087
02.02.2010

Press release issued by the Registrar

Chamber judgment

 (application no. 46268/06)

VIOLATION OF ARTICLE 6 OF THE CONVENTION ON ACCOUNT OF FIVE-YEAR WAIT FOR DECISION DECLINING JURISDICTION IN DIVORCE AND CHILD CUSTODY PROCEEDINGS

Violation of Article 6 § 1 (right to a fair hearing within a reasonable time)
of the European Convention on Human Rights

Principal facts

The applicant, Radu Săileanu, is a Romanian national who was born in 1970 and lives in Bucharest. In 1994, while he was living in the United States, he married a United States national with whom he had two daughters, the first of whom was born in 1998 and the second in 2000. In September 2001 he left the United States with his elder daughter, with the written consent of his wife. He claimed that his wife was due to join them in Romania with their younger daughter with a view to settling there. Instead, his wife took their younger daughter to her parents’ house in Texas, emptied the former flat where she had lived with the applicant and their children. In October 2001 the applicant instituted divorce proceedings in the Bucharest Court of First Instance and sought custody of the children. 

On 27 January 2004 the court granted the divorce. The application for custody of the children was declared inadmissible, however, on the ground that a request lodged by the wife (under the Hague Convention on the Civil Aspects of International Child Abduction) for the return of the older daughter to the United States was pending. The applicant appealed. The Bucharest Court of Appeal held hearings in June and October 2004, and then adjourned the case to February 2005. In December 2004, however, the Court of Appeal declined jurisdiction in favour of the Bucharest County Court pursuant to a new set of rules of civil procedure. The Bucharest County Court held hearings in January, May and October 2005. On 12 December 2005 it set aside the judgment of 27 January 2004 on the divorce and custody proceedings, ruling that the Romanian courts did not have jurisdiction to hear the case. That decision, taken pursuant to the Law on private international law relations, was based on grounds including the fact that the applicant had married a United States national in that country and that the couple’s last joint home had been in the United States. In July 2005 the applicant’s wife obtained a divorce decree from a Texan court. In September 2006 the Bucharest Court of Appeal upheld the ruling that the Romanian courts lacked jurisdiction to hear the applicant’s case.

Complaints, procedure and composition of the Court

Relying on Article 6 § 1, Mr Săileanu complained that the proceedings concerning his divorce and the custody of his daughters – which had lasted nearly five years – were excessively long. Under Article 8 (right to respect for private and family life), he also complained of the fact that he had been prevented for five years from remarrying and obtaining a final court ruling on custody of his children.

The application was lodged with the European Court of Human Rights on 18 September 2008.

Judgment was given by a Chamber of seven judges, composed as follows:

Josep Casadevall (Andorra), President,
Elisabet Fura (Sweden),
Corneliu Bîrsan (Romania),
Boštjan M. Zupančič (Slovenia),
Alvina Gyulumyan (Armenia),
Egbert Myjer (Netherlands),
Luis López Guerra (Spain), judges,

and of Stanley Naismith, .

Decision of the Court

The Court reiterated that proceedings relating to civil status (as in this case) had to be conducted with special diligence in view of the possible consequences which the excessive length of proceedings might have, notably on enjoyment of the right to respect for family life. 

The Court noted that in 2004 and 2005, i.e. more than three years after the proceedings had been instituted, the Bucharest Court of Appeal and the Bucharest County Court, to which the case had been referred following a decision declining jurisdiction, had held only three hearings per year. During that period the case had been adjourned for procedural reasons and the hearing dates had been scheduled at intervals of approximately five months. The length of the proceedings was particularly excessive given that the only legal question that the domestic courts had had to decide throughout the entire proceedings had been the question of their jurisdiction. However complex that question might have been, it did not suffice to justify such lengthy proceedings.

The Court held unanimously that there had been a violation of Article 6 § 1. It considered that no separate examination was required of the applicant’s complaint under Article 8 (according to which his right to respect for his family life had been infringed on account of the length of the proceedings).

Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 2,000 euros (EUR) for non-pecuniary damage and EUR 2,000 for costs and expenses. 

***
The judgment is available only in French. This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its website ().

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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.