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THIRD
SECTION
CASE OF FUŞCĂ v. ROMANIA
(Application
no. 34630/07)
JUDGMENT
STRASBOURG
13 July
2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Fuşcă v.
Romania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Elisabet
Fura,
Corneliu
Bîrsan,
Alvina
Gyulumyan,
Egbert
Myjer,
Ineta
Ziemele,
Ann
Power, judges,
and
Santiago Quesada,
Section Registrar,
Having
deliberated in private on 22 June 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 34630/07) against Romania
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Romanian national, Mr Marius Fuşcă
(“the applicant”), on 2 August 2007.
- The
Romanian Government (“the Government”) were represented
by their Agent, Mr Răzvan Horaţiu
Radu, from the Ministry of Foreign Affairs.
- The
applicant alleged, in particular, the passivity of the public
authorities in enforcing a judicial decision defining his rights of
contact with his child.
- On
3rd July 2008, the President of the Third Section decided
to communicate the complaint concerning the non-enforcement of
contact arrangements to the Government. It was also decided to
examine the merits of the part of the application that was
communicated at the same time as its admissibility (Article 29 §
3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1968 and lives in Câmpulung
Muscel.
- On
16 January 1999, the applicant married O.L.F. The couple had one son,
born on 31 July 1999. In March 2005, O.L.F left the couple's home,
taking her son with her, and since then both of them have been living
with the maternal grandparents.
- By
a judgment of 17 November 2005, the Câmpulung District Court
granted the couple's divorce and awarded the mother custody of the
child. This judgment was upheld by a decision of the Argeş
County Court of 10 April 2006 and by a final decision of the
Piteşti Court of Appeal of 28 February 2007. A social
investigation conducted in the framework of the divorce proceedings
indicated that O.L.F. was not working and was receiving a monthly
unemployment allowance of approximately 62 euros a month.
A. Proceedings initiated by the applicant for contact
rights
- On
22 April 2005 the applicant brought an action for the establishment
of his rights of contact with the child. The Câmpulung District
Court, by a judgment of 9 June 2005, granted the applicant
visiting rights for the first two Sundays of each month between
certain hours, one week during the summer holidays and three
days during the winter holidays. Allowing the applicant's appeal
against that judgment, the Argeş County Court, by a decision of
30 September 2005, extended his visiting rights as follows: the first
two weeks of each month from 4 p.m. on Friday until 2 p.m. on
Sunday, during the summer holidays between 1st and 31st
July, and during the winter holidays between 19th and
28th December. By a final decision of the Piteşti
Court of Appeal of 19 January 2006, following the mother's appeal on
points of law, the applicant's visiting rights were limited during
the summer holidays to the period from 1st to 15th
July and during the winter holidays to the period from 19th
to 24th December and remained unchanged in respect of the
weekends.
B. Attempts to enforce contact rights
- Faced
with his ex-wife refusal to allow him to visit the child during the
prescribed periods, on 8 December 2005 the applicant lodged
an application with the bailiff for enforcement of the judgement
of 9 June 2005. On the same date the bailiff sent a request to the
Câmpulung District Court to issue an interlocutory order to
have the said judgement declared enforceable. On 14 December 2005,
the district court allowed the request.
-
Subsequently, the bailiff initiated the enforcement actions, by
issuing a first summons to O.L.F. on 21 December 2005. Official
records drawn up by the bailiff during the period from January to
July 2006 record attempts to enforce the contact rights defined by
the judgement of 9 June 2005 and modified by the final decision of 19
January 2006.
- On
6 January 2006 the mother and the child were not present at their
home and the bailiff issued a new summons for 13 January 2006. On
that date the mother allowed the applicant to see the child at her
home and refused to let the child leave the house, declaring that an
appeal against the decision of 30 September 2005 was pending.
- On
3 and 10 February and 3 March 2006, the mother was not at home and
the grandparents refused to hand over the child, claiming that they
had not received a copy of the final decision. On these occasions the
bailiff issued a summons to the mother to comply with the judgment
granting the applicant visiting rights.
