CASE OF E.S. v. ROMANIA AND BULGARIA
Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life) (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) (Romania);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life) (Bulgaria)
András Sajó;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Vincent A. De Gaetano;Yonko Grozev
5. The applicant was born in 1981 and lives in Hotarele, Vâlcea County. 6. On 12 November 2004, in Spain, the applicant gave birth to a girl. The father was R.E.N., a Bulgarian national. In 2008 the couple split up. 7. The child lived with her parents in Spain until January 2007, when she was sent to her paternal grandparents in Bulgaria. She remained there until March 2008. From March until June 2008 the couple again lived together with their daughter in Spain; then, with the father’s consent, the applicant returned with her daughter to Romania for what was meant to be a short stay with the child’s maternal grandmother. The applicant remained with her daughter in Romania until September 2008 and subsequently returned to Spain to work, leaving the child in Romania with her maternal grandmother. 8. On 4 November 2008 the child’s paternal grandparents visited the child in Romania. With the maternal grandmother’s consent, they took the child to town for ice-cream, accompanied by her aunt (the wife of the applicant’s brother). They stopped the car on the side of the road, expelled the aunt from the car and then returned to Bulgaria, taking the child with them without the knowledge or consent of the applicant or her family. The child has been living in Bulgaria with her paternal grandparents ever since. 9. On 29 July 2008 the applicant, represented by counsel, lodged a request for full custody of the child with the Râmnicu Vâlcea District Court (“the District Court”). She initially indicated that R.E.N. was living in Romania with her family. However, during the proceedings the applicant told the court that R.E.N. no longer lived in Romania and that she did not know his whereabouts. As a summons could therefore not be served on him, it was posted at the court’s premises and published in a newspaper. Later on the applicant provided an address in Spain, which turned out to be incomplete. 10. The court postponed four times the examination of the case, mainly on account of attempts made by the applicant and her lawyer to establish R.E.N.’s whereabouts and to secure his presence in court. On 21 November 2008 the District Court heard two witnesses for the applicant. On the same date, the applicant informed the court that her daughter had been kidnapped by the paternal grandparents. 11. On 30 January 2009 the District Court awarded custody of the child to the applicant, on the basis of the evidence in the case file, including the witness evidence and a report made by the Child Protection Agency following a visit in the applicant’s home. The parties had fifteen days to appeal. 12. In September 2009 R.E.N. sought leave to appeal outside the time limit (cerere de repunere în termenul de apel), submitting that he had been living in Bulgaria with his parents throughout the period of the proceedings and that the applicant had known of that fact. On 11 December 2009 the Vâlcea County Court (“the County Court”) quashed the decision of 30 January 2009 (see paragraph 11 above) on the ground that R.E.N. had not been legally summoned to appear. It sent the case back to the District Court. 13. On 12 February 2010 the case file was again registered with the District Court. Eleven hearings were held and the applicant and/or her counsel were present at all of them. The court heard evidence from the two parents and from four witnesses (two for each party – R.E.N. summoned his neighbours from Bulgaria) and ordered the child protection agencies in Romania and Bulgaria to investigate the living conditions both in the applicant’s mother’s home and in the paternal grandparents’ home in Bulgaria. The latter investigation was ordered by the court on 18 March 2010; the court order arrived at R.E.N.’s counsel’s office on 17 May 2010 and the latter added to the case file the final report of that investigation in both Bulgarian and Romanian on 2 September 2010. 14. In a decision of 11 November 2010 the District Court again awarded custody to the applicant. The court also noted that on 22 December 2008 R.E.N. had instituted similar proceedings in Bulgaria. Given that he had lodged his application for full custody of the child with the Bulgarian courts only after the applicant had lodged her request with the Romanian courts, the District Court considered that it had jurisdiction to deal with the matter. On the merits, the court considered that while the living conditions offered by the father and paternal grandparents were superior to the ones available in the applicant’s home, the father and the paternal grandparents did not set the child a satisfactory moral example. Regarding this point, the court referred to R.E.N.’s criminal past and to the manner in which the paternal grandparents had kidnapped the child. 15. The father lodged an appeal and the case was heard by the County Court. Five hearings took place before the County Court and both the applicant and her counsel were present at all of them. He (that is to say the father) asked the court to interview the child, who was aged seven at that time. On 10 June 2011 the court granted that request. On 14 June 2011 the applicant gave notarised consent for her daughter to obtain travel documents and to cross the border into Romania. On 29 August 2011 R.E.N. informed the applicant that the said notarised consent was not sufficient for the Bulgarian authorities. The applicant offered to travel to Bulgaria to assist in the formalities necessary to obtain a passport. On 9 September 2011 the County Court acknowledged the situation and ordered the applicant to travel to Bulgaria. It also ordered R.E.N. to allow contact between the mother and the child for the purposes of making travel arrangements. After the applicant’s visit to Bulgaria, the child was brought before the court on 17 October 2011. The child told the court in a private hearing, with the help of a Bulgarian translator, that she would prefer to stay with her father and paternal grandparents in Bulgaria; that she spoke on the phone with her mother occasionally; that she could not remember her maternal grandmother; and that she did not like being in Romania. 