Applications lodged by the parent whose child had been abducted by the other parent
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND DOCUMETS 50. The relevant provisions of Law no. 369/2004 on the enforcement of the Hague Convention, in so far as relevant, read as follows: ... Article 6 The proceedings under Article 3 of the Convention seeking the return of the child living in Romania shall be examined urgently. ... Article 9 ... The hearing of the child who is ten years old is mandatory. The child who is not ten years old may be heard by the court if it considers that it is necessary. A psychologist attached to the Bucharest social assistance and child protection agencies shall attend the hearing of a child and shall produce a psychological report if requested by the court. ... Article 12 The judgment shall be reasoned within ten days from the date it was delivered on. The judgment is subject to appeal on points of law before the Bucharest Court of Appeal within ten days from the date it was communicated to the parties. ” 51. The relevant provisions of the Hague Convention, which entered into force in respect of Romania on 30 September 1992, read, in so far as relevant, as follows. “The States signatory to the present Convention, Firmly convinced that the interests of children are of paramount importance in matters relating to their custody, Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access, Have resolved to conclude a Convention to this effect, and have agreed upon the following provisions - ... Article 1 The objects of the present Convention are - (a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and (b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States. ... Article 3 The removal or the retention of a child is to be considered wrongful where - (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State. Article 4 The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years. Article 5 For the purposes of this Convention - (a) “rights of custody” shall include rights relating to the care of the person of the child and, in particular, the right to determine the child ’ s place of residence; (b) “rights of access” shall include the right to take a child for a limited period of time to a place other than the child ’ s habitual residence. ... Article 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. Article 12 Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child. Article 13 Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that - (a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or (b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child ’ s habitual residence. Article 14 In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognised or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable. ... Article 16 After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice. Article 17 The sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention, but the judicial or administrative authorities of the requested State may take account of the reasons for that decision in applying this Convention. ... Article 19 A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue. Article 20 The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms. ...” 52. The Explanatory Report on the 1980 Hague Child Abduction Convention, prepared by Elisa Pérez-Vera and published by The Hague Conference on Private International Law (HCCH) in 1982, seeks to throw into relief the principles which form the basis of the 1980 Convention and to supply to those who must apply the Convention a detailed commentary on its provisions. It appears from this report that, in order to discourage the possibility for the abducting parent to have his or her action recognised as lawful in the State to which the child has been taken, the Convention enshrines, in addition to its preventive aspect, the restoration of the status quo, by an order for immediate return of the child, which would make it possible to restore the situation that had been unilaterally and wrongfully changed. Compliance with custody rights is almost entirely absent from the scope of this Convention, as this matter is to be discussed before the relevant courts in the State of the child ’ s habitual residence prior to removal. The philosophy of the Hague Convention is to fight against the multiplication of international abductions, based always on a wish to protect children by acting as interpreter of their real interests. Accordingly, the objective of prevention and immediate return corresponds to a specific conception of “the child ’ s best interests”. However, as the child ’ s removal may be justified for objective reasons which have to do either with his or her person, or with the environment with which he or she is most closely connected, the Convention allows for certain exceptions to the general obligations on the States to ensure an immediate return (§ 25). Since the return of the child is the basic principle of the Convention, the exceptions to the general duty to secure it form an important element in understanding the exact extent of this duty, and it is possible to distinguish exceptions which derive their justification from three different principles (§ 27). Firstly, the authorities of the requested State are not bound to order the return of the child if the person requesting the return was not actually exercising custody rights or where his or her behaviour shows acceptance of the new situation (§ 28). Secondly, paragraphs 1b and 2 of Article 13 contain exceptions which clearly derive from a consideration of the interests of the child, to which the Convention gives a definite content. Thus, the interest of the child in not being removed from his or her habitual residence without sufficient guarantees of stability in the new environment gives way before the primary interest of any person in not being exposed to physical or psychological danger or being placed in an intolerable situation (§ 29). Lastly, there is no obligation to return a child when, in terms of Article 20, his or her return “would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms” (§ 31). The explanatory report, which sets out those exceptions, also emphasises the margin of appreciation inherent in the judicial function. 