained that the authorities in question had taken adequate and effective steps to have the order of 14 December 1994 executed, for example by arranging for the bailiff to be assisted by police officers and by summoning the children's father to the Ministry of Justice. They pointed out that the failure to execute the decision was due firstly to non-compliance by the father, for whose behaviour the Government could not be held responsible, and secondly to the children's refusal to go and live with the applicant, again a matter for which the Government could not be blamed. 92. In the Commission's view, the national authorities had neglected to make the efforts that could normally be expected of them to ensure that the applicant's rights were respected, thereby infringing her right to respect for her family life as guaranteed by Article 8 of the Convention. 93. The Court notes, firstly, that it was common ground that the tie between the applicant and her children was one of family life for the purposes of that provision. 94. That being so, it must be determined whether there has been a failure to respect the applicant's family life. The Court reiterates that the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities. There are in addition positive obligations inherent in an effective “respect” for family life. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see the Keegan v. Ireland judgment of 26 May 1994, Series A no. 290, p. 19, § 49). As to the State's obligation to take positive measures, the Court has repeatedly held that Article 8 includes a parent's right to the taking of measures with a view to his or her being reunited with his or her child and an obligation on the national authorities to take such action (see, for example, the following judgments : Eriksson v. Sweden, 22 June 1989, Series A no. 156, pp. 26-27, § 71; Margareta and Roger Andersson v. Sweden, 25 February 1992, Series A no. 226-A, p. 30, § 91; Olsson v. Sweden (no. 2), 27 November 1992, Series A no. 250, pp. 35-36, § 90; and Hokkanen v. Finland, 23 September 1994, Series A no. 299-A, p. 20, § 55). However, the national authorities' obligation 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. The nature and extent of such preparation will depend on the circumstances of each case, but the understanding and cooperation of all concerned are always an important ingredient. Whilst national authorities must do their utmost to facilitate such cooperation, any obligation to apply coercion in this area must be limited since the interests as well as the rights and freedoms of all concerned must be taken into account, and more particularly the best interests of the child and his or her rights under Article 8 of the Convention. Where contacts with the parent might appear to threaten those interests or interfere with those rights, it is for the national authorities to strike a fair balance between them (see the Hokkanen judgment cited above, p. 22, § 58). 95. Lastly, the Court considers that the positive obligations that Article 8 of the Convention lays on the Contracting States in the matter of reuniting a parent with his or her children must be interpreted in the light of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”). This is all the more so in the instant case as the respondent State is also a party to that instrument, Article 7 of which contains a list of measures to be taken by States to secure the prompt return of children. 96. What is decisive in the present case is therefore whether the national authorities did take all steps to facilitate execution of the order of 14 December 1994 that could reasonably be demanded (ibid.). A. Period to be taken into consideration 97. The Government maintained that their obligation to take steps to facilitate the reunion of the applicant and her children had arisen out of the order made on an urgent application by the Bucharest Court of First Instance on 14 December 1994 and had come to an end with the final decision of 28 May 1998 whereby the Bucharest Court of Appeal gave parental responsibility to D.Z. 98. The applicant disputed the Government's submission and argued that the decision of 28 May 1998 had never been brought to her knowledge and that she was unaware of its content. She also denied having appointed a representative to represent her in the proceedings that led to the aforementioned decision and submitted that as she had not been a party to the proceedings, the decision in question had been given in breach of the adversarial principle and could not be relied on against her. Lastly, she disputed that the Romanian courts were competent to take a decision on the merits in respect of parental responsibility and argued that under Article 16 of the Hague Convention, the French courts had exclusive jurisdiction in the matter. In that connection, she pointed out that D.Z. had brought an action in the Romanian courts to vary the arrangements for exercising parental responsibility although an identical action was already pending in the French courts, likewise on his initiative. 