DARICIUC v. ROMANIA
Inadmissible
Branko Lubarda;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra
1. The applicant, Mr Vasile Dariciuc, is a Romanian national, who was born in 1955 and lives in Rădăuți. He was represented before the Court by Ms I.M. Peter, a lawyer practising in Bucharest. 2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Romanian Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 4 January 2011, after his daughter had committed suicide in December 2010, the applicant notified the Suceava Child Protection Agency (“the Agency”) and complained that the child’s paternal grandparents had prevented him from contacting his five year-old granddaughter who had not been informed about her mother’s death and therefore had been potentially exposed to a severe emotional trauma. 5. On 13 January 2011 the Agency informed the applicant that they had initiated an investigation in respect of his claims. 6. On the same date the Agency summoned the paternal grandparents together with the applicant’s granddaughter to its office for an interview aimed at clarifying their family’s situation. 7. On 17 January 2011 the Agency asked the Arbore Mayor’s Office to produce a social investigation report on the paternal grandparents’ home. 8. On 20 January 2011 the Agency summoned the applicant to its office for an interview aimed at clarifying his family’s situation. 9. On the same date the applicant’s son-in-law, who had been accompanied by his granddaughter, was interviewed at the Agency’s office. According to the conversation report produced on that occasion the applicant’s son-in-law had informed the Agency that his wife had suffered from depression because he had left to work abroad. He had returned to Romania two days prior to the meeting at the Agency and had not told his daughter about her mother’s death. He had acknowledged that his daughter had to be informed about her mother’s death and had agreed to inform her with the help of a psychologist. He had also stated that the applicant had used to have a normal relationship with his granddaughter, before he had started pressuring them and picking fights in front of their home. The applicant had not agreed to the marriage between him and his wife and had used to interfere in their marriage. 10. According to that report the applicant’s son-in-law had also been counselled on how to speak to his daughter about her mother and had been advised to shield her from family fights. 11. On the same date the Agency provided the applicant’s granddaughter with psychological counselling in order to prepare her for the news that her mother had died. 12. On 24 January 2011 the Arbore Mayor’s Office produced the social investigation report requested by the Agency on 17 January 2011. The report concluded that the child had a close connection to her father and her paternal grandparents who had cared for her in her father’s absence. The father’s family had provided the child with normal conditions for her physical, moral and intellectual development and her health had not been endangered. 13. On 28 January 2011 the applicant was interviewed at the Agency’s office. According to the conversation report produced on that occasion the applicant had informed the Agency that his relationship with his son-in-law had been very bad and that his son-in-law had refused to allow him into his home. 14. According to the same report the Agency’s representatives had explained to the applicant that he had made a mistake in informing his granddaughter about her mother’s death directly and without any preliminary coaching. He had been advised that it would be in the best interest of the child to avoid and to solve family conflicts. He had also been informed that it would be advisable for him to avoid speaking ill of his sonin-law in front of his granddaughter. 15. On 29 September 2011 the Agency informed the applicant following his enquiry that they could have ordered his granddaughter’s psychological evaluation only if it had been ordered by a court or had been requested by her father. Moreover, they stated that they had not been competent to punish an individual for failure to comply with a final court judgment. Furthermore, they noted that the applicant’s granddaughter had received psychological counselling in respect of her mother’s death and in order to help her process the trauma. 16. On an unspecified date the applicant asked the Agency to inform him whether he had a right to have contact with his granddaughter and whether she could have been counselled in the absence of her father in order to improve his relationship with her. 17. On 23 July 2013 the Agency informed the applicant that they did not have the competence to contradict the final court judgment (see paragraph 29 below) granting him visiting rights. Moreover, they stated that the child could not have undergone psychological counselling without her father’s consent on account of her young age and the fact that the Agency’s intervention had not been needed for reasons imputable to the applicant’s son-in-law. 18. On 15 and 23 July 2014 the Agency informed the Romanian Government that in 2011 they had supported the applicant in his attempts to rekindle his relationship with his granddaughter. They stated that, following his daughter’s death, the applicant had asked the Agency to intervene and to help him preserve his relationship with his granddaughter. Following the applicant’s notification, the