Monday, May 04, 2015

ROMANIAN VIOLATION OF THE HAGUE ABDUCTION CONVENTION


Jeremy D. Morley
In the case of Ferrari v. Romania, the European Court of Human Rights (Third Section), (Application no. 1714/10) has ruled (judgment dated 28 April 2015) that Romania violated Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms by failing to resolve a Hague Abduction Convention case expeditiously. Unfortunately, although it was apparent that the thrust of the problem was that the Court of Appeal misapplied the Hague Abduction Convention, the European Court focused on delays in the Romanian process more than on the Romanian appeal court’s obvious refusal to interpret the Convention correctly.
The case concerned a child who was habitually resident in Argentina. His parents agreed that he would spend a few months with is Romanian mother in Romania before returning home to Argentina. The mother refused to return the child and the father commenced his Hague case in Romania in 2007 (!).
The request for return of the child was examined by two ordinary courts which agreed, based on the evidence in the file, that the child was unlawfully retained in Romania and consequently ordered his return to his habitual residence in Argentina.
These decisions were nevertheless quashed in early 2009 by means of an extraordinary appeal lodged by the mother.
The Romanian Court of Appeal considered that the child’s arrival to Romania was not unlawful as both parents had consented to the trip. It also found that the child was already integrated in his new environment. It considered that it would not be in the child’s best interest to return to Argentina, because the applicant travelled often due to his job as a military pilot and consequently could not take proper care of the child.
The case in the European Court was commenced in December 2009. Because of extraordinary backlogs in that Court, the decision was not rendered until a few days ago -- more than five years later, and resulted in a mere fine against Romania.
The Court noted that such arguments normally pertain to the merits of a case and “reiterates that quashing a final and binding decision for the mere reason that there are different views as to the interpretation of the evidence adduced is not justified and infringes the applicant’s right to a fair hearing.”
In the present case, the county court had examined the allegations that the applicant was unfit to take care of the child and had dismissed them; in this context, the re‑examination of the same issue, albeit supported by other arguments (the applicant’s travels) did not seem compatible with the criteria set out by the European Court in its case-law.
Furthermore, in its final ruling after the quashing of the return orders, the Court of Appeal established that the child had not been wrongfully brought to Romania as both parents consented to the trip. It nevertheless failed to examine whether the retention beyond what was agreed upon initially, met the requirements of the Hague Convention.
Moreover it appeared that the main reason that founded the new final decision was that the father was unable to take care of the child due to his repeated travels.
The European Court stated (weakly) that it was not convinced that the Romanian Court of Appeal’s arguments “are relevant to the scope of the Hague Convention proceedings and, even less so that they are sufficient for reversing the return order.”
The Court “reiterates that the domestic courts are better fit to examine the circumstances of the case before them … It therefore can accept that the passage of time brought about a change in the child’s situation which triggered the application of Article 12 of the Hague Convention. It remains nevertheless to be ascertained whether this change was caused or permitted by the authorities, in particular, by the overall length of the proceedings and the authorities’ attitude towards enforcement. It reiterates that effective respect for family life requires that the future relations between parents and children are not determined by the mere effluxion of time.”
In particular, the Court noted that it took the domestic courts thirteen months to decide on the matter. It stated that it had previously considered similar periods to be excessively long, in particular given the requirement of expedition which lies at the core of the Hague Convention procedure (see, in particular Monory, cited above, § 82 – 12 months; Karrer, cited above, § 54 – 11 months; but also, conversely, Strömblad, cited above, § 93 – less than one year).
The Court “reiterates that the domestic authorities are under an obligation to process return applications expeditiously, including on appeal.”
Furthermore, the Court noted that, although the return order issued by the lower court in Romania in July 2008 was final and therefore immediately enforceable, the authorities did not commence enforcement proceeding until December 2008, and that there was no information in the case as to what actions the bailiff took, except for engaging the mother in discussions and recording her refusal to comply with the return order.
This situation “raises at least questions as to whether the procedural framework in place allowed the applicant to pursue his rights effectively.”
The foregoing considerations “are sufficient to enable the Court to conclude that in not giving sufficient reasons for the non-return order, in allowing for the procedure to last for thirteen months and in protracting the enforcement proceedings, the authorities failed to facilitate the expeditious and efficient conduct of the return proceedings. In sum, the applicant did not receive effective protection of his right to respect for his family life. There has accordingly been a violation of Article 8 of the Convention.”