CASE OF NIȚĂ v. ROMANIA
No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life)
Egidijus Kūris;Iulia Motoc;Paulo Pinto De Albuquerque
4. The applicant was born in 1970 and lives in Râmnicu-Vâlcea. 5. In 1993 the applicant married N.E.C. and their daughter M.A. was born in 2001. Following the couple’s divorce on 28 February 2007, the mother was granted physical custody of the child. As the parents had reached an agreement regulating the applicant’s contact with the child, the visiting rights were not discussed in the divorce proceedings. 6. Until December 2009, the applicant had unhindered opportunity to talk to his daughter on the phone and to take her to his home whenever he wished. After that date, N.E.C. stopped answering the phone and the only possibility for the applicant to see his daughter was outside her school. 7. Consequently, on 7 July 2011 the applicant instituted contact proceedings before the Râmnicu-Vâlcea District Court, as a result of which on 16 December 2011 a visiting schedule was established in favour of the applicant. 8. N.E.C. appealed, arguing that the applicant had never been prevented from visiting the child but that since the divorce he had not visited her more than once every three months and had not contributed in any way to the continuous medical treatment she required. During the proceedings the parties reached an agreement about the visiting schedule. On 17 May 2012 the County Court questioned M.A. and noted: “The parents divorced about 5-6 years ago and after that she often used to visit her father up until about 6 months ago, when her mother stopped allowing her to answer the phone, because the father only wanted to make [N.E.C.] angry. Since then, she can no longer answer the phone and her father has not seen her. From her mother’s accounts, she understood that her father was a bad person who caused trouble to [N.E.C.] as they both had businesses selling the same products, and her father had taken away her mother’s employees by promising them higher salaries. She does not wish to visit her father because that would make her mother upset and she does not want that because she cares a lot about her mother. Her mother does not wish her to visit her father, who has a new family and a small child. (...).” 9. In a decision of 15 June 2012 (hereinafter “the contact order”) the County Court took note of the parents’ agreement as to the visiting schedule and considered that it was beneficial for the child to maintain contact with her father. 10. N.E.C. lodged an appeal on points of law, unhappy that the child would have to go to the applicant’s home. In a final decision of 19 November 2012 the Piteşti Court of Appeal upheld the County Court’s decision. It noted that the child was used to going to her father’s home and continuing this habit would help consolidate their relationship. It found: “The consolidation of the relationship between the applicant and the minor by means of complying with the County Court’s decision is even more necessary since, from the report of the interview with the minor, it appears that the minor had been visiting her father after the parents’ separation until about six months before the hearing, [when the mother] stopped allowing her to talk on the phone with the applicant; from the same report it appears that the minor does not wish to see her father in order not to upset her mother. In these circumstances, the [County Court] has correctly decided that the visits should take place in the applicant’s home, in order to allow the normal parental ties to develop and to avoid the possibility of inculcating feelings of hatred towards the father, which would run counter to the child’s harmonious psychological development.” 11. As N.E.C. continued to oppose any contact with the child, on 13 March 2013 the applicant contacted a court bailiff and started enforcement proceedings. On 23 March 2013 the application was allowed by the Brezoi District Court, which ordered enforcement of the contact order. 12. The bailiff invited N.E.C. to bring the child to his office on 5 April 2013, which she failed to do. On 3 May and 7 June 2013 and on 7 March 2014 he went to her home together with the applicant, the police and representatives of the Vâlcea Directorate General on Social Welfare and Child Protection (“the child protection authority”). On each occasion they found no one there, despite prior notification. 13. On 11 April 2013, at the applicant’s request, the bailiff lodged with the Brezoi District Court an application for penalties against N.E.C., under the provisions of Article 905 of the Code of Civil Procedure (“the CCP”, see paragraph 27 below). N.E.C. reiterated that, as M.A. was refusing to see her father, she would not agree that the child be taken against her will to the applicant’s home. On 20 June 2013 the court ordered N.E.C. to pay a fine of 500 Romanian Lei (RON – approximately 115 euros (EUR) at the relevant time) for each day of non-enforcement of the contact order, starting from the date on which the District Court decision was notified to her. The District Court reiterated the findings of the report of 17 May 2012 concerning the interview with M.A. (see paragraph 8 above) and found that the mother was responsible for the failure to enforce the visiting schedule. It found: “From the same report it appears that, although the minor likes to visit her father, she does not wish to do so any more because she does not want to upset her mother. The court concludes that the non-enforcement of the obligation set down in the contact order is caused exclusively by the debtor and there is no evidence to show that the minor herself would refuse in absolute terms contact with the creditor or that she would manifest aversion towards him.” 14. On 21 August 2013, acting on an application lodged by the bailiff under Article 188 § 2 of the CCP (see paragraph 27 below), the Brezoi District Court fined N.E.C. RON 100 (approximately EUR 22 at the relevant time) for obstructing the enforcement proceedings. 15. Meanwhile, on 18 August 2014 the bailiff noted that N.E.C. was continuing to reject the visiting schedule and concluded that the enforcement had become objectively impossible. Consequently he terminated the enforcement proceedings and lodged a criminal complaint against N.E.C. (see paragraph 20 below) under the provisions of Article 911 § 2 of the CCP (see paragraph 28 below). 