99. The Court must therefore determine whether the authorities' obligation to take steps to facilitate the execution of the order of 14 December 1994 ceased after the judgment of 28 May 1998 giving parental responsibility to D.Z. The Court points out that in its judgment of 24 February 1995 in the McMichael v. the United Kingdom case (Series A no. 307-B, p. 55, § 87) it held that, although Article 8 contained no explicit procedural requirements, “the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8: '[W]hat ... has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as “necessary” within the meaning of Article 8.' (see the ... W. v. the United Kingdom judgment [of 8 July 1987, Series A no. 121-A], pp. 28 and 29, §§ 62 and 64)”. The Court notes, firstly, that neither the applicant nor any representative of hers was present at the delivery of the Bucharest Court of Appeal's judgment of 28 May 1998, nor was that judgment served on the applicant. Not until 13 September 1999, when the Government submitted it to the Court, was the applicant able to study the judgment in question. Secondly, the applicant was not present at any of the hearings held during the course of the proceedings which led to the decision in issue. It appears from the documents produced by the Government that, contrary to Article 87 § 8 of the Romanian Code of Civil Procedure, no summons was served on the applicant at her home in France, although her address was known. As regards the notification served on Ştefan Constantin, the Court notes that it was not a substitute for the notification to the applicant required by Article 87 § 8 in fine of the Code of Civil Procedure and the settled case-law of the domestic courts (see paragraph 83 above). 100. In the light of those circumstances, the Court considers that the proceedings that led to the Bucharest Court of Appeal's decision did not satisfy the procedural requirements of Article 8 of the Convention. Consequently, it cannot consider that the aforementioned decision put an end to the Government's positive obligations under Article 8. B. Enforcement of the applicant's right to parental responsibility and to the return of the children 101. The Court must therefore determine whether the national authorities took the necessary adequate steps to facilitate the execution of the order of 14 December 1994. 102. In a case of this kind the adequacy of a measure is to be judged by the swiftness of its implementation. Proceedings relating to the granting of parental responsibility, including execution of the decision delivered at the end of them, require urgent handling as the passage of time can have irremediable consequences for relations between the children and the parent who does not live with them. In the instant case this was all the more so as the applicant had brought an urgent application in the courts. The essence of such an application is to protect the individual against any damage that may result merely from the lapse of time. The Court notes that Article 11 of the Hague Convention requires the judicial or administrative authorities concerned to act expeditiously in proceedings for the return of children and any inaction lasting more than six weeks may give rise to a request for a statement of reasons for the delay. 103. In the instant case bailiffs went to D.Z.'s home on four occasions between December 1994 and December 1995. While the initial attempts at execution took place immediately after the order of 14 December 1994, on 22 and 27 December 1994, the same cannot be said of the subsequent attempts: the third visit from the bailiffs did not take place until four months later, on 10 May 1995, and the last visit was on 4 December 1995. The Court notes that no satisfactory explanation was put forward to justify those delays. Similarly, it has difficulty in discerning the reasons why the Bucharest County Court decided to stay execution of the order between 30 June and 1 September 1995. 104. Furthermore, the Court notes that the Romanian authorities were totally inactive for more than a year, from December 1995 to 29 January 1997, when the only meeting between the applicant and her children took place. No explanation for this was provided by the Government. 105. For the rest, it observes that no other measure was taken by the authorities to create the necessary conditions for executing the order in question, whether coercive measures against D.Z. or steps to prepare for the return of the children. 106. Although coercive measures against children are not desirable in this sensitive area, the use of sanctions must not be ruled out in the event of unlawful behaviour by the parent with whom the children live. 107. The Government alleged that such measures could only have been taken at the instance of the applicant, but she had not made any application to that end. In particular, she could have brought an action in a civil court, under Article 1075 of the Civil Code, for a fine to be imposed for every day's delay in the execution of the order of 14 December 1994, or she could have lodged a criminal complaint with the appropriate bodies for failure to comply with the parental-responsibility measures. 108. The Court is not required to examine whether the domestic legal order allowed of effective sanctions against D.Z. It is for each Contracting State to equip itself with adequate and effective means to ensure compliance with its positive obligations under Article 8 of the Convention. The Court's sole task is to consider whether in the instant case the measures taken by the Romanian authorities were adequate and effective. 109. It notes in this connection that D.Z.'s failure to go to the Ministry of Justice on 11 or 15 May 1995 as requested did not have any consequences for him. Similarly, the Romanian authorities imposed no penalty on him after his refusal to present the children to the bailiffs. Furthermore, they took no initiative to try to ascertain the children's whereabouts. 110. As to the alleged failure to lodge a criminal complaint, which was necessary to trigger proceedings against D.Z., the Court notes that in a letter of 23 December 1994 the applicant indicated to the Minister of Justice that she wished to lodge a criminal complaint against D.Z. and, having set out the grounds for the complaint, asked him to do what was necessary. No action was taken on that letter, however. The Court observes that under sections 30 and 38 of the Administration of Justice (Amendment) Act, State Counsel's offices are under the authority of the Minister of Justice, who has the power to give instructions to State Counsel. That being so, it regards the Government's argument that the applicant did not lodge a criminal complaint with the appropriate body as being invalid. 