16. On 21 October 2011 the County Court granted custody of the child to the father on the grounds that the child was already integrated into her environment in Bulgaria, where she had lived for the past four years, and that she did not speak Romanian. 17. The applicant appealed on points of law. The Piteşti Court of Appeal held one hearing, at which the parties and their respective counsel were present. The Court of Appeal re-examined the facts and concluded that the County Court had interpreted the situation erroneously and had disregarded the child’s “best interests”. It therefore quashed the County Court’s decision and upheld the decision rendered by the District Court. The Court of Appeal delivered its final ruling in the case on 9 January 2012. 18. On 29 June 2011 the applicant, seeking temporary custody of her daughter pending the outcome of the custody proceedings, lodged a request for interim measures. On 26 July 2011 her application was rejected by the District Court on the ground that as at that time the child had already been living with her paternal grandparents in Bulgaria for over three years, it would not be in her interests to temporarily remove her from her usual environment and place her with her mother until the end of the custody proceedings. 19. The applicant appealed; on 16 September 2011 the County Court dismissed her appeal, upholding the District Court’s decision. 20. The applicant sought recognition in Bulgaria of the 30 January 2009 judgment of the first-instance Romanian court that had given custody of the child to her (see paragraph 11 above). The Pazardzhik Regional Court granted her request on 14 May 2009, finding that the Romanian judgment had become final in the absence of an appeal within the statutory time-limit (as indicated in paragraph 12, the judgment was appealed later, outside the statutory limits). On 16 April 2010 the Sofia Court of Appeal upheld this decision, which – as it was not appealed against – became final on an unspecified date. The applicant was issued with a writ of enforcement on 20 July 2010. 21. On 30 August 2010 the applicant applied to a Bulgarian enforcement officer, who brought enforcement proceedings immediately. The authorities unsuccessfully attempted on several occasions to personally serve an invitation for voluntary compliance on R.E.N. Having noted that he was working abroad for an indefinite period, the summons was posted twice – on 13 and 28 October 2010 – on the entrance gate at R.E.N.’s address. On 20 January 2011 the enforcement officer appointed a lawyer to represent R.E.N. as he had not been located. 22. On 28 January 2011 the enforcement officer scheduled the handover of the child to the applicant for 9 February 2011 and asked the police and the social services to assist him on that day. Notice of the handover was personally served on R.E.N. on 4 February 2011. On 8 February 2011 two lawyers acting on behalf of R.E.N. brought judicial review proceedings in respect of the enforcement officer’s actions; those proceedings were dismissed by the Pazardzhik Regional Court on 22 March 2011. 23. Following the unsuccessful attempt on 9 February 2011 to locate the child at the address of her paternal grandparents with whom she lived, the enforcement officer fined R.E.N. 200 euros (EUR) for failure to cooperate and scheduled 16 March 2011 as the new date for the child’s transfer to the applicant. The enforcement officer also directed the social services to help to ensure for the child a smooth transition to life with the applicant by, inter alia, arranging a meeting with a psychologist. On 15 March 2011 the social services drew up a report on the child, which concluded that abruptly removing the child from her usual environment – and thus separating her from the adults who provided her with emotional and physical security – would be detrimental to her development. The report noted that the child needed to be assisted in the process of re-establishing a relationship with her mother. 24. Upon a request of R.E.N., on 2 June 2011 the Supreme Court of Cassation suspended the enforcement proceedings brought by the applicant. It did so following R.E.N.’s request for the reopening of the proceedings for the recognition of the Romanian judgment on custody. 25. Following the suspension of the enforcement proceedings brought by the applicant in Bulgaria (see the preceding paragraph), on 12 January 2012, within the context of the reopening of the proceedings for recognition of the Romanian judgment, the Supreme Court of Cassation quashed the decision of the Sofia Court Appeal of 16 April 2010 (see paragraph 20 above). The Supreme Court of Cassation found that R.E.N. had not been summoned in accordance with the applicable procedural rules and as a result had been unable to take part in the proceedings for the recognition and enforcement of the Romanian judgment which had determined custody of his daughter. More specifically, he had only learned of those proceedings on 4 February 2011, when he had received notice to hand the child over. In the same decision of 12 January 2012 the Supreme Court of Cassation remitted the case to the Pazardzhik Regional Court for a new examination and decision. 