THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 42799/05
by Ana SOLOMON
against Romania
The European Court of Human Rights (Third Section), sitting on 27 September 2011 as a Chamber composed of:
Josep Casadevall, President,
Corneliu Bîrsan,
Egbert Myjer,
Ján Šikuta,
Ineta Ziemele,
Nona Tsotsoria,
Kristina Pardalos, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 16 November 2005,
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, Ms Ana Solomon, is a Romanian national who was born in 1965 and lives in Empoli, Italy. She was represented before the Court by Ms Sofia Covaci, a lawyer practising in Băicoi. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 16 January 1999 the applicant married B.A. and on 7 December the same year they had a son, B.C.
4. On 15 August 2000 the applicant left for Italy to try to find work in order to raise money to help her husband pay off the debt he had allegedly accumulated as a result of several unsuccessful business ventures.
5. The applicant did not go back to Romania again until July 2004, after she had obtained an Italian residence permit.
6. On 24 April 2001, when the applicant was already living in Italy, her husband brought divorce and custody proceedings against her.
7. By a judgment of 25 July 2001, the Ploieşti District Court allowed the applicant’s husband’s action for divorce and awarded sole custody of the child to him. Relying, inter alia, on the testimony of the witnesses in support of the applicant’s husband, the social investigation carried out at the minor’s domicile by the Social Services attached to the Ploieşti Local Council, and the applicant’s apparent lack of interest in the proceedings, the court established that as a result of the disagreements between the parties the applicant had left the family home and made no attempt to return or to reconcile with her husband. The parties’ relationship had been seriously damaged and the marriage could not continue as a result of the applicant’s guilt. From the moment of her departure the minor had been left in the sole care of the father and the applicant had inquired about the child’s well-being only over the phone. The father was able to offer the minor appropriate material and living conditions for his development and the child had developed a strong emotional bond with his father.
8. On an unspecified date in 2004, following her visit to Romania, the applicant lodged an appeal against the judgment of 25 July 2001. She argued that she had been unaware of the divorce proceedings brought by her husband against her and that the judgment of 25 July 2001 of the Ploieşti District Court had never been communicated to her.
9. By a judgment of 18 November 2004, the Ploieşti Court of Appeal allowed the applicant’s appeal, quashed the judgment of 25 July 2001 and decided to re-examine the merits of the case. It held that the applicant had been summoned for the divorce proceedings at her home address in Romania, which the husband had provided as the correspondence address for her, even though he had been aware at the time that the applicant was living in Italy and he had known her exact address.
10. On 21 December 2004, as a result of domestic legislation amending the rules on civil procedure, the Ploieşti Court of Appeal declined jurisdiction in respect of re-examining the merits of the applicant’s case, in favour of the Prahova County Court.
11. On 26 January 2005 the divorce and custody proceedings were resumed before the Prahova County Court.
12. On 9 February 2005 the applicant brought a separate set of divorce and custody proceedings against B.A. before the Ploieşti District Court. She asked the court to name her husband as the guilty party in their divorce and to grant the said divorce to her, to allow her to reclaim her maiden name, to grant her custody of the child, and to order B.A. to pay her maintenance. Alternatively, if she was not granted custody of the child, she requested to be granted visiting rights for the first and third weekend of every month, for a week during each of the child’s school holidays and for a month during her own leave from work. Finally, she asked the court to allow the child to travel abroad. The applicant argued that her husband had accumulated a debt of 6,000 euros (EUR) and that, as he had been banned from entering the Schengen area, she had been the only family member able to travel to Italy to seek employment to raise the necessary money to pay the debt. She submitted that the money she had saved in Italy had enabled her to cover her husband’s debt, as well as to save an additional amount of EUR 2,500 owed in connection with an alleged accident that her husband had caused. Lastly, the applicant declared that before leaving Romania she had hired two women to take care of their son.
13. At a hearing on 17 February 2005 before the Prahova County Court the applicant requested leave from the court to be allowed to submit documentary and testimonial evidence. She also asked the court to order both that her husband be heard and that a social investigation be carried out by the Italian authorities at her home in Italy to prove her ability to provide the material and living conditions required for her son’s future development.
14. By an interim judgment (încheiere) delivered on the same day, the Prahova County Court allowed the applicant’s request in part. It adjourned the question of the social investigation to be carried out at the applicant’s home in Italy and ordered her to submit proof, in particular an identity card, that her domicile was in Italy.
15. On 21 April 2005 the two sets of divorce and custody proceedings brought by the applicants against each other were joined before the Prahova County Court.