111. Inasmuch as the Government criticised the applicant for not having applied for an order imposing a daily fine, the Court considers that such an action cannot be regarded as effective, since it is an indirect and exceptional method of execution. Furthermore, the applicant's omission could not have absolved the authorities from their obligations in the matter of execution, since it is they who exercise public authority. 112. Nor was any preparatory contact between the social services, the applicant and the children arranged by the authorities, who also failed to seek the assistance of psychologists or child psychiatrists (see, mutatis mutandis, the Olsson (no. 2) judgment cited above, pp. 35-36, §§ 89-91). The social services, for instance, despite having sufficient relevant powers under Article 108 of the Family Code, only met the children in connection with the proceedings for transfer of parental responsibility (see paragraphs 38 and 44 above) and did no more than make purely descriptive inquiry reports. Apart from the one on 29 January 1997, no meeting between the applicant and her children was arranged by the authorities, although the applicant had travelled to Romania on eight occasions in the hope of seeing them. As to the meeting on 29 January 1997, which, the Court stresses, took place one year after the present application was lodged with the Commission and two years after the interim order of 14 December 1994, it was not, in the Court's view, arranged in circumstances such as to encourage a positive development of the relations between the applicant and her children. It took place at the children's school, where their father was a teacher, in the presence of a large group of people consisting of teachers, civil servants, diplomats, policemen, the applicant and her lawyer (see paragraph 70 above). No social workers or psychologists had been involved in the preparation of the meeting. The interview lasted only a few minutes and came to an end when the children, who were clearly not prepared in any way, made as if to flee (see paragraphs 71-72 above). On 31 January 1997, immediately after the failure of that one and only meeting, the Romanian Ministry of Justice, acting as Central Authority, ordered that the children should not be returned, on the ground that they were refusing to go and live with their mother (see paragraph 73 above). Since that date no further attempt has been made to bring the applicant and her children together. 113. The Court notes, lastly, that the authorities did not take the measures to secure the return of the children to the applicant that are set out in Article 7 of the Hague Convention. Having regard to the foregoing, and notwithstanding the respondent State's margin of appreciation in the matter, the Court concludes that the Romanian authorities failed to make adequate and effective efforts to enforce the applicant's right to the return of her children and thereby breached her right to respect for her family life, as guaranteed by Article 8. There has consequently been a violation of Article 8. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 114. 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. Non-pecuniary damage 115. Mrs Ignaccolo-Zenide sought 200,000 French francs (FRF) in compensation for the non-pecuniary damage due to the anxiety and distress she had experienced on account of the failure to enforce her parental rights. 116. The Government did not express a view. 117. The Court considers that the applicant must indeed have sustained non-pecuniary damage. Having regard to the circumstances of the case and making its assessment on an equitable basis as required by Article 41, it awards FRF 100,000 under this head. B. Costs and expenses 118. The applicant also claimed reimbursement of the sum of FRF 86,000, which she broke down as follows: (a) FRF 46,000 for costs and expenses relating to the domestic proceedings, comprising FRF 6,000 for her lawyer's fees in Romania and FRF 40,000 for the travel and subsistence expenses she had to incur for her eight journeys to Romania; (b) FRF 40,000 for fees payable to the lawyer who had represented her at Strasbourg, in accordance with a fee agreement concluded on 15 July 1998. 119. The applicant requested the Court to add to that sum “any value-added tax”. 120. The Government made no submissions. 121. The Court considers that the expenses relating to the steps taken in Romania and at Strasbourg to prevent or redress the situation it has held to be contrary to Article 8 of the Convention were incurred necessarily; they must accordingly be reimbursed in so far as they do not exceed a reasonable level (see, for example, the Olsson v. Sweden (no. 1) judgment of 24 March 1988, Series A no. 130, p. 43, § 104). The Court awards the applicant for costs and expenses the sum of FRF 86,000, together with any value-added tax that may be chargeable. C. Default interest 122. According to the information available to the Court, the statutory rate of interest applicable in France at the date of adoption of the present judgment is 3.47% per annum.
The European Court of Human Rights held that there had been a violation of Article 8 of the European Convention on Human Rights, finding that the Romanian authorities had failed to make adequate and effective efforts to enforce the applicant’s right to the return of her children and had thereby breached her right to respect for her family life. The Court observed in particular that the authorities had not taken the measures to secure the return of the children to the applicant that are set out in Article 7 of the Hague Convention of 25 October 1980.