53. In 2003 the HCCH published Part II of the “Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction”. Although primarily intended for the new Contracting States and without binding effect, especially in respect of the judicial authorities, this document seeks to facilitate the Convention ’ s implementation by proposing numerous recommendations and clarifications. The Guide repeatedly emphasises the importance of the Explanatory Report to the 1980 Convention, known as the Pérez-Vera Report, in helping to interpret coherently and understand the 1980 Convention (see, for example, points 3.3.2 “Implications of the transformation approach” and 8.1 “Explanatory Report on the Convention: the Pérez-Vera Report”). In particular, it emphasises that the judicial and administrative authorities are under an obligation, inter alia, to process return applications expeditiously, including on appeal (point 1.5 “Expeditious procedures”). Expeditious procedures should be viewed as procedures which are both fast and efficient: prompt decision-making under the Convention serves the best interests of children (point 6.4 “Case management”). 54. 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, in so far as relevant 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. [...]” Article 11 “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 [ ... ]” THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 55. The applicant complained, under Articles 6, 8, 14, 17 and 18 of the Convention, Article 1 of Protocol No. 12 and Article 5 of Protocol No. 7, that the Romanian courts had misinterpreted the provisions of the Hague Convention and relied exclusively on the opinion of his children to deny him their return to the U.S., and had failed to provide sufficient reasons for ignoring the injunctions delivered by the U.S. courts and the documents submitted by the U.S. authorities. He also complained that the courts had failed to expedite the proceedings, which had prevented him from exercising his parental rights as the children had remained under their mother ’ s control. He had therefore incurred much higher legal costs than the children ’ s mother. Also by unlawfully transferring the de facto jurisdiction on custody matters to the courts in the State of refuge, the Romanian courts had discriminated against him and placed him at a substantial disadvantage vis-à-vis his wife. 56. The Court reiterates that since it is master of the characterisation to be given in law to the facts of the case, it does not consider itself bound by the characterisation given by the applicant (see Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998-I ). In this context, it notes that Article 8 serves the wider purpose of ensuring proper respect for, inter alia, family life. Also, it observes that the complaint raised by the applicant under other Articles of the Convention is closely linked to his complaint under Article 8. Therefore, it considers that the applicant ’ s complaint may be examined only under 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 57. The Court notes that the complaint 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 58. The applicant submitted that at the time of the Hague Convention proceedings he had had joint custody of his children with his wife. However, the Romanian authorities failed to ensure the speedy return of his children to the U.S. in breach of his rights guaranteed by the European Convention on Human Rights (“the Convention”), even though they had acknowledged the unlawfulness of his children ’ s retention in Romania. 59. The applicant further contended that the relationship he enjoyed with his children belonged to the sphere of family life protected by Article 8 of the Convention. In addition, he contested the Government ’ s argument that the interference with his family life had been lawful under Article 13 § 2 of the Hague Convention. Moreover, by refusing to return his children to the U.S., the Romanian courts had forced him to become a party to divorce ‑ and ‑ custody proceedings in two different countries and had ignored the proceedings pending before the American courts. Furthermore, he had been unable to exercise his parental rights because of the geographical distance. 60. The applicant also submitted that the Hague Convention proceedings had been excessively lengthy, had been plagued by errors and amounted to a failure of the Romanian authorities to take any measures, including extra ‑ judicial ones, to help reunite him with his children. In addition, the domestic courts had refused to order the return of his children by relying exclusively on their opinion, even though the children did not have the required maturity to make such a decision. Moreover, the courts had negated the effect of the Hague Convention by misinterpreting its provisions and failing to strike a fair balance between the competing interests of the parties. 