Beruflich Dokumente
Kultur Dokumente
JUDGMENT
STRASBOURG
19 July 2016
This judgment will become final in the circumstances set out in Article 44 § 2 of the
Convention. It may be subject to editorial revision.
E.S. v. ROMANIA AND BULGARIA JUDGMENT 1
PROCEDURE
1. The case originated in an application (no. 60281/11) against Romania
and Bulgaria lodged with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Romanian national, Ms E.S. (“the applicant”), on
29 August 2011. The Chamber decided of its own motion to grant the
applicant anonymity pursuant to Rule 47 § 4 of the Rules of Court.
2. The applicant was represented by Ms S. Cojusneanu, a lawyer
practising in Râmnicu Vâlcea. The Romanian Government (“the
Government”) were represented by their Agent, Ms C. Brumar, of the
Ministry of Foreign Affairs. The Bulgarian Government were represented
by Ms K. Radkova, of the Ministry of Justice.
3. The applicant alleged a disruption of her family life because of the
respondent States’ unsatisfactory response to her daughter being kidnapped
in Romania and illegally kept in Bulgaria by her paternal grandparents.
4. On 4 April 2013 the application was communicated to the
two respondent Governments.
THE FACTS
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.
2 E.S. v. ROMANIA AND BULGARIA JUDGMENT
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.
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
4 E.S. v. ROMANIA AND BULGARIA JUDGMENT
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.
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.
8 E.S. v. ROMANIA AND BULGARIA JUDGMENT
their administrative duties. Section 4 of the SMRDA provides that the State
shall be strictly liable for compensation for all damage which is the direct
and proximate result of an unlawful act or omission on its part. A claim for
damages can be made after the administrative act in question has been
quashed in prior proceedings. The lawfulness of administrative actions or
failure to act is established by the court within the context of proceedings
for damages (Article 204 (4) of the Bulgarian Code of Administrative
Procedure). Persons seeking redress for damage occasioned in
circumstances falling within the scope of the SMRDA have no claim under
the general law of tort, as the SMRDA is a lex specialis and excludes the
application of the general regime (реш. № 1370/1992 г. от
16 декември 1992 г. по гр.д. № 1181/1992 г. на ВС, ІV г.о.; реш. от
29 юли 2002 г. по гр.д. № 169/2002 г. на СГС, ГК, ІVб отд.).
41. Articles 622 and 623 of the 2007 Bulgarian Code of Civil Procedure
provide that an applicant can request the recognition and enforcement in
Bulgaria of a foreign judgment adopted by the courts of another European
Union Member State. Such a request should be submitted before the
competent regional court in Bulgaria and may be subject to appeal before
courts at two further levels of jurisdiction – respectively the Sofia Court of
Appeal and the Supreme Court of Cassation.
42. The relevant Articles of the Hague Convention on the Civil Aspects
of International Child Abduction of 25 October 1980 (“the Hague
Convention”) and the interpretation given to the concept of “the child’s best
interests” are described in Neulinger and Shuruk v. Switzerland ([GC],
no. 41615/07, §§ 57-68, ECHR 2010).
43. In addition to the Articles described in Neulinger and Shuruk, the
following Articles of the Hague Convention were quoted in the domestic
proceedings:
Article 29
“This Convention shall not preclude any person, institution or body who claims that
there has been a breach of custody or access rights within the meaning of Article 3 or
21 from applying directly to the judicial or administrative authorities of a Contracting
State, whether or not under the provisions of this Convention.”
Article 38 § 4
“The accession will have effect only as regards the relations between the acceding
State and such Contracting States as will have declared their acceptance of the
accession. Such a declaration will also have to be made by any Member State
ratifying, accepting or approving the Convention after an accession. Such declaration
shall be deposited at the Ministry of Foreign Affairs of the Kingdom of the
10 E.S. v. ROMANIA AND BULGARIA JUDGMENT
Netherlands; this Ministry shall forward, through diplomatic channels, a certified copy
to each of the Contracting States.”
44. Romania ratified the Hague Convention on 20 November 1992 and
Bulgaria ratified it on 20 May 2003. According to the procedure put in place
under the Hague Convention, it entered into force between the two States on
1 June 2013, after Romania had accepted Bulgaria’s accession on
12 March 2013.
45. The relevant provisions of the Council of Europe’s European
Convention on Recognition and Enforcement of Decisions Concerning
Custody of Children and on Restoration of Custody of Children, adopted in
1980 in Luxembourg (“the Luxembourg Convention”), read as follows:
Article 4
“1. Any person who has obtained in a Contracting State a decision relating to the
custody of a child and who wishes to have that decision recognised or enforced in
another Contracting State may submit an application for this purpose to the central
authority in any Contracting State.
3. The central authority receiving the application, if it is not the central authority in
the State addressed, shall send the documents directly and without delay to that central
authority.”
