CASE OF FERNANDES DE ARAÚJO v. ROMANIA

FOURTH SECTION

CASE OF FERNANDES DE ARAÚJO v. ROMANIA

(Application no. 10772/21)

JUDGMENT
 

STRASBOURG

16 April 2024

This judgment is final but it may be subject to editorial revision.

In the case of Fernandes de Araújo v. Romania,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

 Faris Vehabović, President,
 Anja Seibert-Fohr,
 Sebastian Răduleţu, judges,
and Simeon Petrovski, Deputy Section Registrar,

Having regard to:

the application (no. 10772/21) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 8 February 2021 by a Portuguese national, Mr Rui Alexandre Fernandes de Araújo (“the applicant”), who was born in 1972, lives in Massamá and was represented by Mr J.M. Rocha, a lawyer practising in Mem Martins;

the decision to give notice of the application to the Romanian Government (“the Government”), represented by their Agent, Ms O.F. Ezer of the Ministry of Foreign Affairs;

the decision to give priority to the application (Rule 41 of the Rules of Court);

the decision of the Portuguese Government not to exercise their right to intervene in the proceedings (Article 36 § 1 of the Convention);

the parties’ observations;

the decision to reject the Government’s objection to the examination of the application by a Committee;

Having deliberated in private on 26 March 2024,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The application concerns the non-enforcement of a court decision ordering the return of the applicant’s children to Portugal.

2.  The applicant, a Portuguese national, married a Romanian national, Ms M. The couple were resident in Portugal. Their children, A. and I., were born respectively in 2010 and 2013 in Portugal.

3.  Since the summer of 2013 the family had travelled on several occasions between Portugal and Romania. In March 2015 the applicant filed for divorce in the Cascais Family Court (Lisbon); it appears that in August 2015 M. made a similar request before the Romanian courts.

4.  On 8 April 2016, relying on the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”), the applicant lodged proceedings with the Bucharest County Court for the return of the children to Portugal.

5.  On 8 July 2016 the County Court found that the children’s habitual residence was in Portugal and ordered their return. The decision was upheld by a final decision of 7 November 2016 of the Bucharest Court of Appeal.

6.  On 4 May 2017 the Cascais Family Court pronounced the couple’s divorce; the custody matters remained pending. Meanwhile, on 13 September 2017 the children’s custody was granted to the applicant by an interim order.

7.  As M. opposed enforcement of the return order, on 19 January 2017 the applicant requested the services of a bailiff in Bârlad, where M. and the children lived.

8.  On 26 January 2017, at the bailiff’s request on behalf of the applicant, the Bârlad District Court allowed the enforcement proceedings. On 3 February 2017 the bailiff sent a notification to M., inviting her to a meeting scheduled to take place on 9 February 2017 in his office with a view to handing over the children to the applicant. M. and the children did not attend the meeting.

9.  On 16 February 2017 the applicant asked the bailiff to continue the enforcement, to seek daily penalties from M. for the delays in the enforcement of the return order (Article 905 of the Code of Civil Procedure), to request, via the child protection authority, psychological counselling for the children and, in the case of continued non‑compliance, to lodge a criminal complaint against M.

10.  On 23 February 2017 the bailiff lodged a request for delay penalties with the Bârlad District Court. On 5 April 2017 the Bârlad District Court dismissed the request on the grounds that, as the bailiff’s notification had been sent by post and not handed directly to M., it had not been established that M., in bad faith, had refused to comply.

11.  In a final decision of 16 August 2017 the Vaslui County Court dismissed the bailiff’s and the applicant’s appeals, finding that after the beginning of the enforcement proceedings, the Vaslui County Court had rendered a decision (see paragraph 13 below) establishing the children’s residence with M., who accordingly could no longer be compelled to enforce the return order.

12.  Meanwhile, M. lodged an interim request asking that the children be allowed to live with her in Romania pending the outcome of the custody proceedings which had started meanwhile in the Cascais Family Court (see paragraph 6 above). In a decision of 15 December 2016 the Bârlad District Court dismissed the request, noting that the only reason for lodging the request was to put off the execution of the return order.

13.  M. appealed, and in a final decision of 7 June 2017 the Vaslui County Court established the children’s residence with M., pending the outcome of the custody proceedings in Portugal. It asserted, based on Article 20 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility (“the Brussels II bis Regulation”), that it had jurisdiction to take provisional measures while the main custody proceedings were pending. It acknowledged that the return order still needed to be enforced, but observed that the children had already spent three years in Romania and were integrated in their new environment.

14.  On an unspecified date, M. moved with the children. The applicant sought help from the Romanian Ministry of Justice to find their new address. They were eventually located in Bicaz.

15.  On 9 February 2018, the applicant ended the enforcement proceedings started in Bârlad (paragraphs 7-11 above) and started enforcement with a bailiff who had territorial jurisdiction in Bicaz.

16.  On 3 April 2018 the bailiff invited M. to come to his office on 19 April 2018, to hand over the children to the applicant. M. took the children out of school and did not attend the meeting. The bailiff informed the child protection authority of the situation and lodged a request for delay penalties before the Bicaz District Court.

17.  On 25 November 2020 the Bicaz District Court dismissed the request, on the grounds that it had not been established that M. had been aware of the enforcement proceedings and that, in any case, she had meanwhile moved with the children to Bârlad.