16. The applicant objected to the stay of execution and asked the Brezoi District Court to compel the bailiff to continue the enforcement proceedings. He also argued that the provisions of the CCP allowing the bailiff to stay the execution while a criminal complaint was ongoing were unconstitutional in so far as it allowed the debtor − in bad faith − to stay or obliterate the enforcement efforts and to manipulate the child’s behaviour to the point of rejecting the non-custodial parent. He did not otherwise contest the findings of the bailiff’s report. On 22 May 2015 the Brezoi District Court dismissed his objection on the grounds that it had become objectively impossible to enforce the court order and that the bailiff had correctly stayed the enforcement once the prosecutor’s office had taken over the case. On 22 March 2016 the appeal lodged by the applicant was also dismissed as unfounded by the Vâlcea County Court. The latter found that the bailiff had complied with all the obligations arising from Articles 909-913 of the CCP (see paragraph 28 below). Later on, in its decision no. 299 of 12 May 2016, the Constitutional Court dismissed the constitutional complaint raised by the applicant (see paragraph 30 below). 17. On 4 March 2014 the applicant asked the District Court to quantify the amount of damages to which he was entitled under Article 905 § 4 of the CCP (see paragraph 27 below). N.E.C. maintained that it had been the applicant who had distanced himself from the child and that due to the break-up of the father-daughter relationship it was impossible to comply with the contact order at that time. On 25 September 2014 the District Court ordered N.E.C. to pay the applicant RON 9,200 (approximately EUR 2,100 at the relevant time). The latter could not obtain this payment as N.E.C. had sold all her possessions and had not declared any fixed income. 18. On 6 January 2015 the applicant asked the child protection authority to seek a court order for three months of psychological counselling for his daughter, reiterating that N.E.C. was alienating M.A. from her father. On 9 January 2015 the child protection authority refused to intervene since the bailiff had not recorded in his report that the child had opposed the enforcement “in absolute terms”, as required by Article 912 of the CCP (see paragraph 28 below). 19. On 14 January 2015 the applicant reiterated his request for psychological counselling. In addition, he asked that the relationship between the parties involved be monitored for a period of six months and that N.E.C. be fined for the delays in executing the contact order. The child protection authority’s inspectors met N.E.C. on four occasions: on 29 January, 11 March, 23 April, and 17 July 2015. Subsequently, in a letter of 22 July 2015 the authority informed the applicant that N.E.C. had not allowed them to talk with the child about her relationship with her father. The child protection authority advised as follows: “In view of the fact that for the past four years your relationship with your daughter has only consisted of a few isolated encounters, we consider that reinitiating the fatherdaughter relationship must be done gradually, bearing in mind the child’s wishes, her school programme and her extra-curricular activities. (...) For the time being, [N.E.C.] considers that it is not in the child’s best interest to reinitiate the father-daughter relationship and refuses to lend her support to this end. In the light of the above, we consider that it is important for the child that both you and your former spouse try to improve your communication and that you change your current attitude (complaints before courts and other institutions, enforcement proceedings (...)), in order to overcome the conflicts and to offer your daughter the support and reassurance that she requires at this age.” 20. Acting upon the criminal complaint lodged by the bailiff on 18 August 2014 (see paragraph 15 above), the prosecutor’s office attached to the Vâlcea County Court started an investigation into the commission of the offence of a breach of a court judgment (nerespectare a hotărârii judecătoreşti). 21. On 4 March 2015 the prosecutor changed the legal classification of the alleged facts into the offence of a breach of custody measures (nerespectarea măsurilor privind încredinţarea minorului). 22. On 4 January 2016 the prosecutor interviewed M.A. in the presence of N.E.C.’s lawyer and a psychologist from the child protection authority. M.A. refused to re-establish contact with her father and expressed her belief that her father was only trying to hurt her mother through his actions because of their work-related conflicts, of which she had been partially informed by her mother. She said: “I believe that by his actions my father wants, in reality, to hurt my mother. Yesterday I discussed this subject with my mother, as I had done once before, and she told me that she did not wish to trouble me, as those were work-related problems created by my father. It might be that through his actions my father wants to hurt my mother. I know some aspects, but not too much about the conflict between my parents concerning my mother’s work. It is possible that my father started these actions because he loves me and wishes to know me. I no longer want to know him or to have personal relations with him. (...) I think it would be best if my father left me alone. (...) It is true that my mother has never said bad things about my father, but she has never encouraged me to have personal ties with him either.” 23. On 22 April 2016, acting at the prosecutor’s request, the psychologists from the child protection authority assessed M.A. They noted in their report that M.A. refused to see her father because she had been disappointed by the manner in which he had tried to get in touch with her, namely via the authorities, thereby causing upset to her mother. The expert did not consider that counselling for M.A. would be beneficial for re-establishing the relationship between the applicant and his daughter. He recommended psychological support for the parents. 24. On 24 February 2017 the prosecutor decided to terminate the investigation on the grounds that it had not been established beyond any doubt that N.E.C. had acted in such a manner as to repeatedly prevent the applicant from seeing his daughter and that the lack of communication was caused by M.A.’s unequivocal wish and will. 25. On 18 April 2017, in response to a complaint lodged by the applicant, the prosecutor in chief of the prosecutor’s office upheld the above decision. However, in a decision of 3 October 2017 the Râmnicu Vâlcea District Court allowed a complaint lodged by the applicant, quashed the prosecutor’s decision and sent the case back to the prosecutor’s office for further examination. The court considered that, because of the mother’s influence over her, the child might suffer from parent alienation syndrome which constituted a form of psychological abuse; in order to clarify this aspect, further psychological investigation was needed. 26. In 2016, the applicant resumed contact with his former spouse, through the offices of a new bailiff. He tried to visit her home in order to see the child on 6 May, 3 June, 1 July, and 5 August 2016. On 6 April 2017 he asked N.E.C.’s opinion as to what would be the appropriate method for him to re-establish contact with his daughter.