Article 5
“1. The central authority in the State addressed shall take or cause to be taken
without delay all steps which it considers to be appropriate, if necessary by instituting
proceedings before its competent authorities, in order:
a) to discover the whereabouts of the child;
b) to avoid, in particular by any necessary provisional measures, prejudice to the
interests of the child or of the applicant;
c) to secure the recognition or enforcement of the decision;
d) to secure the delivery of the child to the applicant where enforcement is granted;
e) to inform the requesting authority of the measures taken and their results.”
Article 13
“1. A request for recognition or enforcement in another Contracting State of a
decision relating to custody shall be accompanied by:
a) a document authorising the central authority of the State addressed to act on
behalf of the applicant or to designate another representative for that purpose;
b) a copy of the decision which satisfies the necessary conditions of authenticity;
c) in the case of a decision given in the absence of the defendant or his legal
representative, a document which establishes that the defendant was duly served with
the document which instituted the proceedings or an equivalent document;
d) if applicable, any document which establishes that, in accordance with the law of
the State of origin, the decision is enforceable;
E.S. v. ROMANIA AND BULGARIA JUDGMENT 11
Preamble
“(17) In cases of wrongful removal or retention of a child, the return of the child
should be obtained without delay, and to this end the Hague Convention of
25 October 1980 would continue to apply as complemented by the provisions of this
Regulation, in particular Article 11. The courts of the Member State to or in which the
child has been wrongfully removed or retained should be able to oppose his or her
return in specific, duly justified cases. However, such a decision could be replaced by
a subsequent decision by the court of the Member State of habitual residence of the
child prior to the wrongful removal or retention. Should that judgment entail the
return of the child, the return should take place without any special procedure being
required for recognition and enforcement of that judgment in the Member State to or
in which the child has been removed or retained.”
(iv) a judgment on custody that does not entail the return of the child has been
issued by the courts of the Member State where the child was habitually resident
immediately before the wrongful removal or retention.”
shall be enforced in another Member State when, on the application of any interested
party, it has been declared enforceable there.”
48. The relevant provision of the 1959 Treaty between Bulgaria and
Romania on legal assistance in civil, family and criminal matters reads as
follows:
Article 44
“1. Final court ... decisions rendered in respect of non-pecuniary matters (de natură
nepatrimonială) by one Contracting Party are enforceable on the territory of the other
Contracting Party without any additional proceedings, if no court [...] of the latter
Contracting Party has rendered a final decision that constitutes res judicata in the
case, or if the latter Contracting Party does not have exclusive jurisdiction in the
matter under the present Treaty.”
THE LAW
49. The applicant complained about the rupture of her family ties with
her daughter caused by the lack of a prompt reaction from the Romanian
and Bulgarian authorities in respect of return of the child, the length of the
custody proceedings in Romania, and the enforcement of her custody rights
over the child. She relied in substance on Article 8 of the Convention, which
reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and
his correspondence.
2. There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic society
in the interests of national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the protection of health or morals,
or for the protection of the rights and freedoms of others.”
A. Admissibility
50. The Bulgarian authorities considered that the applicant had failed to
exhaust all available domestic remedies in Bulgaria and requested the Court
to declare the application inadmissible. In particular, the applicant lodged
her application with the Court before the end of the proceedings for
recognition of the Romanian custody judgment in Bulgaria. In addition,
even if it could be accepted that the application has been submitted in good
time and not prematurely, the applicant should have brought a claim for
damages under section 1 of the SMRDA (see paragraph 40 above).
51. The Court observes in respect of the first argument, above, that it is
not in dispute between the parties that the proceedings for recognition in
E.S. v. ROMANIA AND BULGARIA JUDGMENT 15
B. Merits
involve the adoption of measures in the sphere of the relations of individuals between
themselves. Children and other vulnerable individuals, in particular, are entitled to
effective protection.
177. As regards the right to respect for private life, these obligations may involve
the adoption of measures designed to secure that right, including both the provision of
a regulatory framework of adjudicatory and enforcement machinery protecting
individuals’ rights, and the implementation, where appropriate, of specific measures.
178. As regards the right to respect for family life, these include an obligation for
the national authorities to take measures with a view to reuniting parents with their
children and to facilitate such reunions. This also applies to cases where contact and
custody disputes concerning children arise between parents and/or other members of
the children’s family.
179. The Court reiterates that the ineffective, and in particular delayed, conduct of
custody proceedings may give rise to a breach of positive obligations under Article 8
of the Convention.
180. It further reiterates that whilst Article 8 contains no explicit procedural
requirements, the decision-making process must be fair and such as to afford due
respect to the interests safeguarded by Article 8. In particular, in a number of
child-care cases the Court has examined whether the parents had been sufficiently
involved in the decision-making process, with a view to establishing whether their
rights under Article 8 had been violated.
