Communicated on 2 April 2014
THIRD SECTION
Application no. 47873/13
Vasile DARICIUC against Romania
lodged on 20 July 2013
STATEMENT OF FACTS
The applicant, Mr Vasile Dariciuc, is a Romanian national, who was born in 1955 and lives in Rădăuți.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 11 January 2011, following his daughter’s suicide in August 2010 and the refusal of his son-in-law to allow him to have personal contact with his five years’ old only granddaughter, the applicant brought proceedings against his former son-in-law seeking visiting rights in respect of his granddaughter.
On 16 February 2011 the Rădăuți District Court allowed the applicant’s action and granted him visiting rights every Sunday from 10 a.m. to 6 p.m. at his granddaughter’s and son-in-law’s home. The applicant appealed against the judgment.
On 13 December 2012 the Suceava County Court allowed the applicant’s appeal, quashed in part the judgment of the first-instance court and granted him visiting rights from 10 a.m. to 6 p.m. at his home. It held inter alia that according to the available evidence, including a psychological expert report produced in respect of the child, the applicant and his granddaughter had enjoyed an affectionate relationship both prior and after the child’s mother’s death. The relationship between the applicant and his granddaughter had changed abruptly and the child refused to see her grandfather anymore, her refusal being fuelled by a feeling of fear towards her grandfather. The conclusions of the psychological expert report recommended psychological counselling for both the applicant and the child’s father in order to resolve the conflict between them and to allow them to have a balanced relationship with the child. Consequently, it considered that the conflict between the applicant and his son-in-law had influenced the applicant’s relationship with his granddaughter, given that the child’s attitude towards her grandfather had changed. In the absence of any evidence that the applicant would endanger the child’s physical or moral development, he was entitled to have a personal relationship with his granddaughter. Given the excessively tensed situation between the applicant and his son-in-law, the age and the interests of the child, the relationship between the applicant and his granddaughter could be rekindled only if he was allowed to take her to his home during the allowed visiting hours. Both parties appealed on points of law (recurs) against the judgment.
By a final judgment of 27 March 2012 the Suceava Court of Appeal dismissed the parties’ appeals on points of law. It held inter alia that although the child had refused to have contact with the applicant, it was in the best interest of the child to have contact with him given that the applicant did not endanger his granddaughter’s physical and moral development and that prior and after the child’s mother’s death they had an affectionate relationship with one another which was affected by the death of the child’s mother and the conflict between the applicant and his son‑in‑law. In spite of the child’s fear towards the applicant, according to the social investigation report the best interest of the child was to establish a functional relationship with the applicant, reason for which the parties psychological counselling had been recommended.
On 12 July 2012 the applicant brought criminal proceedings against his son-in-law on the basis of Article 307 of the former Romanian Criminal Code for repeated obstruction to see his granddaughter. He argued that although he had repeatedly tried to have contact with his granddaughter on the days indicated by the final judgment of 27 March 2012, his son-in-law refused to allow him to visit her.
On 22 January 2013 the Rădăuți Prosecutor’s Office dismissed the criminal proceedings opened by the applicant against his son-in-law. It held inter alia that every time his seven years old granddaughter had been requested to go to the applicant’s home she had refused. In addition, according to a psychological expert report produced by the Suceava Child Protection Agency, the child feared the applicant and it was recommended that the child underwent psychological counselling in order to rekindle her relationship with the applicant. Moreover, the applicant’s son-in-law had only observed his child’s wishes. The applicant appealed against the prosecutor’s office’s decision before the domestic courts.
On 5 February 2013 the Arbore Police Department informed the applicant’s son-in-law that, following his request, the applicant had been warned not to visit his granddaughter’s school, although he had spoken only to the teachers and had enquired about her schooling situation.
By a final judgment of 12 April 2013 the Rădăuți District Court dismissed the appeal lodged by the applicant against the prosecutor’s office’s decision of 22 January 2013. It held that the applicant was not a parent and therefore the elements required for the offence provided by Article 307 of the former Romanian Criminal Code to exist had not been met. In addition, the police officers had heard the child in the presence of the representatives of the Suceava Child Protection Agency and she had refused to go to the applicant’s home because she feared him. The child had also stated that her father had never told her not to go to the applicant’s home.
On an unspecified date the applicant asked the Suceava Child Protection Agency to provide his granddaughter with psychological counselling in her father’s absence in order for them to be able to reconnect.
On 23 July 2013 the Suceava Child Protection Agency informed the applicant that the child could not undergo psychological counselling without her father’s consent on account of her young age and that the Agency’s intervention was not required for reasons imputable to the applicant’s son‑in-law.
In his initial letters the applicant informed the Court that in his hometown there were only three bailiffs and all of them refused to help him enforce the final judgment of 27 March 2012.
B. Relevant domestic law
The relevant Romanian legal provisions are set out in the Court’s judgments in the cases of Lafargue v. Romania (no. 37284/02, §§ 64-69, 13 July 2006), and Costreie v. Romania (no. 31703/05, §§ 55-58, 13 October 2009). The role and responsibilities of the Romanian local public authorities in respect of social assistance and child protection, as well as the relevant provisions of the Child Protection Act (no. 272/2004), are described in the judgment in the case of Amanalachioai v. Romania, (no. 4023/04, §§ 56 and 59, 26 May 2009).
COMPLAINT
The applicant complains under Article 8 of the Convention that the domestic authorities have been inactive and have failed to undertake all the necessary steps in order to have his visiting rights enforced speedily and to reunite him with his granddaughter.
QUESTION TO THE PARTIES
Has there been a violation of the applicant’s right to respect for his family life, contrary to Article 8 of the Convention? In particular, have the authorities taken adequate measures to ensure effective exercise of the applicant’s right of access to his granddaughter?
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