FOURTH SECTION
DECISION
Application no. 41861/19
Florin IONEL
against Romania
The European Court of Human Rights (Fourth Section), sitting on 1 June 2021 as a Committee composed of:
Gabriele Kucsko-Stadlmayer, President,
Iulia Antoanella Motoc,
Pere Pastor Vilanova, judges,
and Ilse Freiwirth, Deputy Section Registrar,
Having regard to the above application lodged on 30 July 2019,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Florin Ionel, is a Romanian national, who was born in 1975 and lives in Bucharest. He was represented before the Court by Mr I. Dumitru, a lawyer practising in Bucharest.
2. The Romanian Government (“the Government”) were represented by their Agent, Ms O. F. Ezer, of the Ministry of Foreign Affairs.The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.Background of the case
4. The applicant and X were married and had a son together, Y, born in 2007. When the parents separated in 2008, Y remained with his mother and the applicant’s contact with his son became sporadic.
5. In a decision of 14 March 2011 of the Bucharest County Court, final by decision of 24 October 2011 of the Bucharest Court of Appeal, the couple obtained a divorce and Y’s residence was set with his mother. The applicant was allowed to take his child into his home mainly every other weekend and for two weeks during the summer holidays.
6. On 24 April 2012 the applicant lodged an application with the Court (no. 26686/12), whereby he complained about the outcome of the divorce and custody proceedings above, and about the alleged difficulties in exercising his contact rights. On 30 August 2012 the Court, sitting in a single-judge formation, declared that application inadmissible. That decision was final.New contact arrangements
7. On 28 September 2016 the applicant lodged a request for extended contact rights, arguing that X was hindering his contact with his son. X opposed the request and lodged counterclaims on that issue. In a decision of 4 July 2017 the Bucharest District Court reduced the contact programme to three Saturdays per month. At the same time, the applicant was ordered to inform X of Y’s whereabouts and their programme during their contact time together, and X was ordered to refuse handing over the child to the applicant if she felt that those visits were detrimental to the child. The court found that the applicant’s contact with Y had not been hindered in any manner and that it was the applicant himself who had shown little interest in maintaining that contact and had been neglectful during the child’s visits to his home. The court also interviewed Y who stated that he wished he could see his father more often, but that during his visits to his father place, the latter was not present and Y spent the time with the father’s new family (spouse and children). This ruling was upheld by a final decision of 18 October 2018 of the Bucharest County Court.Enforcement of the contact arrangements
8. The applicant sought the assistance of a bailiff’s office for the enforcement of the contact programmes granted by the courts in his favour (see paragraphs 5 and 7 above). On each occasion the bailiff sought a court’s authorisation immediately and started the enforcement.
9. The applicant submitted several bailiff’s reports attesting to numerous visits to X’s home (reports of 16 December 2016, 6 and 20 January, 3 and 17 February, 3 and 17 March, 4 April, 2 and 16 June and 1 July 2017). On those occasions, the bailiff was accompanied by the applicant, by police, and sometimes also by representatives of the child‑protection authority. Most of those visits remained unsuccessful because X and the child were not at home.
10. On 18 November 2016 the bailiff lodged an application against X with the Bucharest District Court, on behalf of the applicant, seeking payment of a penalty for the delays in the enforcement of the decision of 14 March 2011 (see paragraph 5 above). The application was eventually dismissed on 23 August 2017 by the Bucharest County Court, on the grounds that the enforcement had become objectively impossible as the contact arrangements had been modified by the decision of 4 July 2017 (see paragraph 7 above).
11. On 25 January 2019 the applicant asked the bailiff to end the enforcement proceedings which the latter did, by a decision of 29 January 2019.Criminal complaints
12. The applicant lodged several criminal complaints against X whom he accused of opposing his relationship with his son. He appended the bailiff reports concerning the failed attempts to contact his son.
13. In addition, he also complained of an incident which had taken place on 13 July 2016, during the applicant’s summer contact schedule. While Y was spending time with his paternal grandmother and cousin, X had come to the grandmother’s home, accompanied by the police and representatives of the child‑protection authority, and had taken Y away without the applicant’s knowledge or consent.
14. The prosecutor’s office attached to the Bucharest District Court examined and eventually dismissed the applicant’s complaints in a decision of 31 July 2018. Based on the evidence in the file, including witness statements, as well as statements made by X and Y, the prosecutor observed that X’s absence from home with the child had been occasional, and had often been justified and communicated in advance to the applicant. The prosecutor also found that the applicant had repeatedly gone with the bailiff to a wrong address although he had been fully aware of X and Y’s real whereabouts. As for the remaining absences, on each occasion, the prosecutor concluded that the acts committed by X, while they had prevented the applicant from seeing his child, had not been sufficiently severe to constitute a criminal offence.