181. Having regard to Article 12 of the Convention on the Rights of the Child (see
paragraphs 94 and 97 above, and in particular point 32 of the General comment no. 12
of the Committee on the Rights of the Child), the Court finds that the same
considerations apply mutatis mutandis in any judicial or administrative proceedings
affecting children’s rights under Article 8 of the present Convention. In particular, in
such cases it cannot be said that the children capable of forming their own views were
sufficiently involved in the decision-making process if they were not provided with
the opportunity to be heard and thus express their views.”
60. The general principles on the relationship between the Convention
and the Hague Convention, the scope of the Court’s examination of child
international child abduction applications, the best interests of the child and
on the procedural obligations of the States, are laid down in the Court’s
Grand Chamber judgment in the case of X v. Latvia ([GC], no. 27853/09,
§§ 93-102 and 107, ECHR 2013) and also in a number of other judgments
concerning proceedings for return of children under the Hague Convention
(see notably Maumousseau and Washington v. France, no. 39388/05, § 68,
6 December 2007; Ignaccolo-Zenide v. Romania, no. 31679/96, § 102,
ECHR 2000-I; Iosub Caras v. Romania, no. 7198/04, § 38, 27 July 2006;
Shaw v. Hungary, no. 6457/09, § 72, 26 July 2011; Adžić v. Croatia,
no. 22643/14, §§ 93-95, 12 March 2015; and R.S. v. Poland, no. 63777/09,
§§ 54-62, 21 July 2015).
these matters pertain to “family life” within the meaning of Article 8 of the
Convention and that this provision is applicable. On the facts of the present
case, the Court observes that the primary interference with the applicant’s
right to respect for her family life may not be attributed to either of the
respondent States but rather to the actions of the child’s grandparents, third
parties, who had retained the child in Bulgaria (see R.S. v. Poland,
no. 63777/09, §§ 56-57, 21 July 2015; López Guió v. Slovakia,
no. 10280/12, § 85, 3 June 2014). It therefore remains to be ascertained
whether there were any positive obligations on the part of the respondent
States with a view to securing the applicant’s right to respect for her family
life and, if so, whether any such positive obligations have been complied
with by the respondent States.
(i) In respect of Romania
62. The Court notes at the outset that the complaint against Romania
comprises two aspects. It concerns, on the one hand, the length of the
custody proceedings and, on the other hand, the effectiveness of the return
proceedings instituted under the international mechanisms.
applicant did not explain why she had waited so long to institute
proceedings for the return of her child from Bulgaria. The Hague
Convention itself urges estranged parents to act promptly, so that the return
of their children can be ordered within a year of the date of their wrongful
removal (Article 12 of the Hague Convention; see Neulinger and Shuruk,
cited above, § 57).
70. The Court is satisfied that, once the matter had been referred to
them, the Romanian authorities acted promptly, seeking clarifications,
advising the applicant on the best course of action and effectively
communicating with the Bulgarian authorities, thus striving to secure a
timely decision on the matter (see paragraphs 30 and subsequent, above).
71. The Court reiterates that the Hague Convention was not in force
between the two States at the relevant time (see paragraph 44 above) and
considers that a prompt decision in respect of the custody matter would have
been essential in order to allow the applicant to institute enforcement
proceedings in Bulgaria under the Luxembourg Convention (see
paragraphs 45, 68 and 67 above).
72. In any event, during the proceedings on the merits of the custody
matter, the applicant had at her disposal a faster and more effective means
of securing the return of the child – that is to say, lodging an application for
interim measures, a course of action of which the applicant did in fact avail
herself (see paragraph 18 above). The Court reiterates that the child was
removed from her mother’s home soon after the custody proceedings
started. However, the applicant waited for three years after the removal,
before applying to the courts with her request. The Court accepts that in
deciding not to change during the proceedings the child’s country of
residence from Bulgaria (where she became integrated in the three years
that she spent in her grandparents’ home) to Romania the domestic
authorities took a sensible decision in the child’s best interests (see,
mutatis mutandis, Neulinger and Shuruk, cited above, §§ 57-68). Lastly on
this point, the Court reiterates that the mere fact that the request was refused
by the courts does not deprive it of its effectiveness.
73. The foregoing considerations are sufficient to enable the Court to
conclude that the Romanian authorities promptly assisted the applicant in
her attempts to have her child returned to her, in so far as the matters were
brought to their attention and fell within their jurisdiction. There has
accordingly been no violation of Article 8 of the Convention in this respect.
(ii) In respect of Bulgaria
74. The Court notes that the applicant approached the Bulgarian
authorities on several occasions, seeking to be reunited with her child.
75. The first time was as early as 2010, when the Bulgarian courts
recognised the first-instance Romanian court judgment granting custody to
the applicant (see paragraph 19 above). Although that judgment was not
E.S. v. ROMANIA AND BULGARIA JUDGMENT 21
2. Holds, by six votes to one, that there has been a violation of Article 8 of
the Convention in respect of Romania concerning the custody
proceedings;
A.S.
M.T.
E.S. v. ROMANIA AND BULGARIA JUDGMENT – SEPARATE OPINION 25