Communicated on 30 August 2017
FOURTH SECTION
Application no. 53631/16
Ana PUCHEA
against Romania
lodged on 6 September 2016
STATEMENT OF FACTS
1. The applicant, Ms Ana Puchea, is a Romanian national, who was born in 1970 and lives in Bucharest. She is represented before the Court by Ms D. Pricop, a lawyer practising in Buftea.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant was married to Mr R. and in August 2004 a child was born of their union. In 2005 the applicant left the marital home. R. applied for divorce and custody of their child.
1. Divorce and custody proceedings
4. On 22 February 2010, the Bucharest District Court granted R.’s petition for divorce and awarded him the custody of the child. The court also established a detailed visiting schedule in favour of the applicant.
5. On 22 November 2010 the Bucharest County Court dismissed the appeal lodged by the parties. The decision of 22 February 2010 became final on 21 April 2011 when the Bucharest Court of Appeal dismissed the appeal on points of law lodged by the applicant.
6. On 15 June 2012 R. left Romania with the child and established their permanent residence in Germany where they currently live.
2. Second set of custody proceedings
7. On 18 March 2011 the applicant petitioned the Râmnicu Vâlcea District Court for the custody of the child.
8. On 28 April 2011 the District Court dismissed the claim without examining the merits, on the ground that the situation of the parties concerned could not have changed in the short time since the decision of 21 April 2011 (see paragraph 5 above). On 14 September 2012 the Vâlcea County Court allowed the appeal lodged by the applicant and remitted the case to the Râmnicu Vâlcea District Court for retrial.
9. On 20 November 2014 the Râmnicu Vâlcea District Court granted joint custody to the parents (“autoritate parentală exercitată în comun”) and maintained the child’s permanent residence with her father. The applicant was granted visiting rights to be exercised on Saturdays during
school-weeks in the child’s hometown in Germany, and during school holidays in Romania.
10. On 3 July 2015 the Vâlcea County Court dismissed the appeals lodged by the parties.
11. On 10 March 2016 the decision became final when the Pitești Court of Appeal dismissed the appeals on points of law lodged by the parties.
3. Requests for interim measures (ordonanţă preşedinţială)
12. During the second set of custody proceedings described above, the applicant lodged a series of requests for interim measures.
13. On 5 May 2011 the Râmnicu Vâlcea District Court dismissed an interim request for a new extended visiting schedule, on the ground that the divorce and custody court had just established the schedule after a careful examination of the parties’ situation.
14. On 30 September 2011 the Râmnicu Vâlcea District Court allowed a new interim request lodged by the applicant and established a new, slightly extended visiting schedule in her favour.
15. On 23 March 2012 the Râmnicu Vâlcea District Court dismissed the applicant’s request for an interim injunction to establish the child’s residence with her during the second custody proceedings. It decided that the parents exercise joint custody of their child pending the outcome of the custody proceedings.
4. Attempts to see the child
16. The applicant lodged a request with the bailiff’s office seeking enforcement of the interim decision of 30 September 2011 (see paragraph 14 above). On 14 February 2012 R. lodged an objection (contestație la executare) against the measures adopted by the bailiff. He argued mainly that as he had moved to Germany with his daughter, it was impossible to enforce the decision. On 24 May 2012 the Râmnicu Vâlcea District Court dismissed the objection.
17. It appears that all attempts to meet the child with the help of the bailiff failed.
18. After each failed attempt, the applicant lodged criminal complaints against R., accusing him of refusing to comply with a court order. Fourteen requests, lodged between 20 February 2011 and 21 January 2012, were examined together by Vâlcea County Police Department. On 30 October 2012 the prosecutor’s office attached to Râmnicu Vâlcea District Court decided to end the proceedings. He considered that the acts committed by R. were not sufficiently severe to require criminal prosecution. It gave R. an administrative fine of 1,000 Romanian Lei (RON).
19. On 12 May 2010, as a result of the request lodged by the applicant, the Vâlcea Child Protection Agency (Direcția de Asistență Socială și Protecția Copilului Vâlcea) drew a report in which they suggested to organise the meetings of the applicant and of R. with the child at the premises of the Child Protection Agency under the Agency’s supervision. This was considered to be necessary because of the contradictory declarations of the parents concerning the situation of the child.
20. On 10 January 2011 the Child Protection Agency drew a report in which they noted that the intervention of the police was necessary for organising a meeting between the parents and the child in R.’s home. They also made a psychological assessment of the child and noted that she manifested an attitude of rejection towards the applicant.
21. On 19 July 2012 the Romanian Ministry of Justice dismissed the applicant’s request to initiate on her behalf proceedings for the return of the child under the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980. The Ministry of Justice advised the applicant to start the enforcement proceedings of the decision of 20 November 2014 (see paragraph 9 above) in Germany.
22. On 12 December 2016 the applicant informed the Court that she had just started proceedings in Germany, seeking enforcement of the decision of 20 November 2014.
B. Relevant international law
23. Relevant excerpts of European 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” or “the Regulation”) are contained in E.S. v. Romania and Bulgaria (no. 60281/11, § 46, 19 July 2016).
COMPLAINTS
24. Relying on Article 8 of the Convention, the applicant complains that the national authorities failed to adopt the necessary measures in order to protect her relationship with her daughter.
25. Under Article 6 of the Convention, the applicant complains about the length of the second set of custody proceedings, which lasted from 18 March 2011 to 10 March 2016 for three levels of jurisdiction.
QUESTION TO THE PARTIES
Has there been a violation of the applicant’s right to respect for her family life, contrary to Article 8 of the Convention? In particular, with regard to the principles enunciated by the Court in E.S. v. Romania and Bulgaria (no. 60281/11, §§ 59-60, 19 July 2016), have the proceedings for establishing custody and visiting rights been effective, and notably conducted with sufficient expedition, for the purpose of the protection of the applicant’s rights?
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