61. The Government submitted that the decision rendered by the domestic courts did not constitute an interference with the applicant ’ s right to respect for family life. In any event, even if the Hague Convention proceedings did amount to an interference with the applicant ’ s family life, that interference had a legal basis, namely Article 13 § 2 of the Hague Convention. It had also served the legitimate aim of protecting the children ’ s best interests. 62. The Government stressed that the domestic non-judicial bodies, in particular the Romanian Ministry of Justice, had represented the applicant actively and appropriately before the domestic authorities. The applicant had been involved in the decision - making process, had been represented throughout the proceedings by a legal representative of his choosing, had been informed about all the relevant procedural steps and had been given the opportunity to submit oral and written observations. In addition, the domestic courts had a wide margin of appreciation in respect of the factual circumstances of the case and were better placed to decide them. The courts relied on all the evidence adduced in the case, including witnesses ’ testimonies, a social inquiry report produced by the relevant authorities in respect of the children ’ s living conditions and the children ’ s statement. The wording of the domestic judgments clearly showed that the judges had had the children ’ s best interests at heart, as well as the need to ensure their psychological development, and that they had struck a fair balance between the parties ’ conflicting interests. 63. The Government also submitted that the Hague Convention proceedings had unfolded without unreasonable delays. The domestic courts had administered an extensive amount of evidence without periods of inactivity and although the case file had been remitted for retrial once, the judgments delivered by the courts had been promptly communicated to the parties. 2. The Court ’ s assessment 64. The Court reiterates that the mutual enjoyment by parents and children of each other ’ s company constitutes a fundamental element of family life and is protected under Article 8 of the Convention (see Monory v. Romania and Hungary, no. 71099/01, § 70, 5 April 2005, and Iosub Caras v. Romania, no. 7198/04, §§ 28-29, 27 July 2006). 65. In the sensitive area of family relations, the State is not only bound to refrain from taking measures that would hinder the effective enjoyment of family life, but, depending on the circumstances of each case, should take positive action in order to ensure the effective exercise of such rights. In this area the decisive issue is whether a fair balance between the competing interests at stake – those of the child, of the two parents, and of public order – was struck, within the margin of appreciation afforded to States in such matters (see Maumousseau and Washington v. France, no. 39388/05, § 62, 6 December 2007 ), bearing in mind, however, that the child ’ s best interests must be the primary consideration (see Gnahoré v. France, no. 40031/98, § 59, ECHR 2000 ‑ IX) and that the objectives of prevention and immediate return correspond to a specific conception of “the best interests of the child” ( see X v. Latvia [GC], no. 27853/09, § 95, 26 November 2013 ). 66. The Court recalls that it has already held that within the legal framework set up by the Hague Convention and the Council Regulation, if the children ’ s opinions must be taken into account, their opposition is not necessarily an obstacle to their return (see Raw v. France, no. 10131/11, § 94, 7 March 2013). 67. Notwithstanding the State ’ s margin of appreciation, the Court is called upon to examine whether the decision-making process leading to an interference was fair and afforded those concerned to present their case fully, and that the best interests of the child were defended (see Ignaccolo ‑ Zenide v. Romania, no. 31679/96, § 99, ECHR 2000 ‑ I, with further references, and Tiemann v. France and Germany (dec.), nos. 47457/99 and 47458/99, ECHR 2000 ‑ IV). 68. Moreover, the States ’ obligations under Article 8 of the Convention are to be interpreted in harmony with the general principles of international law, and, in the context of international child abduction, particular account must be given to the provisions of the Hague Convention (see Golder v. the United Kingdom, 21 February 1975, § 29, Series A no. 18, and Ignaccolo-Zenide, cited above, § 95). 69. To that end, the Court considers that a harmonious interpretation of the European Convention and the Hague Convention can be achieved provided that the following two conditions are observed. Firstly, the factors capable of constituting an exception to the child ’ s immediate return in application of Articles 12, 13 and 20 of the said Convention, particularly where they are raised by one of the parties to the proceedings, must genuinely be taken into account by the requested court. That court must then make a decision that is sufficiently reasoned on this point, in order to enable the Court to verify that those questions have been effectively examined. Secondly, these factors must be evaluated in the light of Article 8 of the Convention (see Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 133, ECHR 2010 ). 