16. At the hearing of 26 May 2005, the applicant reiterated her request that a social investigation be carried out at her home in Italy via international legal assistance instruments. The court heard the testimony of the two witnesses allowed for the applicant, S.G and S.T., and those of the two witnesses allowed for her husband, I.A. and B.N. The applicant submitted evidence that her own requests to the Italian authorities to carry out a social investigation at her home had been refused in the absence of a court order.
17. By an interim judgment delivered on the same day, the Prahova County Court rejected the applicant’s request for a social investigation as irrelevant to the proceedings at issue and allowed the applicant to submit proof of income, employment and information on her living conditions.
18. The Government informed the Court that at the hearing of 23 June 2005 the County Court had granted the applicant’s request for additional questions to be addressed to her husband. At the same time, the applicant had expressly stated that she did not wish to request that any additional evidence be attached to the file.
19. In her turn, the applicant alleged that at the last hearing before the court her husband had attached to the file, inter alia, a written statement by G.E., the child’s kindergarten teacher (educatoare), describing the child’s development and his desire to live with his father. However, the applicant had not had the opportunity to ask G.E. direct questions before the court.
20. Neither of the parties provided the Court with a copy of the interim judgment delivered by the County Court on 23 June 2005.
21. The Prahova County Court adjourned the delivery of its judgment to 30 June 2005 in order to allow the parties to submit written comments.
22. By the judgment of 30 June 2005 the Prahova County Court granted the parties’ divorce, and held that both spouses were equally responsible for the divorce. The court found that regardless of the reasons which had prompted the applicant to leave Romania, it was clear that the applicant had extended her stay in Italy until she was finally awarded a residence permit. Consequently, the court concluded that the applicant no longer wanted to return to Romania because she had prospects of better living conditions in Italy and the lengthy separation from her family, and in particular her son, did not appear to affect her. Moreover, according to the witness statement of I.A., in 2002 the applicant had prevented her husband and her son from travelling to visit her in Italy on the ground that she had a new family. The court considered that the applicant’s husband was equally responsible for the divorce because he had allowed his wife to leave and had not tried to persuade her to return home even though their son was of a very young age and he needed his mother’s care.
23. The Prahova County Court also awarded full custody of the child to the father. The court held that:
“it was in the minor’s best interest, an interest influenced by a series of factors, such as the child’s young age, his sex, the opportunities offered by the father for his growth and education, the moral standing (conduita morală) of each of the parents, the emotional attachment shown by the father towards the child and by the child towards his father, and other similar factors.”
24. The Prahova County Court further cited I.A.’s testimony that the child had been looked after by his father since 2000 and that during a phone conversation I.A. had overheard between the applicant and her son, the child had refused to talk to her on the ground that he did not know her. Moreover, according to B.N.’s testimony the applicant had asked her husband over the phone to travel to Italy alone without their son because she did not want to jeopardise her job by having them both there at the same time. Further, according to the statement of B.N. the child had been waking up at night frightened at the prospect of leaving his father. In this context the court held that the applicant was a stranger to the child and she could not be considered as his mother on account of the fact that she had left him when he was eight months old. Since then she had had contact with him only over the phone and had not seen him again until 2004. The child had had an emotional shock when the applicant had been introduced to him as his mother. Furthermore, the court took into account G.E.’s written statement attached to the file, according to which the child was well developed for his age. According to that statement, the child had publicly expressed in his class at the kindergarten his unwillingness to leave his father and his desire to live with him and his stepmother. The Prahova County Court also held, according to the social investigation carried out at the father’s home, that the father had been taking care of the child since the latter was eight months old and the child was well cared for. The social investigation also showed that the child was well developed for his age, that he was attached to his father and stepmother and that the applicant inquired about him only twice a year.
25. The court rejected the statements made by the two witnesses on behalf of the applicant as being indirect and subjective, given that they were members of the applicant’s family.
26. The court, however, allowed in part the applicant’s request for visiting rights and held that she could visit her son the first and third weekend of each month, on Saturday and Sunday from 10 a.m. to 2 p.m., at her former husband’s home. It dismissed the remainder of the applicant’s request concerning visiting rights on the ground that the child considered her a stranger and that to force the child to spend more time with a person he was afraid of might cause him to suffer psychological trauma which would affect his future development. Moreover, the child was about to start school and it would be stressful for him and against his best interests to be forced to follow the busy schedule proposed by the applicant.
27. Finally, the court dismissed the applicant’s request to allow the child to travel to Italy with her on account of his young age, the applicant’s lack of interest in her son and the risk of her not allowing him to return home.