Agency’s representatives had spoken to the applicant’s son-in-law. Because his son-in-law had not informed his granddaughter about her mother’s death, the applicant’s son-in-law and the child had been included in psychological counselling program which had led to the applicant’s granddaughter finding out the truth about her mother. Neither the Agency’s, nor the Arbore Social Protection Service’s investigations carried out at the child home had disclosed any danger for the child. In this context, the Suceava Child Protection Agency had mediated a meeting between the applicant, his son-in-law and his granddaughter in order to observe their interaction and to help resolve the conflict between the two parties so that the child would not be traumatised even further. During that meeting, the interaction between the applicant and the applicant’s son-in-law had been very tense. The applicant had accused his son-in-law of killing his daughter and had called him a murderer in front of the child. Because the applicant’s son-in-law had also been verbally aggressive towards the applicant, both parties had been advised on the negative consequences of their behaviour in respect of the child. Whilst the applicant’s son-in-law had changed his behaviour and had mastered his anger, the applicant had failed to do the same even though he had been warned that his behaviour might affect his granddaughter’s emotional wellbeing and that it had caused her to reject contact with him. The applicant’s granddaughter had refused any physical contact with the applicant both before and after she had been counselled by a psychologist. 19. On the same dates the Suceava Child Protection Agency also informed the Romanian Government that every time the applicant’s granddaughter had been brought to the Agency, her psychological evaluation had been carried out in two stages: her interaction with the adults had been observed and afterwards she had received psychological counselling in the absence of her father. Also, given the child’s young age, the fact that her father had been her legal representative and that he had not been a danger to the child, there had been no legal basis for the Agency to accept the applicant’s request to organise psychological counselling sessions between him and his granddaughter without the father’s consent and in his absence. Moreover, after Law no. 272/2004 on protection of the rights of children had been amended on 30 September 2013 a person facing conflicts caused by enforcement of visiting rights could have notified the social protection service from the child’s domicile. However, after the aforementioned date the applicant had no longer contacted the Suceava Child Protection Agency, and the latter had not been informed by the Arbore Social Protection Service either that the applicant had faced problems with the enforcement of his visiting rights. 20. On 11 January 2011 the applicant opened proceedings against his son-in-law seeking custody of his granddaughter. 21. On 16 February 2011 the applicant amended his application and asked the domestic courts to grant him visiting rights in respect of his granddaughter if his request for custody rights was dismissed. He asked to see his granddaughter every Sunday at her home and to be granted the right to take her at his house for a month during the summer holiday. 22. On the same date the Rădăuți District Court allowed in part the applicant’s action and granted him visiting rights every Sunday from 10 a.m. to 6 p.m. at his granddaughter’s and son-in-law’s home. It held that the applicant was entitled to have a normal relationship with his granddaughter, a fact that had also been acknowledged by the applicant’s son-in-law who had objected only to the visiting schedule requested by the applicant. A normal relationship between the applicant and his granddaughter was in the child’s best interest. Given the child’s young age, she needed a stable living environment which could have been affected if she had to travel to the applicant’s home for a month during the summer holiday. The applicant could also have asked for an extension of his visiting rights once his relationship with his granddaughter had improved and the child had grown older. 23. The applicant appealed against the judgment before the Suceava County Court. He asked to be granted visiting rights in respect of his granddaughter at his house or in a neutral location on account of his poor relationship with his son-in-law. He further argued that a denial of his request by the court would prevent him from actually reconnecting with the child. 24. On an unspecified date the Suceava County Court ordered the Agency to produce a psychological evaluation report in respect of the applicant’s granddaughter. 25. On 4 October 2011, following the second-instance court’s order for a psychological evaluation report, the Agency organised a meeting between the applicant, his granddaughter and his son-in-law in order to assess their interaction. According to the meeting report produced on the same date, at the beginning of the meeting the applicant’s daughter had sat only in her father’s lap and had not approached the applicant. Afterwards, she had been examined by a psychologist. The applicant’s son-in-law had stated that when the applicant had come to see his granddaughter according to the court’s schedule he had told the child that her father would murder her just as he had done with her mother. At the same time the applicant had claimed that his son-in-law had been controlling his granddaughter and had turned her against him. The parties had been advised that mediation services could have been provided for them in order to help them resolve their conflict. The applicant’s son-in-law had refused, however, to leave the child alone with her grandfather because he could not have trusted his behaviour towards her. The applicant had accused his son-in-law of murdering his daughter in front of the child. At the end of the meeting the child had refused interact with her grandparent. 