70. In consequence, the Court considers that Article 8 of the Convention imposes on the domestic authorities a particular procedural obligation in this respect: when assessing an application for a child ’ s return, the courts must not only consider arguable objection to the child ’ s return, but must also make a ruling giving specific reasons in the light of the circumstances of the case. Both a refusal to take account of objections to the return capable of falling within the scope of Articles 12, 13 and 20 of the Hague Convention and insufficient reasoning in the ruling dismissing or accepting such objections would be contrary to the requirements of Article 8 of the Convention and also to the aim and purpose of the Hague Convention. Due consideration of such allegations, demonstrated by reasoning of the domestic courts that is not automatic and stereotyped, but sufficiently detailed in the light of the exceptions set out in the Hague Convention, which must be interpreted strictly (see Maumousseau and Washington, cited above, § 73), is necessary. This will also enable the Court, whose task is not to take the place of the national courts, to carry out the European supervision entrusted to it (see X v. Latvia [GC], cited above, § 107 ). 71. Furthermore, as the Preamble to the Hague Convention provides for children ’ s return “to the State of their habitual residence”, the courts must satisfy themselves that adequate safeguards are convincingly provided in that country, and, in the event of a known risk, that tangible protection measures are put in place. 72. The Court also reiterates that in matters pertaining to the reunification of children with their parents, the adequacy of a measure is also to be judged by the swiftness of its implementation, such cases requiring urgent handling, as the passage of time can have irremediable consequences for the relations between the children and the parent who does not live with them (see Iosub Caras, cited above, § 38). The delays in the procedure alone enable the Court to conclude that the authorities had not complied with their positive obligations under the Convention (see Shaw v. Hungary, no. 6457/09, § 72, 26 July 2011). 73. In the instant case, while they acknowledged that their mother ’ s refusal to return them to their habitual residence in the U.S. had been unlawful within the meaning of Article 3 of the Hague Convention, the domestic courts dismissed the applicant ’ s request for the return of his children. The Court finds that, in spite of the Government ’ s submission to the contrary, such a measure constituted an interference with the applicant ’ s right to respect for family life (see Iosub Caras, cited above, § 30, and Karrer v. Romania, no. 16965/10, § 42, 21 February 2012 ). 74. Notwithstanding the applicant ’ s arguments, the Court accepts, however, the Government ’ s submissions that the interference was provided for by law, namely Article 13 § 2 of the Hague Convention, which entered into force for Romania in September 1992 and forms part of its domestic law, and that it pursued the legitimate aim of protecting the children ’ s best interests. 75. The Court must therefore determine whether the interference in question was “necessary in a democratic society” within the meaning of Article 8 § 2 of the Convention, interpreted in the light of the above ‑ mentioned international instruments, and whether, when striking a balance between the competing interests at stake, the authorities acted swiftly and appropriate consideration was given to the children ’ s best interests, within the margin of appreciation afforded to the State in such matters. 76. The Court notes that the domestic courts examined whether the children ’ s retention to Romania had been justified and whether there existed any exceptions under the Hague Convention precluding their return to the U.S. In doing so, the courts examined the evidence submitted by the parties and found that the children ’ s father, who enjoyed joint custody of the children and had exercised it prior to their departure from the U.S., had not agreed to their retention in Romania. In addition, there was no grave risk that their return would expose them to physical or psychological harm or to an intolerable situation, in spite of the strict social and religious upbringings as well as the physical punishments argument the applicant ’ s wife had raised before the domestic courts (see paragraphs 26 and 32, above). 77. The Court also notes that the domestic court ’ s decision to refuse the children ’ s return to their State of habitual residence had been based on their objection to return. In this connection, the Court notes that the first-instance court had heard the children directly in the absence of any of their parents or relatives and after they had received psychological counselling. All the three children had freely stated that they objected to their return to the U.S. In addition, the domestic courts provided reasons why they considered that the children had attained a sufficient degree of maturity for their opinions to be taken into consideration and for refusing to distinguish between the situations of the three children on the basis of their age (see paragraph 33, above). 78. While, the Court would like to underline its concern with the fact that only one of the children had been over ten years old at the time, namely almost eleven, and met the minimum lawful age requirement for her opinion to be heard by the domestic courts, it is prepared to accept that the conditions for the domestic courts to be able to rely on the exception provided by Article 13 § 2 of the Hague Convention had been met. In particular, the children had objected to their return and they had been considered by the judicial authorities to be sufficiently mature for their statements to be taken into account. In addition, given the wording of the aforementioned Article of the Hague Convention, the Court can also accept that the opinion of the children can be an independent exception under the Hague Convention which, on its own, may support the exercise of discretion to refuse to order a return. 