28. On 11 August 2005 the applicant lodged an appeal (recurs) against the judgment of 30 June 2005. She requested the Court of Appeal to quash the judgment of the Prahova County Court and to refer the case back to that court for the obtaining of additional evidence (administrată), in particular:
a) a social investigation at her home in Italy that would allow the domestic courts to assess her economic and social suitability for bringing up her son. The applicant alleged that by taking into account only the social investigation carried out at her husband’s home when awarding custody of her son, the national courts had not compared the conditions offered by both the mother and the father of the child and could therefore not establish correctly what was in the best interests of the child. She also argued that the social investigation that had been performed at her former husband’s home had been subjective and based solely on his own statements. Moreover, she argued that according to domestic law the absence from the file of a social investigation by the Social Services carried out at her home rendered the court’s judgment unlawful in so far as the award of the child’s custody was concerned;
b) a psychological report or a report by a qualified social worker that would assess the possibility of building a normal parent-child relationship between the applicant and her son;
c) the hearing in person of the witness G. E., the child’s kindergarten teacher. The applicant argued that the Prahova County Court had attributed great importance to G. E.’s undated written statement attached to the file at the final hearing. She argued that she had not had the opportunity to ask G.E. direct questions before the court, which had prevented her from defending herself against the allegations made against her. Furthermore, the Prahova County Court had not referred to the statements of all the witnesses proposed by her husband but had only taken into account those that were favourable to him;
d) a list of her son’s phone call conversations in order to verify the truthfulness of B.N.’s statement that she had been present at her former husband’s home and had overheard a phone conversation between the applicant and her son where he seemed frightened of her and did not recognise her.
29. The applicant also emphasised that it could be seen from the letters she had exchanged with her husband during the time she lived in Italy, letters to which the domestic court did not attach any evidentiary value, that her husband had agreed to her seeking employment in Italy and that he had insisted on her continuing to work there. She further emphasised that her husband had been hiding from the child the fact that she, and not his father’s present wife, was his mother while at the same time continuing to take advantage of the money which she sent him. In addition, her husband had been detained for more than a year for an offence of fraud, and during that time the child had been looked after by strangers.
30. On 29 September 2005 the applicant presented orally the appeal points submitted in writing before the domestic court. She mainly argued that a social investigation at her home in Italy was important for the court to be able to assess the situation objectively. Moreover, she considered that the court should also take into account the testimony of the applicant’s witnesses and that her husband should be held to be the only guilty party for the divorce, on account of his behaviour towards the applicant and his family. Furthermore, she addressed the issue of the child’s custody and of the personal ties between the child and herself. The latter could not improve, in her opinion, if the meetings between mother and son were held at her former husband’s home. Finally, she asked the court to allow the appeal as submitted before the court.
31. By a final judgment delivered on the same day, 29 September 2005, the Ploiesti Court of Appeal partly allowed the applicant’s appeal and declared that both parties were equally guilty for the divorce on the ground that the parties had jointly taken the decision for the applicant to travel to Italy when the child was very young. Moreover, the applicant’s husband had been unfaithful to the applicant and misinformed her about their family’s situation.
32. In relation to the applicant’s complaint concerning the need for a social investigation at her home in Italy, the Ploieşti Court of Appeal dismissed her appeal and held that:
“This part of the complaint is manifestly ill-founded. A social investigation must be performed at the domicile of the parties concerned. In the case at issue it appears from the documents that the petitioner’s domicile in Romania is that of her lawyer (thus the petitioner does not have her own domicile and a social inquiry could not be performed), nor does she have a domicile in Italy, which renders a social inquiry impossible. It appears from the documents that the address in Italy provided by the petitioner is that of M.G., by whom the petitioner is employed and for whom she performs household duties. The applicant also lives there, but this cannot be considered a domicile within the meaning of the law. It follows that the county court correctly refused to order a social investigation at the petitioner’s domicile in Italy on the ground that, as has been shown, the petitioner does not have her own domicile.”
33. The Ploieşti Court of Appeal also dismissed her appeal concerning the custody proceedings, holding that:
“the custody of the child was correctly awarded to the father, because the child has been brought up by his father and it is clear that they have developed an emotional bond, a factor taken into account by the lower courts when examining the custody issue. Since he has been looked after by his father up to the age of five, it is in the minor’s best interest to continue living with him.”