26. On the same date the Agency produced the psychological evaluation report ordered by the second-instance court. It concluded that the applicant, his son-in-law and his granddaughter had needed psychological counselling in order to enable them to resolve their conflict and to rekindle their relationship. 27. On 13 December 2011 the Suceava County Court allowed the applicant’s appeal, quashed in part the judgment of the first-instance court and granted him visiting rights on the second Sunday of each month from 10 a.m. to 6 p.m. at his home. It held, amongst other things, that according to the available evidence the applicant and his granddaughter had enjoyed an affectionate relationship both prior and after the child’s mother’s death. The relationship between the applicant and his granddaughter had changed abruptly and the child had refused to see her grandfather any more, her refusal being fuelled by a feeling of fear towards her grandfather. The conclusions of the psychological evaluation report produced in respect of the child had recommended psychological counselling for both the applicant and the child’s father in order to resolve the conflict between them and to allow them to have a balanced relationship with the child. Consequently, the conflict between the applicant and his son-in-law had influenced the applicant’s relationship with his granddaughter, given that the child’s attitude towards her grandfather had changed. In the absence of any evidence that the applicant would have endangered the child’s physical or moral development, he had been entitled to have a personal relationship with his granddaughter. Given the excessively tense situation between the applicant and his son-in-law, the age and the interests of the child, the relationship between the applicant and his granddaughter could have been rekindled only if he had been allowed to take her to his home during the allowed visiting hours. 28. The applicant appealed on points of law (recurs) against the judgment. He asked to be granted visiting rights in respect of his granddaughter either every Sunday or alternatively every second Sunday at his house on account of his busy work programme. He further argued that a denial of his request by the court would prevent him from rekindling the relationship with his granddaughter. 29. By a final judgment of 27 March 2012 the Suceava Court of Appeal dismissed the applicant’s appeal on points of law. It held, amongst other things, that it was in the best interest of the child to have contact with her grandfather given that the applicant had not endangered his granddaughter’s physical and moral development and that prior and after the child’s mother’s death they had had an affectionate relationship with one another which had been affected by the death of the child’s mother and the conflict between the applicant and his son-in-law. In spite of the child’s fear towards the applicant, according to the social investigation report the best interest of the child had been to establish a functional relationship with the applicant, reason for which the parties psychological counselling had been recommended. However, the visiting schedule requested by the applicant would have been tiring for the child, given their family situation and the child’s young age and would have also limited the applicant’s son-in-law’s time spent with his child. The visiting programme could have been changed once the factual circumstances had changed and if it had been in the best interest of the child. Consequently, it was more appropriate for the applicant to have contact with his granddaughter only one Sunday per month. 30. On 17 July 2012 the applicant brought criminal proceedings against his son-in-law on the basis of Article 307 of the Romanian Criminal Code for repeatedly obstructing him to see his granddaughter. He argued that although on 8 April, 7 and 13 May 2012 he had contacted his son-in-law and had asked him to allow him to have contact with his granddaughter, his son-in-law had refused to allow him to see her. 31. On 22 January 2013 the Rădăuți Prosecutor’s Office dismissed the criminal proceedings opened by the applicant against his son-in-law. It held that even though the applicant had been granted visiting rights in respect of his granddaughter by a final court judgment, every time he had asked her to go with him to his home she had obstinately refused. Moreover, the child had been heard in the presence of a representative of the Suceava Child Protection Agency and she had refused to go to the applicant’s house because she had feared him after he had repeatedly visited her at school and had scared her with his repeated requests to follow him home. Furthermore, the psychological report produced by the Suceava Child Protection Agency showed that the child had feared the applicant and had recommended that the child underwent psychological counselling in order to rekindle her relationship with the applicant. Lastly, the applicant’s son-in-law had only observed his child’s wishes and there was no evidence that he had influenced the child. The applicant appealed against the prosecutor’s office’s decision before the domestic courts. 