79. In terms of the weight the domestic courts gave to the children ’ s objections, the Court notes that according to the reasoning of the domestic courts they were decisive for their decision to refuse their return to the State of their habitual residence. 80. In this connection, the Court observes, however, that Article 13 § 2 of the Hague Convention or its interpretation by the Elisa Pérez-Vera Explanatory Report does not require a judge to automatically accede to the child ’ s stated wishes even if the said judge finds that the child has attained a sufficient degree of maturity (see paragraphs 51 and 52, above). Therefore, the Court considers that while the Convention recognizes that the objecting child should have a voice, it does not consider that voice to amount to a veto in the process of deciding whether he or she will be returned. Consequently, it appears that the domestic courts may be called to examine also other aspects of the child ’ s circumstances before exercising the discretion to refuse to order a return. 81. In this context the Court notes that the domestic courts also examined other aspects of the children ’ s circumstances. However, it is not entirely convinced that the domestic courts had sufficiently balanced the applicant ’ s interest of a right to family life against the competing interest of the other parties in the case and therefore had sufficiently protected the best interest of the children as defined in the light of the Hague Convention principles. In particular, the Court notes that when assessing the risks entailed by a potential separation of the children from their current environment, the last-instance court concluded that it amounted to a serious risk for them (see paragraph 33, above). Although, it is uncontested that in reaching its conclusion the last-instance court mentioned, without going into detail, the conclusions of the psychological evaluation reports available to the domestic case file, the Court notes that the said court gave no express consideration to the issue of whether the children could quickly re-adapt to a return in the U.S. Moreover, it does not appear that the courts attempted to examine if it would have been possible for the children to return to the U.S. accompanied by their mother and whether arrangements could have been made within the legal framework of the State of habitual residence or following agreements with the father for them to live together, separately from their father, pending the outcome of divorce and custody proceedings, and consequently whether such arrangements would have alleviated the serious risks mentioned by the court. 82. Such express considerations appear even more relevant given that according to the psychological evaluation report and the social investigation report submitted by the parties before the Court the opinion of the psychologist was confined to the harm to the child which would flow from an immediate separation from their mother (see paragraphs 15 and 18, above). The reports did not directly address the question of the children ’ s return or stated that it would be in any way harmful if they were to return to the U.S. accompanied by their mother and lived separately from their father. The fact that the applicant ’ s wife appeared to have refused the amiable settlement of the case prior to the initiation of the Hague Convention proceeding, does not amount in the Court ’ s view to a justification for a failure to clearly and duly consider the aforementioned aspect. 83. In addition, the Court notes from the outset that Article 11 of the Hague Convention imposes a six-week time-limit for a return decision, failing which the decision body may be requested to give reasons for the delay. The Court further notes that the European Union subscribes to the same philosophy, accepting delays in respect of the afore-mentioned time ‑ limit only in exceptional circumstances, in the framework of a system involving only EU Member States and based on a principle of mutual trust. Despite this recognised urgency, in the instant case a period of more than thirteen months elapsed from the date on which the applicant lodged his request for the return of the children to that on which the final decision was taken (see paragraphs 16 and 31, above). 84. The Court notes in this connection that the appellate court had quashed the judgment of the first-instance court on account of procedural flaws which had been independent of the applicant ’ s actions. Also the domestic authorities had allowed for a month and several days to lapse before they had re-registered the case on the fist-instance court ’ s docket. In addition, the first-instance court held the first re-hearing of the case only one month and several weeks after the file had been re-registered on its docket (see paragraphs 23-26, above). 85. The Court also observes that the Bucharest County Court failed to provide any explanation to the applicant for the length of the proceedings following his request of 12 February 2010 for a statement on the delay in the proceedings (see paragraph 29, above). In addition, no satisfactory explanation was put forward by the Government to justify the delays. 