- Meanwhile,
on 17 February 2006, the applicant lodged a new request for
enforcement of the final decision of 19 January 2006. On 24 February
2006, the district court allowed the request and declared the said
decision enforceable.
- A
new summons was therefore issued on 2 March 2006, inviting O.L.F. to
comply with the final decision granting the applicant visiting
rights. On 10 March 2006, the bailiff took note that the mother
initially refused to hand over the child, stating that he did not
want to join his father. She was asked by the bailiff to bring the
child to the gate and persuade him to join his father. The child was
taken outside into the courtyard and the mother invited the applicant
to enter the courtyard and take the child. The applicant requested
that the child be brought to the gate, but then the child went back
into the house when he heard his mother crying. Then the mother
started to reproach the applicant and the bailiff for causing
distress to the child.
- On
10 April 2006, the applicant took the child from kindergarten to his
home. O.L.F. lodged a civil action to have the child returned to her.
By a decision of 13 April 2006 of the Câmpulung District
Court the applicant was ordered to return the child. On 17 April 2006
the same bailiff, accompanied by the mother, summoned the applicant
to return the child. The applicant complied but he also requested
that O.L.F. respect his right to maintain personal links with the
child. On that occasion, the mother undertook to respect his visiting
rights.
- On
12 May and 2 June 2006, the grandparents refused to hand over the
child, on the first occasion because he was sick and on the second
occasion because he was not at home. The father handed over clothes,
toys and fruit for the child. The bailiff gave notice of the fact
that a summons would be issued for 9 June 2006 and he reminded
the family of the obligation to allow the child to join his father
during the period from 1st to 15th July.
- On
9 June 2006, the mother refused to hand over the child, claiming that
he was sick and refusing to bring him outside to talk to his father
and to receive the fruit that the applicant had brought for him.
- On
5 July 2006, the bailiff noted that the grandparents refused to hand
over the child, as O.L.F was not at home and the child refused to
join his father. The bailiff took note that the applicant did not
insist on taking the child against his will.
- On
12 July 2006, the bailiff reported that the mother wanted to hand
over the child but the latter refused to join his father. The child
was brought to the gate, but as he was crying and refused to join his
father he was taken back into the house. The applicant did not insist
on forcing the child to go with him and asked the bailiff to take
note of the fact that the mother had not made any effort to persuade
the child to join him.
- On
4 August 2006, the next date for the enforcement of the visiting
rights, the bailiff drew up a report which stated that the applicant
did not present himself for the appointment and did not contact the
bailiff beforehand, leading the latter to assume that the parties had
reached an agreement. The bailiff, also taking into account the
applicant's refusal to force the child to join him against his will,
decided not to pursue the enforcement further until a new enforcement
request was made by the applicant.
- The
applicant maintained that he had subsequently made further attempts
to visit his child, but in the presence of witnesses, as the bailiff
refused to accompany him any more due to the allegedly aggressive
attitude of the mother and the grandparents. He also maintained that
the procedure with the bailiff had become financially burdensome,
especially taking into account the fact that no practical result
could be achieved.
- The
applicant further submitted that subsequently he wanted to get
information about the school results of the child, but that O.L.F.
prevented him from being around the child or his school teacher. He
maintains that he tried to meet the child at school or at his house,
he brought gifts to him on his birthday on 31 July 2008 and for
Christmas, but he was not allowed to see the child and the presents
were refused. No supporting documents were submitted to the case file
in this respect.
C. Criminal complaints against O.L.F.
23
Faced with the constant refusal of the mother to comply with the
decisions granting him visiting rights, on 15 December 2005 the
applicant lodged a first criminal complaint against O.L.F. for
non compliance with measures regarding child custody and
visiting rights.
