CASE OF BAJRAMI v. ALBANIA
Remainder inadmissible;Violation of Art. 8;Not necessary to examine Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
Nicolas Bratza
4. The applicant was born in 1964 and lives in Caralevë, in the municipality of Shtime (Kosovo). 5. On 28 April 1993 the applicant married F.M., an Albanian national. The couple had a child, I.B., who was born on 20 January 1997. In 1998 the applicant and F.M. separated. 6. F.M., together with her daughter, moved to her parents’ house in Vlora, Albania. 7. On 6 May 1999, using forged documents, the applicant’s wife married another person without being divorced from the applicant. 8. It appears that on 15 September 1999 the Vlora District Court annulled F.M.’s second marriage. On an unspecified date she married H.I., an Albanian national who resided in Greece. 9. During the years that followed F.M.’s third marriage, she frequently travelled to Greece, leaving her daughter for long periods with her parents in Vlora, or taking her to Greece without the applicant’s consent. 10. F.M. and her parents prohibited the applicant from having contact with his daughter. Since his separation from F.M., the applicant has been permitted to see his daughter only twice, in September 2000 and May 2003. 11. On 24 June 2003 the applicant brought divorce proceedings before the Vlora District Court. 12. On 26 June 2003 the applicant requested the Vlora Police District to block his daughter’s passport in view of the fact that his wife was planning to take her to Greece without his consent. 13. Despite the applicant’s requests to the Vlora Police District, it appears that his wife took the child to Greece on 15 January 2004, using an official certificate in which the applicant’s daughter had been registered with the name I.M., using F.M.’s surname. 14. The applicant’s wife was not present at the hearings. The latter’s father testified before the court that his grandchild was in Greece with her mother, who resided there as an economic refugee. 15. On 4 February 2004 the Vlora District Court decreed the parties’ divorce. The court granted custody of the child to the applicant, having regard to the wife’s lack of interest in the child’s life, the instability of her residential arrangements and her long periods of separation from the child. 16. On 19 March 2004 the divorce and custody decisions became final. 17. On 5 April 2004 the Vlora District Court issued a writ for the enforcement of the Vlora District Court’s judgment of 4 February 2004. 18. On 13 July 2004 the Vlora Bailiffs’ Office informed the applicant that it was impossible to enforce the judgment since the child was not in Albania. 19. On 15 August 2004 and 13 January 2005 the applicant applied to the Albanian Ministry of Justice to secure the return of his daughter. 20. On 11 January 2005, when questioned by the bailiffs, F.M.’s father declared that F.M. and the child were living abroad and that he had no news of their whereabouts. The bailiffs went to F.M.’s home on three occasions between January 2005 and May 2005. 21. In May 2005 the Selenice District Police Station informed the bailiffs that F.M. and her daughter were not living in Athens and that F.M.’s father had moved to an unknown address in Tirana. 22. In July 2005 the Bailiffs’ Office informed the applicant that in order to comply with the bilateral agreement between Albania and Greece he had to introduce a request and specify the precise address of the child in Greece. 23. The applicant sent numerous requests to the Albanian authorities, the Greek Embassy in Albania, the Ombudsperson of Albania (Avokati i Popullit) and the Ombudsperson of Kosovo, in order to obtain assistance in securing the enforcement of the custody decision. 24. On 14 August 2004 the applicant initiated criminal proceedings with the Vlora District Court against his former wife, accusing her of child abduction. 25. On 13 October 2004 the Vlora District Court informed the Albanian Ombudsperson that no lawsuit had been filed with it relating to the abduction of the applicant’s daughter. 26. On 15 December 2003 the applicant initiated criminal proceedings against A.C., a Civil Status Office employee. He accused her of falsifying various documents that had enabled F.M. to remove I.B. from Albania, and particularly of forging documents declaring his wife to be unmarried and altering his daughter’s surname. 27. On 26 January 2004 the Vlora District Court decided to discontinue the proceedings. 28. On 22 August 2006 the Government informed the Registry that on 31 March 2006 the Vlora Court of Appeal had repealed the custody judgment of 4 February 2004 on the grounds that F.M. had not been duly informed of the proceedings on the custody of her daughter. The domestic court decided to send the case to the Vlora District Court for a fresh examination and thus the custody proceedings are still pending. 29. On 23 August 2006, following the Registry’s request, the applicant stated that he had neither been informed of the institution of the new proceedings nor about their outcome. 30. The proceedings had been brought by F.M.’s lawyer and held in the applicant’s absence. 31. At present, Albania has not ratified the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. 32. Article 11 of the Convention on the Rights of the Child of 20 November 1989, ratified by Albania on 27 February 1992, requires States Parties to take measures to combat the illegal transfer and non-return of children abroad. For that purpose, States should promote the conclusion of bilateral or multilateral agreements or accession to existing agreements. 33. This Agreement, signed on 17 May 1993, was ratified by Albania pursuant to Law no. 7760 of 14 October 1993 and by Greece pursuant to Law no. 2311/1995. Articles 2, 3, 23 and 24 of the Agreement provide for the possibility for the Ministries of Justice of both Contracting Parties to cooperate in the recognition and execution in their territories of final judicial decisions given by the authorities of the other Party in civil, family and commercial matters. 34. The Code of Civil Procedure, which governs, inter alia, execution of final judgments, does not contain any provisions specifically applicable to the transfer of custody of children. As a result, the general procedural rules on the execution of judgments are applicable mutatis mutandis. 35. In cases where a parent’s refusal to comply constitutes a criminal offence, the matter should be referred to the prosecuting authorities. 36. Failure to abide by a final decision concerning custody of children may be punishable under Article 127 of the Criminal Code.