86. Consequently, the Court considers that the domestic authorities failed to act expeditiously in the proceedings to return the children, manifestly in breach of the applicable law. 87. In this connection, the Court notes that the domestic courts considered that a potential return of the children to the U.S. against their will would have destabilized them and would have subjected them to pressures which would have negatively affected their future development, particularly since the relationship between their parents had radically changed since they had left the U.S. (see paragraph 34, above). 88. The Court recalls that the interests of the child are paramount in such cases. Thus it may well have been justified, more than thirteen months after the removal from the U.S. of the applicant ’ s children, for the domestic courts to hold that the family situation they had been familiar with at the time of the departure had changed and that it was in their best interests to remain in Romania with their mother although, at that time, no final decision had established her residence there. However, where the Court accepts that a change in the relevant facts may exceptionally justify such a decision, it must be satisfied that the change was not brought about by the State ’ s actions or inactions (see, mutatis mutandis, Sylvester v. Austria, applications no. 36812/97 and 40104/98, § 59, 23 April 2003 ). 89. Having found that the time it took for the courts to adopt the final decision in the present case failed to meet the urgency of the situation, the Court considers that the change in the children ’ s circumstances was also considerably influenced by the slow reaction of the authorities. 90. In the light of the foregoing, the Court considers that the applicant suffered a disproportionate interference with his right to respect for his family life, in that the decision-making process under domestic law did not satisfy the procedural requirements inherent in Article 8 of the Convention. 91. It follows that there has been a violation of Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 92. The applicant complained that the divorce - and - custody proceedings instituted against him by his wife had been unreasonably lengthy. He relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by [a] ... tribunal ...” A. Admissibility 93. The Court notes that the complaint 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 94. The applicant submitted that the divorce - and - custody proceedings instituted against him by his wife had been excessively lengthy. While he acknowledged that the proceedings had been complex and unusual, he argued that the complexity of the case was not sufficient to justify the delays. He further submitted that, unlike the authorities, he had not been responsible for any of the repeated procedural delays and could not be held responsible for using the available means to present his case. 95. The Government submitted that the present case was particularly complex considering the exceptional character of both the factual and the legal questions involved. In addition, the proceedings were not plagued by long periods of inactivity on the part of the authorities. The divorce ‑ and ‑ custody proceedings had been suspended for more than thirteen months Therefore, that thirteen - month period should not be taken into account when assessing the total length of the proceedings. 96. The Government contended that numerous procedural steps had been undertaken during the proceedings following requests by the applicant, including attempts to hear witnesses residing in the U.S. by means of international rogatory commission proceedings and examination of preliminary objections raised by him concerning the alleged lack of jurisdiction of the Romanian courts. Therefore, the applicant had substantially contributed to the length of the proceedings. 97. The Government further submitted that the length of the proceedings had not been excessive and had not had a negative impact on the applicant. 2. The Court ’ s assessment 98. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case; the conduct of the applicant and the relevant authorities; and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 99. While it is not the Court ’ s task to determine whether the proceedings in which the applicant was involved were properly stayed (see, mutatis mutandis, Broka v. Latvia, no. 70926/01, § 24, 28 June 2007), delays caused by the adjournment or suspension of proceedings pending the outcome of another case can be attributable to the State (see, mutatis mutandis, König v. Germany, 28 June 1978, §§ 104-05, Series A no. 27). Furthermore, when assessing the relevance and reasonableness of an adjournment of a case pending the outcome of another case, the Court must take into account what is at stake for the persons involved (see, mutatis mutandis, Tibbling v. Sweden, no. 59129/00, § 32, 11 October 2005). 100. The Court notes that the divorce-and-custody proceedings instituted against the applicant by his wife lasted from 14 October 2008 to 12 March 2014. Consequently, the period to be taken into consideration is five years and five months for three levels of jurisdiction. 101. The Court considers that there have been repeated procedural delays over the entire course of the proceedings. It can accept that the case against the applicant could be regarded as complex and that the applicant was also responsible for some of the delays. That being said, it cannot but note that the proceedings, including the period in which they were adjourned pending the outcome of the Hague Convention proceedings, have lasted for more than four years and eight months only before the first ‑ instance court. Given what was at stake for the applicant and the fact that it has already found that the Hague Convention proceedings were excessively lengthy, the Court considers that the length of this period and the overall length of the proceedings cannot be justified by the complexity of the case and the adjournments caused by the applicant alone. In the Court ’ s opinion, the length of the proceedings can only be explained by the failure of the domestic authorities to deal with the case diligently (see Gümüşten v. Turkey, no. 47116/99, §§ 24-26, 30 November 2004). 