32. By a final judgment of 12 April 2013 the Rădăuți District Court dismissed the appeal lodged by the applicant. It held that the applicant was not a parent and therefore the elements required for the offence provided by Article 307 of the Romanian Criminal Code to exist had not been met. Moreover, the police officers had heard the child in the presence of the representative of the Suceava Child Protection Agency and she had refused to go to the applicant’s home because she had feared him. The child had also stated that her father had never told her not to go to the applicant’s home. 33. In his initial letters the applicant informed the Court that in his hometown there had been only three bailiffs and all of them had refused to help him enforce the final judgment of 27 March 2012. 34. On 11 November 2013 the applicant employed a bailiff located in Suceava to enforce the final judgment of 27 March 2012. 35. On 12 November 2013 the bailiff employed by the applicant motioned the Suceava District Court to approve the enforcement of the final judgment of 27 March 2012. 36. On 14 November 2013 the Suceava District Court approved the bailiff’s request. 37. On 26 November 2013 the bailiff informed the applicant’s soninlaw that enforcement proceedings had been initiated against him following the applicant’s request. She invited the applicant’s son-in-law to her office on 3 December 2013 in order for him to pay the required enforcement fees and to provide the required information concerning his assets. She also informed him that failure to comply or to provide the required information was punishable by fines. 38. On the same date the bailiff notified the applicant’s son-in-law that he needed to comply with the domestic courts’ judgment and that the first meeting between the applicant and his granddaughter would take place on 8 December 2013. She also notified him that she would proceed with the enforcement of the judgment as provided, among other things, by Articles 910 and 911 of the Romanian Civil Procedure Code if he refused to comply. 39. On 3 December 2013 the applicant’s son-in-law agreed before the bailiff to obey the final judgment of 27 March 2012. 40. On 8 December 2013 the bailiff accompanied the applicant to his granddaughter’s home in order to enforce the judgment. The report produced by the bailiff on the same date stated that the applicant’s soninlaw had agreed to allow the applicant to see his granddaughter and had not obstructed the enforcement proceedings. The applicant’s granddaughter had a strong emotional connection with her father and had been hostile towards the applicant. She had obstinately refused to accompany her grandfather anywhere without her father being present because she had feared her grandfather. Consequently, the applicant and his son-in-law had agreed, with the child’s consent, to take the child in a public location and to spend the day together accompanied by the bailiff. The applicant had been able to give his granddaughter a gift and had interacted with her calmly and openly. The applicant’s son in law had agreed to allow his daughter to visit her grandfather any time she wished and even on other days than the ones that had been mentioned by the court. The applicant’s granddaughter had agreed to have future contact with her grandfather but only in her father’s presence. 41. On 7 January 2014 the bailiff notified the applicant’s son-in-law for a second time that he needed to comply with the domestic courts’ judgment and that the second meeting between the applicant and his granddaughter would take place on 12 January 2014. She also reiterated that she would proceed with the enforcement of the judgment as provided, among other things, by Articles 910 and 911 of the Romanian Civil Procedure Code if he refused to comply. 42. On 12 January 2014 the bailiff accompanied the applicant to his granddaughter’s home. The report produced by the bailiff on the same date stated that the parties had agreed for the meeting to take place in a public location after they had consulted the applicant’s granddaughter’s wishes. The applicant’s son-in-law had reiterated his willingness to allow the applicant to visit his granddaughter, but had informed the bailiff that she had refused to see her grandfather in his absence or in a different location than the one she had chosen. At the same time, the applicant had expressed his dissatisfaction with his son-in-law’s compliance with the final court judgment granting him contact rights, in so far as he had been influencing the child in choosing the locations of their meetings and therefore he had not allowed him to spend time with his granddaughter at his home. The applicant and his granddaughter had enjoyed the time together, while the applicant’s son-in-law had kept a low profile. Also the parties had agreed to allow the child and her grandfather to choose together the locations of their future meetings. At the end of the day the applicant’s granddaughter had refused her father’s proposal to travel back to her home in the company of her grandfather. 