34. In respect of all the other points formulated by the applicant in her appeal, the Court of Appeal held that:
“It is clear that it has been proved in the present case that the applicant’s husband can ensure the appropriate material and moral conditions required for the child’s normal development. The applicant’s affection for her son is unquestionable, but owing to the factual situation mentioned above (that is, that the child has grown up only with his father) the applicant cannot be awarded custody of the child because the main factor to be taken into account in this case, which is the child’s attachment to his mother, is lacking as a result of her departure to Italy when the child was eight months old and her failure to return.”
35. Lastly, the Ploieşti Court of Appeal dismissed the applicant’s appeal in respect of her visiting rights decided by the County Court on the grounds that she did not have a domicile in Romania and that the child could not be taken away from his father because the child did not know his mother and at his young age meeting her in a strange place without his father being present could prove traumatic for him.
36. In a letter to the Court received on 7 July 2008 the applicant informed the Court that in 2007 she had travelled to Romania three times, in February, August and December. Each time she had seen her son once for about two hours in the presence of her former husband and his second wife. During the entire time they had spent together, the child had been nervous and shy. She had allegedly informed the Child Protection Services about the situation; however, the investigation carried out by the authorities showed that there was no cause for concern. Lastly, the applicant stated that she had not opened a new set of proceedings seeking to be awarded the custody of the child or to have her access rights extended.
B. Relevant domestic law
37. The relevant legal provisions, in particular the provisions of the Romanian Family Code in force at the time, are set forth in the judgments of Nistor v. Romania (no. 14565/05, § 50, 2 November 2010), and R.R. v. Romania (no. 1), (no. 1188/05, § 109, 10 November 2009).
COMPLAINTS
38. The applicant complained that the custody proceedings she was a party to had been unfair and in breach of the equality of arms principle and her interests as a parent, since the domestic courts had refused to order a social investigation to be carried out at her home in Italy and they had also refused, without providing reasons, to hear the witnesses proposed by her, to order a psychological expert report, and to obtain as evidence a list of the phone conversations between her and her son. Consequently, the fact that the custody of her minor child had been awarded to her former husband breached her rights guaranteed by Articles 6 and 8 of the Convention.
THE LAW
A. Complaint under Article 8 of the Convention
39. The applicant complained under Article 8 of the Convention about unjustified interference with her right to family life on account of being placed in a disadvantaged position vis-à-vis her former husband and losing the custody of her son as a result of, on the one hand, the domestic courts’ refusal to order a social investigation to be carried out at her home in Italy and, on the other, their unreasoned refusal to adduce the evidence requested by her.
40. The relevant Convention provision reads as follows:
Article 8
“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.”
(a) Submissions of the parties
(i) The Government
41. The Government submitted that nothing in the file suggested that the domestic courts had acted against the best interests of the child in awarding the custody of the minor to his father. They also considered that there had been no interference with the applicant’s right to family life. They argued that no domestic legal provision guaranteed the right of a parent to be awarded custody of a child in the case of the parents’ divorce. In this connection, they submitted that the family ties between the mother and child had been cut when the applicant left for Italy to find work and did not see her child for years. Moreover, the applicant herself had admitted to having very weak ties with the minor, since the child did not know that she was his mother until 2004. Consequently, the domestic courts’ finding that the child lacked an emotional attachment to his mother and the award of custody to the father on that ground was not unjustified or contrary to the best interests of the child.
42. They also argued that the applicant had been granted visiting rights in order for her to be able to develop normal family relations with her son. Moreover, they underlined that custody rights and granted visiting rights could be subject to change in time at the request of the interested party, taking into consideration the particular circumstances of each case and the development of the relationship between the parent and the child. The applicant, however, had not pursued such proceedings, although there was no evidence that potential proceedings brought by the applicant would have been dismissed by the domestic courts.
(ii) The applicant
43. The applicant argued that the domestic courts had placed her at a disadvantage vis-à-vis her husband by dismissing her request for a social investigation at her home in Italy and that further evidence needed to be obtained. She submitted that the decision concerning her son’s custody had been delivered in abstracto on the ground that the domestic courts had not been able to examine the actual connection between the conditions offered by both parents and the child’s best interests in the absence of a social investigation at her home and of the additional evidence requested by her.
44. Moreover, she submitted that the domestic courts had curtailed her access rights unnecessarily. The fact that she was allowed to see her son only in the presence of his father impeded her efforts to develop a normal relationship with her child.
(b) The Court’s assessment
45. The Court reiterates that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life, even if the relationship between the parents has broken down, and domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 of the Convention (see, amongst other authorities, Johansen v. Norway, 7 August 1996, § 52, Reports of Judgments and Decisions 1996-III, and Bronda v. Italy, 9 June 1998, § 51, Reports
1998-IV).