- On
27 February 2006 criminal investigations were initiated in respect of
O.L.F. By a decision of 10 April 2006, the Prosecution Office
attached to the Câmpulung District Court terminated the
criminal proceedings and imposed on O.L.F. an administrative fine of
300 Romanian lei (RON). This decision was based on the reasoning that
during the investigations O.L.F had acknowledged that she had
prevented the applicant from meeting his child, but had done so
because the judgment awarding him contact rights was not final, since
appeal proceedings were still ongoing. The fact that the child did
not want to go with his father was also taken into consideration.
- According
to the applicant, a second criminal complaint was lodged on 6 June
2006 and criminal investigations were initiated on 3 July 2006.
Following the investigations, on 10 October 2006 the Prosecutor's
Office attached to the Câmpulung District Court terminated the
criminal proceedings against O.L.F. and imposed on her an
administrative fine of RON 400. The prosecutor noted that O.L.F.
admitted that the applicant could not see the child, but she
submitted that this was mainly due to the child's reluctance.
Moreover, O.L.F. did not have a criminal record and the two parents
were in a conflict situation. All these elements led the prosecutor
to consider that the attitude of O.L.F. did not present the danger to
society that a crime would present. This decision was upheld by a
resolution of the first prosecutor of 6 November 2006 and by a
final decision of the Argeş County Court of 14 May 2007.
- A
third criminal complaint lodged by the applicant on 20 December
2006 was dismissed on 7 February 2007 by a decision of the
prosecutor, taking into account that the matters invoked by the
applicant had already been examined during the two previous criminal
proceedings. From the information available in the case file, it does
not appear that the applicant lodged a judicial complaint against the
prosecutor's decision.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant provisions of the Code of Family and of the Code of Civil
Proceedings are stated in the Court's judgement in the case Lafargue
v. Romania, (no. 37284/02, §§ 65 and 68-70, 13 July
2006). The role and responsibilities of the local public authorities
for social assistance and child protection as well as the relevant
provisions of the Law no 272/2004 on child protection are described
in the judgement Amanalachioai v. Romania, (no.
4023/04, § 56 and 59, 26 May 2009).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant submitted that the public authorities had failed to assist
him effectively to enforce his right to have contact with his son. He
alleged a violation of 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.”
A. The Government's preliminary objection
- The
Government raised an exception of inadmissibility for non exhaustion
of domestic remedies. They submitted that the applicant had failed to
exhaust domestic remedies in so far as he had several remedies
available in the event that he was unsatisfied with the outcome of
the forced execution proceedings. Thus, he could have lodged a
contestation against the forced execution measures on the basis of
Article 399 § 1 of the CCP within fifteen days of the date when
he became aware of the contested enforcement act or of the refusal to
take a certain enforcement measure. Further he could have lodged a
complaint against the bailiff's refusal to take the necessary
enforcement measures on the basis of Law no. 188/2000 regulating the
activities of the bailiffs. On the basis of the same law, an action
in disciplinary liability could have been lodged against the bailiff.
Another legal remedy available which the applicant failed to avail
himself of was a civil action against O.L.F. for payment of civil
penalties for
non-compliance with a final decision. The
Government further considers that the applicant had an obligation to
pursue the enforcement proceedings and to make use of all available
remedies set up by the domestic law.
- The
Court notes that all the remedies put forward by the Government are
of an indirect nature and they cannot be regarded as sufficient for
the applicant's claim. Moreover, the alleged lack of action on the
part of the applicant cannot lift the responsibilities incumbent on
the public authorities, as the depositary of public force, for the
enforcement of judicial decisions (Ignaccolo-Zenide v. Romania,
no. 31679/96, § 108, ECHR 2000 I).
- The
Court observes further that the applicant instituted the enforcement
proceedings, as required by the procedural rules and thus did
everything that could reasonably be expected of him to exhaust the
national channels of redress.
The
Court accordingly dismisses the Government's objections.