18.  On 11 May 2018 M. lodged an action with the Bârlad District Court seeking attribution of parental responsibility for the children. In a decision of 28 November 2018 the court denied the request, finding that, as it had been established that the children’s habitual residence was in Portugal, the Romanian courts lacked jurisdiction to entertain the action.

19.  On 28 February 2018 the applicant lodged a criminal complaint against M. for non-assistance to the enforcement authorities and non‑compliance with a court order concerning child custody arrangements (respectively Articles 287 and 379 of the Criminal Code).

20.  On 20 January 2020 the applicant complained about the length of the investigation and on 3 February 2020 the Bârlad District Court ordered the prosecutor’s office attached to the Bârlad District Court, which was supervising the investigation, to finalise it by 1 August 2020.

21.  On 30 July 2020 the Bârlad police proposed closing the investigations on the grounds that, concerning the first offence, M. did not have a duty to support the enforcement authorities, therefore she could not commit the offence in question; and, concerning the second offence, there was no court decision awarding custody or contact rights in the case. The police proposal was endorsed by the prosecutor’s office (31 July 2020) and upheld by the prosecutor in chief of the same office (22 September 2020) and by the Bârlad District Court (final decision of 24 December 2020).

22.  At the date of the most recent communication from the parties (5 January 2022), to the Court’s knowledge, the return order was still unenforced.

THE COURT’S ASSESSMENT

23.  Relying on Article 8 of the Convention, the applicant complained about the non-enforcement of the return order (see paragraph 5 above).

24.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

25.  The general principles concerning domestic court orders and their implementation in respect of custody and/or contacts between parents and their children, including a return order issued under the Hague Convention, have been summarised, inter alia, in Ignaccolo-Zenide v. Romania (no. 31679/96, §§ 94-96 and 102, ECHR 2000-I), Shaw v. Hungary, (no. 6457/09, §§ 63-68, 26 July 2011), Strumia v. Italy, (no. 53377/13, §§ 110‑11, 23 June 2016), and I.M. and Others v. Italy, (no. 25426/20, §§ 106‑08, 10 November 2022).

26.  In the present case, although the courts ordered the children’s return to Portugal on 7 November 2016 (see paragraph 5 above), that decision remained unenforced at least until 5 January 2022 (see paragraph 22 above), despite the applicant having actively pursued enforcement proceedings and having sought assistance from various authorities (see paragraphs 7, 9, 15 and 19 above).

27.  The measures taken so far by the authorities involved have not been sufficient, timely or adequate to secure the children’s return to Portugal.

28.  In particular, each of the two bailiffs did little more towards reuniting the applicant with his children than organise a meeting between the parties (see paragraphs 8 and 16 above) and, despite M.’s failure to appear, took no steps to establish contact with her. The Court is persuaded that the perfunctory manner in which they complied with their obligation contributed to the domestic courts’ decision to dismiss the requests for delay penalties (see paragraphs 10 and 17 above). It does not appear that the bailiffs sought the assistance of police and child protection experts or psychologists for the enforcement, options available under Articles 188 and 910‑913 of the Code of Civil Procedure (“the CPP”) (see also Raw and Others v. France, no. 10131/11, § 93, 7 March 2013, and Kuppinger v. Germany, no. 62198/11, § 107, 15 January 2015).

29.  Admittedly, the second bailiff promptly informed the child protection authority of M.’s opposition (see paragraph 16 above). However, nothing indicates that the child protection authority added its support to the enforcement efforts either before or after that notification.

30.  It must also be noted that, despite the existence of the return order, on 7 June 2017 the Vaslui County Court awarded M. temporary custody of the children (see paragraph 13 above). This decision ran counter to the children’s best interests to be promptly returned to their place of residence (see X v. Latvia [GC], no. 27853/09, §§ 35-36 and §§ 96-97, ECHR 2013). It also disregarded the existence of custody proceedings before the Cascais Family Court which unequivocally asserted its jurisdiction in the matter (paragraph 6 above). In addition, this decision must have contributed to the protraction of the enforcement, as the first request for delay penalties was dismissed on this basis (see paragraph 11 above), thus depriving the applicant of the use of an effective coercive measure against M.

31.  It must be noted that it took almost three years for the applicant to receive a final decision in the criminal complaint lodged against M. (see paragraphs 19 to 21 above). Surprisingly, there is no mention in the prosecutors’ and the courts’ decisions of M.’s failure to comply with the return order or of her having repeatedly changed her and her children’s residence in Romania during the enforcement proceedings (see paragraphs 14, 15 and 17 above).

32.  It thus appears that, by the manner in which the authorities reviewed M.’s actions (or inaction) she was allowed to hinder the enforcement efforts and the applicant was left without effective support for his efforts to obtain enforcement of the court decision ordering his children’s return to Portugal.

33.  In the light of the above, notwithstanding the urgency inherent in matters concerning relations between parents and their children (see Ignaccolo-Zenide, cited above, § 102, and Sylvester v. Austria, nos. 36812/97 and 40104/98, §§ 66-69, 24 April 2003), the Court concludes that the domestic authorities did not take effective steps to enforce the return order, thus allowing it to remain ineffective for more than five years (see paragraph 26 above).

34.  There has accordingly been a violation of Article 8 of the Convention in this respect.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

35.  The applicant did not submit a claim for just satisfaction. Consequently, the Court considers that there is no call to award him any sum on that account.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

Done in English, and notified in writing on 16 April 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Simeon Petrovski Faris Vehabović
 Deputy Registrar President