26. On 10 May 2012, in response to the applicant’s request for the recognition and enforcement of the Romanian judgment of 11 November 2010 granting custody to her (see paragraph 14 above), which had become final and enforceable on 9 January 2012 (see paragraph 17 above), the Pazardzhik Regional Court recognised that judgment and authorised its execution in Bulgaria. Upon an appeal by R.E.N., the Sofia Court of Appeal upheld that decision on 10 April 2013. On 15 May 2014 the Supreme Court of Cassation rejected R.E.N.’s cassation appeal; the decision therefore became final on that date. 27. Thereafter, on an unspecified date, the applicant brought new enforcement proceedings in Bulgaria seeking implementation of the final Romanian judgment granting custody to her. 28. On 9 July 2014, upon R.E.N.’s request (see paragraph 43 below), the Pazardzhik District Court suspended the enforcement. The court observed that R.E.N. had in the meantime brought proceedings in Bulgaria for a change of custody in respect of the child. It then noted that the child had settled well in Bulgaria, both in terms of emotional and material comfort, having been living there uninterruptedly since November 2008. The child only spoke Bulgarian, had adapted to and quite enjoyed her schooling environment, and showed interest in the extra-curricular activities she attended. Also, she enjoyed a particularly close and warm relationship with her paternal grandparents, who were caring remarkably well for her. The court found that, in view of the above and the fact that proceedings for a change of custody were pending before the Bulgarian courts, a sudden change in the child’s environment would not be in her interests. The court then granted R.E.N.’s request and suspended the enforcement. 29. Following a telephone conversation between the applicant and an employee of the Romanian Ministry of Justice, the applicant was invited to lodge a request for the return of her daughter under the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (“the Hague Convention”; see paragraph 43 below). Accordingly, on 1 July 2011 the applicant lodged a request for the return of the child with the Romanian Ministry of Justice, the Central Authority for the purpose of the Hague Convention. 30. On 12 July 2011 the Romanian Ministry of Justice requested further clarification from the applicant, in particular asking her to explain why she had waited for such a long time before lodging her request. They informed her that any application lodged more than one year after the abduction could be rejected. On 26 July the Ministry of Justice further informed the applicant that she could request the return of her child either under the terms of the Hague Convention or under the terms of the Brussels II bis Regulation (see paragraph 46 below). They advised her to lodge her request either directly with the competent Bulgarian authority or through the Romanian Ministry of Justice. 31. On 17 August 2011 the applicant’s initial request was transmitted by the Romanian Ministry of Justice to the Bulgarian Ministry of Justice, the Central Authority for the purpose of the Hague Convention. 32. On 24 August 2011 the Bulgarian Ministry of Justice informed the applicant that the request had been refused as the Hague Convention had not entered into force between Romania and Bulgaria (see paragraph 43 below). 33. On 26 October 2011 the Romanian Ministry of Justice also informed the applicant and her counsel about the outcome of the proceedings before the Bulgarian Central Authority. They advised the applicant to apply directly to the Bulgarian courts (under Article 29 of the Hague Convention) or to the Bulgarian Ministry of Justice (either directly or through the Romanian Ministry of Justice, under the provisions of the European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children – “the Luxembourg Convention” – see paragraph 45 below). 34. On 12 December 2011 the Romanian Ministry of Justice transmitted to the Bulgarian Ministry of Justice a request lodged by the applicant under the Brussels II bis Regulation, which in its view took precedence over the Hague Convention. In the absence of any response to that request, on 9 February 2012 the Romanian Ministry of Justice repeated the request to the Bulgarian Ministry of Justice. 35. On 7 February 2012 the Bulgarian Ministry of Justice informed its Romanian counterpart that it had refused the request. In its view the Hague Convention did not apply, as the child had entered Bulgarian territory before the entry into force of that Convention between Romania and Bulgaria. Consequently, the Brussels II bis Regulation did not apply either, as it was not meant to be applicable outside the scope of the Hague Convention. 36. On 22 December 2008 R.E.N. unsuccessfully brought proceedings in Bulgaria seeking custody of the child. Those proceedings were terminated on 25 October 2010 by the Pazardzhik District Court; the decision became final on 11 November 2010. 37. At the beginning of 2011 R.E.N. brought a second set of proceedings in Bulgaria before the Pazardzhik District Court in which he sought custody of the child. His request for interim measures, namely for the child to live with his parents in Bulgaria and for him to have custody of her, as well as for the suspension of the enforcement proceedings brought in 2010 in Bulgaria by the applicant, was refused by the same court in April 2011. The court suspended the proceedings on 2 December 2011 as it had determined that another set of proceedings – between the same parties concerning the same issue – was pending in Romania (see paragraphs 9 to 17 above). 38. Following the 9 January 2012 final judgment of the Romanian courts granting custody of the child to the applicant (see paragraph 17 above), on 23 October 2012 R.E.N. brought a third set of proceedings before the Pazardzhik District Court, seeking a change of custody due to a change in circumstances. The Pazardzhik District Court terminated these proceedings on 22 November 2012 as it found that the second set of proceedings R.E.N. had brought before it (see the preceding paragraph) concerning the same issue and involving the same parties was still pending, as those proceedings had only been suspended on 2 December 2011 and not terminated. 39. Subsequently R.E.N. asked the court to terminate the second set of proceedings he had brought, and the court did so on 28 November 2012. On 10 December 2012 R.E.N. appealed against the termination of the third set of proceedings he had brought. In a final decision of 25 March 2013 the Pazardzhik Regional Court granted his request, quashed the termination of those proceedings and remitted the case to the first-instance court for examination. Within the context of those proceedings, in 2014 R.E.N. sought as a protective measure (обезпечителна мярка) the suspension of the enforcement proceedings of the Romanian judgment granting custody to the applicant. His request was granted on 9 July 2014 (see paragraph 28 above). No information is available regarding developments in those proceedings.