B. Merits
1. Relevant principles
- The
Court notes that the mutual enjoyment by parent and child of each
other's company constitutes a fundamental element of “family
life” within the meaning of Article 8 of the Convention (see,
among other authorities, Monory v. Romania and Hungary, no.
71099/01, § 70, 5 April 2005).
- Further,
even though the primary object of Article 8 is to protect the
individual against arbitrary action by public authorities, there are,
in addition, positive obligations inherent in effective “respect”
for family life. In both contexts, regard must be had to the fair
balance to be struck between the competing interests of the
individual and of the community as a whole; in both contexts the
State enjoys a certain margin of appreciation (see Keegan v.
Ireland, 26 May 1994, § 49, Series A no. 290).
- In
relation to the State's obligation to implement positive measures,
the Court has held that Article 8 includes for parents a right that
steps be taken to reunite them with their children and an obligation
on the national authorities to facilitate such reunions (see, among
other authorities, Ignaccolo-Zenide v. Romania, cited above,
§ 94; Nuutinen v. Finland, no. 32842/96, § 127,
ECHR 2000-VIII, and Iglesias Gil and A.U.I. v. Spain,
no. 56673/00, § 49, ECHR 2003-V). This applies not
only to cases dealing with the compulsory taking of children into
public care and the implementation of care measures (see, inter
alia, Olsson v. Sweden (no. 2), 27 November 1992, §
90, Series A no. 250), but also to cases where contact and residence
disputes concerning children arise between parents and/or other
members of the children's family (see, for example, Hokkanen
v. Finland, 23 September 1994, § 55, Series A no.
299).
- The
obligation of the national authorities to take measures to facilitate
contact by a non-custodial parent with children after divorce is
not, however, absolute (see, mutatis mutandis, Hokkanen,
cited above, § 58). The establishment of contact may
not be able to take place immediately and may require
preparatory or phased measures. The
co-operation and
understanding of all concerned will always be an important
ingredient. While national authorities must do their utmost to
facilitate such co-operation, 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 (see Hokkanen, cited above,
§ 58; Olsson (no. 2), cited above, § 90).
- What
is decisive is whether the national authorities have taken all
necessary steps to facilitate the execution that can reasonably be
demanded in the specific circumstances of each case (see, mutatis
mutandis, Hokkanen, cited above, § 58;
Ignaccolo-Zenide, cited above, § 96; Nuutinen, cited
above, § 128, and Sylvester v. Austria,
nos. 36812/97 and 40104/98, § 59, 24 April 2003).
- In
this context, the adequacy of a measure is to be judged by the
swiftness of its implementation, as the passage of time can have
irremediable consequences for relations between the child and the
parent who does not live with the child (see Ignaccolo-Zenide,
cited above, § 102).
- The
Court further recalls the conclusion it reached in Glaser v. the
United Kingdom, (no. 32346/96, § 70, 19 September 2000) that
active parental participation in the proceedings concerning children
is required under Article 8 of the Convention in order to ensure the
protection of their interests and that when an applicant, as in that
case, applies for enforcement of a court order, his conduct as well
as that of the courts is a relevant factor to be considered.
2. The Court's assessment
- The
Court notes that it is common ground that the tie between the
applicant and his child falls within the scope of “family life”
within the meaning of Article 8 of the Convention.
- As
regards the background of the present case, the Court notes that the
applicant was granted by way of judicial decisions a right of regular
access to his son who stayed with the mother. It appears that the
problems concerning the implementation of these contact rights arose
immediately after they had been defined by the domestic courts and
the applicant had to request the services of a bailiff to enforce the
execution of his visiting rights.
- In
this respect, the domestic courts allowed the applicant's requests
for enforcement without undue delay; his request lodged on 8 December
2005 was allowed on 14 December 2005, while the request lodged on
17 February 2006 was allowed on 24 February 2006. The bailiff
took immediate action to enforce the decisions, by issuing summons
and accompanying the applicant to the child's home on the dates set
for his visits.