102. Having regard to all the evidence before it, the Court finds that the length of the divorce-and-custody proceedings at issue does not satisfy the “reasonable time” requirement. 103. There has accordingly been a breach of Article 6 § 1 of the Convention. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 104. The applicant complained, under Article 6 of the Convention, of the unfairness of the Hague Convention proceedings, in particular that the interlocutory judgment of 13 April 2009 had been missing from the domestic case file and that the domestic authorities had failed to send him a copy of the final judgment of 25 March 2010. In respect of the divorce ‑ and ‑ custody proceedings instituted against him by his wife, after the case had been communicated to the Romanian Government he complained under the same Article that the domestic courts ’ refusal to hear foreign witnesses on his behalf through the international rogatory commission proceedings or to expedite the said proceedings, and the fact that he had had to incur high financial costs in order to submit the relevant testimonial and documentary evidence, had amounted to a breach of his right to a fair trial and prevented him from defending his rights. 105. The Court has examined the complaints as submitted by the applicant. However, having regard to all the material in its possession, and in so far as they fall within its jurisdiction, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. IV. APPLICATION OF ARTICLES 46 AND 41 OF THE CONVENTION A. Article 46 106. Article 46 of the Convention provides, in so far as relevant: “ 1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution. ... ” 107. Given the special circumstances of the present case, in particular, the subsequent developments in the children ’ s and their family ’ s situation, the Court does not consider that its judgment should imply the return of the applicant ’ s children to the U.S. (see mutatis mutandis Pontes v. Portugal, no. 19554/09, § 1 10, 10 April 2012). B. Article 41 108. 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.” 1. Damage 109. The applicant claimed 22,559 United States dollars (USD) (approximately 16,500 euros (EUR)) in respect of pecuniary damage and USD 180,000 (approximately EUR 131,600) in respect of non-pecuniary damage. He argued that the pecuniary damages claimed were for costs incurred for legal representation and transportation related to the parallel divorce-and-custody proceedings which he had had to institute before the U.S. courts. In addition, he contended that he had suffered non ‑ pecuniary damage owing to the anxiety and distress he had experienced as a result of the excessively lengthy proceedings before the Romanian courts and the separation from his children. 110. The Government submitted that the pecuniary damages claimed by the applicant actually represented costs and expenses incurred by him and should be examined accordingly. They contended that the finding of a violation would provide sufficient just satisfaction with regard to non ‑ pecuniary damage. 111. The Court shares the Government ’ s view that the pecuniary damages claimed by the applicant represent costs and expenses incurred by him and considers that the claim should be examined accordingly. Consequently, it finds no reason to award the applicant any sum under this head. 112. The Court considers that the applicant must have suffered distress as a result of the Hague Convention and the divorce-and-custody proceedings in which he was involved. It considers that sufficient just satisfaction would not be provided solely by a finding of a violation. Consequently, making an assessment on an equitable basis, the Court awards the applicant EUR 9,750 in respect of non-pecuniary damage, plus any tax that may be chargeable. 2. Costs and expenses 113. The applicant also claimed a total of EUR 27,497, including the aforementioned EUR 16,500, for the costs and expenses incurred before the domestic Romanian and American courts, and EUR 2,365 for those incurred before the Court. He submitted copies of invoices and court judgments supporting part of his claims. 114. The Government submitted that the amount claimed by the applicant was excessive and was not fully supported by the documents submitted by him. 115. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, having regard to the above criteria, the supporting documents submitted by the applicant, the fact that part of the expenses concerned proceedings in countries outside the Court ’ s jurisdiction and the nature of the issues dealt with, the Court considers it reasonable to award the sum of EUR 8,000 to cover the applicant ’ s costs and expenses. 3. Default interest 116. 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.
The Court held that there had been a violation of Article 8 of the Convention, finding that the applicant had suffered a disproportionate interference with his right to respect for his family life, in that the decision-making process under domestic law had not satisfied the procedural requirements inherent in Article 8.