43. On 9 February 2014 the bailiff accompanied once more the applicant to his granddaughter’s home. The report produced by the bailiff on the same date stated that the applicant and his granddaughter had agreed for the meeting to take place in a public location. The applicant and his son-in-law had a disagreement on whether the location of the meetings could have been chosen by the applicant on his own or only with the child’s consent. The interaction between the applicant and his granddaughter had been short and the child had behaved apprehensively towards him because he had scolded her over the phone prior to their meeting. Subsequently, the applicant and his son-in-law had had a fight and the latter had taken his daughter and had left. Before leaving the applicant’s son-in-law had stated that he had not complied with the judgment granting the applicant visiting rights because he had felt compelled, but as a result of the enforcement proceedings. 44. On 2 April 2014, once more, the bailiff notified the applicant’s sonin-law that he needed to comply with the domestic courts’ judgment and that a new meeting between the applicant and his granddaughter would take place on 13 April 2014. She also reiterated that she would proceed to enforce of the judgment as provided, among other things, by Articles 910 and 911 of the Romanian Civil Procedure Code if he refused to comply. Moreover, she drew the applicant’s son-in-law’s attention to the provisions of Article 912 of the Romanian Civil Procedure Code and informed him about the applicant’s right under the last paragraph of Article 912 to motion the courts to apply penalties if the child refused to comply even during those enforcement proceedings. 45. On 5 May 2014 the applicant asked the bailiff to cease the enforcement proceedings. In his written request he stated, among other things, that the judgment could not be enforced because his son-in-law had influenced his granddaughter. Moreover, his son-in-law had allegedly informed him that he would never allow his granddaughter to visit his home. 46. On 22 July 2014 a bailiff located in the applicant’s home town informed the Government that no enforcement file had been registered by his office concerning the final judgment of 27 March 2012. 47. On 25 July 2014 a second bailiff located in the applicant’s home town informed the Government that the applicant had not asked him to enforce the final judgment granting him visiting rights. However, the aforementioned bailiff stated that an unknown person had spoken to him in 2013 about a case similar to that of the applicant, but that after the discussion the person had left without returning. He had advised that person that the refusal of the child to have contact with him had been a problem and that the adult had to make efforts in order to rekindle the relationship with the child. At the same time he had advised that person to notify the child protection services and a psychologist in order to avoid any trauma for the child. 48. On 29 July 2014 the bailiff employed by the applicant informed the Government that the applicant and his son-in-law had fought every time they had met. The applicant had been dissatisfied with his son-in-law’s presence at the meetings and had accused him that he had not allowed the child to go to his home. At the same time, the applicant’s granddaughter had obstinately refused to meet with her grandfather in her father’s absence. During each meeting the bailiff had repeatedly tried to convince the child to meet with her grandfather in her father’s absence, but she had refused. 49. On 5 February 2013 the Arbore Police Department informed the applicant’s son-in-law that, following his request, the applicant had been warned not to visit his granddaughter’s school, although he had spoken only to the teachers and had enquired about her schooling situation. 50. On 23 July 2014 the Arbore Mayor’s Office informed the Government that they had not taken any steps in order to assist the applicant in the enforcement of his visiting rights because he had not asked them to assist him. Moreover, they acknowledged that the applicant’s son-in-law had complained before them that the applicant had visited his granddaughter’s school in breach of the visiting programme set out by the domestic courts. They also stated that the applicant’s son-in-law had attached a number of documents to his complaint including copies of the operative part of the judgment setting out the applicant’s visiting rights, a copy of the judgment dismissing the applicant’s criminal complaint against his son-in-law and the reports prepared by the bailiff employed by the applicant on 8 December 2013 and 12 January 2014. 51. Articles 14 and 16 provided that a child had the right to maintain personal relations and direct contact with his parents, relatives and other persons with whom he had developed a close connection. He also had a right to know his relatives and to maintain personal relations with them as well as with other persons with whom he had developed family relations if it did not affect his best interest. The child’s parents or any other legal representative could not prohibit the child’s contact with his grandparents, except in circumstances where a court had decided otherwise. 