- While
it is true that the enforcement attempts were not successful, the
Court notes that the attitude of the mother, even though
significantly contributing to preventing the child from seeing his
father, was not the only reason for the failed visits. The reports
prepared by the bailiff indicate that the failure of the last
attempts was also at least partly due to the child's reluctance to
join his father. The bailiff also respected the applicant's wish not
to remove the child against his will.
- In
such a delicate situation, the Court finds it very difficult to
believe that the focus on the ordinary civil enforcement proceedings
could have improved the situation. It considers that the factual
situation indicated clearly that a softer and more sensitive approach
towards the child was needed for the successful enforcement of the
visiting rights.
- In
this respect, the Court reiterates its conclusions in Lafargue
(cited above, § 97) that the respondent State had available the
necessary means to facilitate contact between parent and child as was
proven by the meetings organised by the social services between the
applicant in that case and the child, in the presence of
psychologists.
- The
Court recalls that it is usually in the best interests of a child to
maintain family ties with both his parents (Gnahoré v.
France, no. 40031/98, § 59, ECHR 2000-IX). Looking at the
facts of the instant case, the Court believes that it would have been
important to explore all available avenues to facilitate the
maintenance of such ties, whether by way of involvement of the social
services or otherwise. Given the young age of the child, the Court
considers that assistance in counselling or psychological support
services might, usefully, be pursued in order to ensure that
opportunities for maintaining the child's relationship with the
applicant are not lost into the future. This conclusion is also
supported by the Court's view that the national authorities, by
having the benefit of direct contact with all persons concerned, are
better placed to judge what is in the best interests of the child and
to take the necessary measures in this respect. The applicant may not
have tried to make use of such services to improve his contacts with
the child (see, mutatis mutandis, D. v. Poland (dec.),
no. 8215/02), by requesting the assistance of the social
services.
-
In respect of the ordinary civil enforcement proceedings, it would
appear that the applicant gave up the assistance of the bailiff
without any prior discussion with the latter about the reasons for
not presenting himself to the next appointment or discussing what
other options were available for enforcement. The Court understands
the feeling of frustration generated by the unsuccessful enforcement
proceedings, which also started to become financially as well as
otherwise burdensome for the applicant. Nevertheless, the obligation
that had to be executed was such that it required the presence of the
father during the enforcement attempts. The bailiff, a person unknown
to the child, could not have been expected to go alone to the child's
home, take the child away and then hand him over the applicant's
home. As stated numerous times, the obligation of the national
authorities to take measures to facilitate contact is not absolute.
- The
Court further notes that it does not have any further factual
information about the enforcement attempts made after 4 August 2006,
besides the applicant's statements about his unsuccessful visits to
the child's home. On the latter date, the bailiff, in the absence of
any communication from the applicant, put the file on hold.
Meanwhile, from the applicant's statements it does not appear that
the authorities have been made aware in any way whatsoever of the
continued difficulties in enforcing his visiting rights. Stressing
the fact that public authorities have positive obligations in
securing enforcement of visiting rights and protecting thus the
applicant's right to family life, the Court, at the same time,
appreciates that
re-establishing contact with a child in such
delicate circumstances, requires long term efforts for all concerned
persons, including the applicant.
- Moreover,
the Court takes into consideration the fact that the prosecutor
imposed two fines on the mother for her failure to comply with the
applicant's access rights. Even though the amount of the fines in the
two cases was not significant in real terms, the Court finds
that the imposed fines could not be considered unreasonably low,
regard being had to her income and the fact that large fines might
have threatened the well-being of the child (see D. v. Poland
(dec.), cited above). Moreover, the said complaints were processed by
the prosecutor reasonably promptly.
- In
view of the above, while sympathising with the applicant's
predicament, the Court cannot but conclude that in this particular
case the authorities did not fail in their responsibilities to
protect the applicant's right to respect for family life. Accordingly
there has in the circumstances of this case been no violation of
Article 8 of the Convention.
