Information Note on the Court’s case-law No. 123
October 2009
D.J. and A.-K.R. v. Romania (dec.) - 34175/05
Decision 20.10.2009 [Section III]
Article 2 of Protocol No. 4
Article 2 para. 1 of Protocol No. 4
Freedom of movement
Removal and retention by a mother of her daughter declared unlawful: inadmissible
Facts – In 2000 custody of A.-K.R. (the second applicant) was granted to her mother, D.J. (the first applicant), following the latter’s divorce from R.R. In 2004, during proceedings to amend R.R.’s rights of visiting and staying contact, the child’s mother requested a change to the contact arrangements in view of her intention to emigrate to the United States to join her new husband. In November 2005 the Court of Appeal, ruling at final instance, held that the second applicant’s removal to the United States did not hamper the exercise of her father’s parental rights or his ability to request a change in the arrangements for contact with his daughter. In December 2004 the applicants left for the United States. In February 2005 R.R. brought an action before the County Court in Romania requesting that the child’s removal to the United States and her retention there be declared wrongful for the purposes of the Hague Convention on the Civil Aspects of International Child Abduction. In a final judgment of May 2005 the County Court declared the removal of the second applicant to the United States and her retention there to be wrongful. R.R. also commenced proceedings before the American authorities seeking to obtain the child’s return. In this connection the first applicant informed the American court examining the application that she did not object to the child’s return. In May 2005, having noted the consent of the first applicant, the court ordered the child’s return to Romania. The applicants returned to Romania in June 2005 and left again for the United States in February 2006. In August 2006 the Romanian Court of First Instance made an order prohibiting the applicants from leaving Romania. The first applicant appealed against the decision and requested a stay of execution. In September 2006 the Youth and Family Court set aside the decision of August 2006, after noting that the Court of First Instance did not have jurisdiction to examine the case. The case was transferred to a different Court of First Instance. The applicants left again for the United States on 23 September 2006. R.R. brought an action before the courts seeking custody of the child and in March 2008 the Court of First Instance transferred custody to him. An appeal by the first applicant against that judgment is currently pending.
Law – Article 2 of Protocol No. 4: (a) The proceedings under the Hague Convention – The court judgment of 5 May 2005 had confined itself to declaring that the second applicant’s removal to the United States and her retention there had been wrongful within the meaning of Article 3 of the Hague Convention. It was therefore clear that the Romanian authorities had not taken a decision ordering the return of the applicants to Romania or prohibiting them from leaving the country. Whilst it was true that proceedings for the child’s return as provided for by the Hague Convention had been commenced by R.R. in the United States, those proceedings had ended on 27 May 2005 with a decision noting that the first applicant had agreed to return to Romania with her daughter. The first applicant herself acknowledged that she had returned to Romania of her own free will. The Court could not speculate as to the possible outcome of the proceedings in the United States had the child’s mother not agreed to return to Romania. Hence, the County Court’s decision could not be regarded as interference with the applicants’ right to freedom of movement within the meaning of Article 2 of Protocol No. 4.
Conclusion: inadmissible (manifestly ill-founded).
(b) The urgent application concerning the prohibition on leaving the country – The first applicant and her daughter had been prevented from leaving the country for about a month between August and September 2006. However, the Court had to examine whether the applicants could be regarded as “victims” in the specific circumstances of the case. In its decision of September 2006 the Youth and Family Court had set aside the order prohibiting the applicants from leaving the country after finding that it was unlawful because the court had not had jurisdiction. In so doing it had recognised at least in substance the violation of the applicants’ right to freedom of movement. The court’s decision constituted appropriate redress for the first applicant and her daughter, on the basis that the finding of a violation constituted in itself sufficient just satisfaction. Moreover, given the promptness with which the impugned decision had been set aside (within one month approximately), the decision had been sufficient to fully remedy the complaint in question. In addition, the first applicant and her daughter had been able to leave Romania at the end of September 2006, when they travelled to the United States. Accordingly, they could no longer claim to be victims of any violation of Article 2 of Protocol No. 4 for the purposes of Article 34 of the Convention.
Conclusion: inadmissible (incompatible ratione personae).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
Click here for the Case-Law Information Notes
Full & Egal Universal Law Academy