15. On 19 February 2019 the Bucharest District Court dismissed by means of a final decision the objection lodged by the applicant against the prosecutor’s decision of 31 July 2018. The court established that in order to constitute a criminal offence, the opposition to the enforcement had to be repeated and systematic, whereas the situation under investigation consisted of mere isolated incidents.
16. In addition, in the decision rendered on 19 February 2019, the District Court also addressed the incident of 13 July 2016 (see paragraph 10 above). It observed that, although in accordance with the terms of the contact schedule Y and the applicant were supposed to spend the contact time together, the evidence in the file showed that in July 2016 Y had been left in the paternal grandmother’s house where the applicant only came to see him occasionally, during the day, as at that time he was living elsewhere with his new family. Consequently, the court concluded that it had been the applicant who had breached the contact order, an act which entitled X to take the child home, with the authorities’ help.Relevant domestic law
17. The relevant provisions of the Code of Civil Procedure concerning the procedure for the enforcement of court orders concerning minors is set out in Niţă v. Romania ([Committee], no. 30305/16, §§ 27-30, 3 July 2018).
COMPLAINT
18. The applicant complained under Article 8 of the Convention about the alleged lack of appropriate support from the authorities in assisting him during the enforcement of the court orders setting a contact schedule in his favour both in terms of offering him assistance and taking action to prevent the mother from alienating the child.
THE LAW
19. The applicant complained that that the authorities had not complied with their obligation to assist him in his attempts to maintain contact with his child, in violation of 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.”The parties’ submissions
20. The Government argued that the domestic authorities had examined the matter thoroughly, had based all their decisions on the child’s best interests and had offered adequate and timely support to the applicant.
21. The applicant contended that the support he had received from the authorities had been insufficient. He pointed out that the authorities had never taken efficient measures against X such as, for instance, criminal sanctions for non-compliance with a contact order. Moreover, he argued that the Government had failed to provide an explanation for the gross misconduct and inaction of the authorities during the enforcement of the contact orders, in particular that of 4 July 2017 (see paragraph 7 above).The Court’s assessment
22. The relevant principles regarding interference with the right to respect for family life and the State’s positive obligations under Article 8 of the Convention in cases concerning the enforcement of contact rights are summarised in M. and M. v. Croatia (no. 10161/13, §§ 176‑81, ECHR 2015 (extracts)), and K.B. and Others v. Croatia (no. 36216/13, §§ 142‑44, 14 March 2017).
23. In the present case, the Court notes at the outset that in so far as the application may be understood as referring to the period before 30 August 2012, this part of the application is substantially the same as a matter that has already been examined by the Court (see paragraph 6 above) and the applicant did not submit any relevant new information in relation to it (see Kezer and Others v. Turkey (dec.), no. 58058/00, 5 October 2004, and Harkins v. the United Kingdom (dec.) [GC], no. 71537/14, §§ 41‑42, 15 June 2017).
24. Consequently, the Court considers that this part of the application is inadmissible in accordance with Article 35 § 2 (b) of the Convention as being substantially the same as their previous application.
25. As for the remainder of the complaint brought before it, the Court observes that the applicant fully used the mechanism provided for by law which was at his disposal to obtain enforcement of the contact schedule. He was assisted by a bailiff who started the enforcement proceedings without delay, accompanied him to see the child and sought coercive measures against X when such measures were deemed appropriate (see paragraphs 8‑10 above). It is also to be noted that, ultimately, the applicant himself asked the bailiff to cease the enforcement (see paragraph 11 above).
26. The applicant’s allegations of hindrance of his contact rights were examined by the authorities, notably courts (see paragraph 7 above) and the prosecutor’s office (see paragraph 14 above). The fact that, after undertaking their examination, those authorities reached conclusions which were unfavourable to the applicant is not indicative of a deficiency in the system, in so far as their examination appears to have been thorough and comprehensive.
27. In this respect, the Court observes that the domestic authorities consistently found that the applicant bore a significant share of responsibility for the non-enforcement of the contact schedule: he had taken little or no interest in his child (see the District Court’s findings, in paragraph 7 above), had been at fault for failing to acknowledge X’s change of address (see the prosecutor’s findings, in paragraph 14 above) and ultimately had failed to spend time with the child even during their contact schedule (see paragraph 16 above).
28. The Court finds that in their response to the requests for assistance made by the applicant, the authorities took into account the situation as a whole, including the fact that, despite the conflict between the parents, the applicant’s contact with his son had not been hindered (see, for instance, paragraph 7 above).
29. Reiterating that the State’s obligation to take positive measures to facilitate contact is not one as to results but one as to means (see Răileanu v. Romania (dec.), no. 67304/12, § 42, 2 June 2015 with further reference), the Court concludes that the national authorities have taken all the steps necessary to facilitate the exercise of contact rights that could reasonably be expected from them in the specific circumstances of the case.
30. For these reasons, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
Accordingly, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 24 June 2021.
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Ilse FreiwirthGabriele Kucsko-Stadlmayer
Deputy RegistrarPresident
Full & Egal Universal Law Academy