II. OTHER COMPLAINTS
- The
applicant alleges further a violation of Article 6 § 1 of the
Convention in respect of the criminal proceedings initiated against
the mother and that the same facts as constituted the alleged
violation of Article 8 of the Convention, also gave rise to a
breach of Article 5 of Protocol No. 7.
- Having
considered the applicant's submissions in the light of all the
material in its possession, the Court finds that, in so far as the
matters complained of are within its competence, they do not disclose
any appearance of a violation of the rights and freedoms set out in
the Convention.
- It
follows that this part of the application must be declared
inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3
and 4 of the Convention
FOR THESE REASONS, THE COURT
- Declares unanimously the complaint concerning
the alleged failure to protect the applicant's right to respect for
family admissible and the remainder of the application inadmissible;
- Holds by six votes to one that there has been no
violation of Article 8 of the Convention.
Done in English, and notified in writing on 13 July 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judge Ziemele
is annexed to this judgment.
J.C.M.
S.Q.
DISSENTING OPINION OF JUDGE ZIEMELE
- I
could not join the majority in its finding of no violation of Article
8 in this case. In my view the main question was whether the Romanian
State has established an appropriate and effective system of
institutions and procedures for the protection of the right to family
life. I have serious doubts as to the existence of such a system.
- I
agree with the majority that the positive obligation under Article 8
in cases about implementing the visiting rights of one of the parents
is not one of result but one of means. This does not, however, mean
that the Court should not examine the effectiveness of the relevant
institutions and available procedures. On the contrary, the
underlying principle of the Convention that human rights should be
respected not only in theory but also in practice requires the Court
to examine these procedures and to see whether they form a coherent
system able to provide protection not only in theory but also in
practice.
- It
is quite obvious on the facts of the case that the execution of a
judgment granting the applicant visiting rights through a common
enforcement procedure via the bailiff did not work. On the contrary,
it turned out to take time, which in cases involving a child usually
plays against the interests of the child and the estranged parent. It
was also costly for the applicant. I note that the bailiff can only
act at the applicant's request and that he submitted such a request
several times. The fact that none of the applicant's attempts to see
the child in the presence of the bailiff materialised shows that such
a procedure, at least if applied alone, is ill-suited for the complex
matters surrounding family problems.
- The
majority reproached the applicant for not using the assistance of the
social services and for giving up using the bailiff's services. The
Court has held in its case-law concerning the obligation to return a
child that “the understanding and cooperation of all concerned
are always an important ingredient” (Ignaccolo-Zenide v.
Romania, no. 31679/96, § 94, ECHR 2000 I). “In
addition, when difficulties appear, mainly as a result of a refusal
by the parent with whom the child lives to comply with the decision
[...], the appropriate authorities should then impose adequate
sanctions in respect of this lack of cooperation and, whilst coercive
measures against children are not desirable in this sensitive area,
the use of sanctions must not be ruled out in the event of manifestly
unlawful behaviour by the parent with whom the child lives”
(Maumousseau and Washington v. France, no. 39388/05,
§ 83, ECHR 2007 XIII). These principles are equally
applicable where the enforcement of a judgment granting visiting
rights is concerned.
- I
note that in similar cases against Romania it has been established
that the social services have not been particularly effective in
facilitating the execution of a judgment either (Amanalachioai v.
Romania, no. 4023/04, § 95, 26 May 2009). It seems that
what is missing is indeed a certain co-operation between the various
institutions with the aim of achieving the execution of a court's
judgment in Article 8 cases. The lack of a coherent system of
institutions and procedures is not the fault of the applicant. I
could agree with the majority that in the absence of relevant
attempts on the part of the applicant to involve these services in
dealing with his problem, the Court is placed in a difficult
position, since it has to engage in a degree of speculation as to
whether the ineffectiveness and lack of diligence it has established
on other occasions can be said to apply in the case before it here.
But even then, I would see more a problem of exhaustion of domestic
remedies than a clear case of non-violation of Article 8.