52. Article 15 provided that the child’s personal relationships could be maintained by meeting the person entitled to have contact with him at the child’s or the aforementioned person’s home. 53. On 3 October 2013 Law no. 272/2004 was amended. Following its amendment Article 15 also provided among other things that the parent living with the child had a duty to help maintain the child’s relationship with the other parent. In order to rekindle and maintain a child’s personal relationships, the social protection or the child protection agencies had to provide professional counselling to both the child and his parents upon their request. If the parent living with the child obstructed the child’s personal relations with the other parent by ignoring the schedule set out by the court or agreed on by the parties, the other parent could request the social assistance services from the child’s home to monitor the situation for up to six months. During the monitoring process the representatives of the social assistance services could attend the moment the parent not leaving with the child would take him from his home or return him and could interview the parents, the child or any other person either leaving with the child or not in order to produce a monitoring report. The monitoring report could recommend the extension of the monitoring period by a maximum of six months, the psychological counselling of one or both parents and a series of measures aimed at improving the child’s relation with the parent with whom he was not living. The monitoring report could also be used as evidence before the court. 54. Following the amendment of Law no. 272/2004 on 3 October 2013 Article 161 was introduced. It provided that at the request of an interested person the domestic courts could order several measures, such as fines and security deposits, in order to secure the child’s contact rights with other persons. 55. The relevant provisions concerning interlocutory measures, namely Article 581, are set out in Costreie v. Romania (no. 31703/05, § 56, 13 October 2009). 56. Article 300 provided that an appeal on points of law suspended the enforcement of a judgment only in cases concerning the moving of land borders, destruction of constructions, crops or of any other fixed work as well as in cases expressly provided by law. 57. Article 24 provided that the provisions of the New Civil Procedure Code applied only to trials and enforcement proceedings started after it had entered into force. 58. Article 711 provided among other things that any interested party could contest the enforcement or the enforcement acts. The enforcement could also be contested if the bailiff refused to carry out an enforcement or to carry out an enforcement act according to law. 59. Articles 909 provided among other things that if the debtor ignored the bailiff’s notification to observe the creditor’s contact rights, the bailiff could, at the creditor’s request, ask the court to apply penalties on the debtor. 60. Article 910 provided among other things that if the debtor failed to comply with his duties within a month from the notification of the court order for penalties, the bailiff had to proceed with the enforcement. The enforcement had to be carried out in the presence of a representative of a child protection agency, and when the latter considered it necessary, in the presence of a psychologist assigned by him. If requested by the bailiff, public agents had to assist with the enforcement. Bullying or pressuring the child in order to successfully enforce a judgment was prohibited. 61. Article 911 provided among other things that if the debtor was acting in bad faith and hid the child, the bailiff had to record the incident and inform the prosecutor’s office attached to the court charged with the enforcement proceedings in order to open criminal proceedings against the debtor for failure to comply with a court judgment. 62. Article 912 provided among other things that if the bailiff noted that the child himself categorically refused to leave the debtor or was hostile towards the creditor, he had to produce a report describing the situation. He also had to communicate the aforementioned report to the parties and to the representative of the child protection agency. The representative of the child protection agency had to motion the competent court from the child’s home, for the court to set out, depending on the child’s age, a schedule for psychological counselling sessions for a period no longer than three months. The court had to examine the request urgently in a council chamber, by a final interlocutory judgment after summoning the parties and the person living with the child. The court-appointed psychologist had to produce a report at the end of the counselling sessions which had to be communicated to the court, the bailiff and to the child protection service. The bailiff had to resume the enforcement proceedings as provided by Article 910 after receiving the psychologist’s report. If the minor continued to refuse to comply, even during those enforcement proceedings, the creditor could ask the competent court from the child’s home to order penalties. 63. Article 307 provided among other things that the refusal of a parent to return a child without the consent of the other parent or the person enjoying custody rights in respect of the child was punishable by a prison sentence or by a fine. The same punishment could be applied in respect of the person who enjoyed custody rights if he or she had repeatedly prevented the child’s parents from maintaining contact with their child as agreed by the parties or set out by a court.