46. The Court notes that the applicant lived with her son for eight months, from his birth in December 1999 to August 2000, when she decided to travel to Italy to seek employment. After her departure she continued to have joint custody of her son together with her husband and maintained contact with him over the phone. She enquired about his well-being and from 2004 she travelled to Romania on several occasions to try to obtain exclusive custody rights.
47. In these circumstances, the Court considers that the impugned measure, namely, the Romanian courts’ decision awarding exclusive parental custody to the child’s father, amounted to an interference with the applicant’s right to respect for her family life as guaranteed by paragraph 1 of Article 8 of the Convention.
48. Such interference constitutes a violation of Article 8 unless it is “in accordance with the law”, pursues an aim or aims that are legitimate under paragraph 2 of that provision and can be regarded as “necessary in a democratic society”.
49. The Court notes that the decision of the domestic courts had a basis in national law, namely, Article 42 of the Family Code as in force at the relevant time.
50. In the Court’s view the court decisions of which the applicant complained were clearly aimed at protecting the “rights and freedoms” of the child. Accordingly, they pursued legitimate aims within the meaning of paragraph 2 of Article 8.
51. In determining whether the refusal to grant custody was “necessary in a democratic society” the Court has to consider whether, in the light of the case as a whole, the reasons adduced to justify this measure were relevant and sufficient for the purposes of paragraph 2 of Article 8. Undoubtedly, consideration of what is in the best interests of the child is of crucial importance in every case of this kind. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. It follows that the Court’s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding access issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their margin of appreciation (see, inter alia, Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299-A; Elsholz v. Germany [GC], no. 25735/94, § 48, ECHR 2000-VIII; Sommerfeld v. Germany [GC], no. 31871/96, § 62, ECHR 2003-VIII).
52. The Court further observes that whilst Article 8 contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8. The Court cannot satisfactorily assess whether the reasons adduced by the national courts to justify these measures were “sufficient” for the purposes of Article 8 § 2 without at the same time determining whether the parent was involved in the decision-making process, seen as a whole, to a degree sufficient to provide him with the requisite protection of his interests (see, inter alia, T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 72, ECHR 2001-V; Hoppe v. Germany, no. 28422/95, § 52, 5 December 2002; and Sommerfeld, cited above, § 66).
53. The Court further observes that a fair balance must be struck between the interests of the child and those of the parent (see, for example, the Olsson v. Sweden (no. 2), 27 November 1992, § 90, Series A no. 250), and that in doing so particular importance must be attached to the best interests of the child, which, depending on their nature and seriousness, may override those of the parent. In particular, the parent cannot be entitled under Article 8 of the Convention to have such measures taken as would harm the child’s health and development (see Johansen v. Norway, no. 17383/90, 7 August 1996, § 78, Reports 1996-III; Maumousseau and Washington v. France, no. 39388/05, § 62, 6 December 2007 and Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 134, 6 July 2010).
54. In reviewing whether the domestic courts, in the exercise of their margin of appreciation, based their decisions on relevant grounds the Court observes that according to the Romanian courts, awarding custody of the child to the mother and separating him from his father would not be beneficial for the minor. The domestic courts took into account the child’s tender age, the fact that he had been looked after by his father since he was eight months old and the strong emotional bond between the child and his father, which, more importantly, the child did not have with his mother. They also considered that the award of a broader right of access to the applicant would unsettle her son in his daily routine and might destabilise him in terms of his future development. Stability was important for the child’s welfare, because forcing him to act against his will in the absence of his father might prove traumatic for his future psychological development. In view of this, the Court is satisfied that the domestic courts’ decisions can be taken to have been made in the child’s best interests, which, because of their serious nature, must override the applicant’s interests. Therefore, the national courts adduced relevant and sufficient reasons to justify their decisions refusing to grant the applicant custody of her son and extended access rights.
55. In assessing whether those reasons were also sufficient for the purposes of Article 8 § 2, the Court will notably have to determine whether the decision-making process, seen as a whole, provided the applicant with the requisite protection of her interests.
56. The applicant alleged that she had been placed at a disadvantage vis-à-vis her husband as a result of, on the one hand, the domestic courts’ refusal to order a social investigation to be carried out at her home in Italy and, on the other, their unreasoned refusal to obtain the evidence requested by her. In this regard, the Court reiterates that Article 6 of the Convention does not explicitly guarantee the right to have witnesses called or other evidence admitted by a court in civil proceedings. Nevertheless, any restriction imposed on the right of a party to civil proceedings to call witnesses or to adduce other evidence in support of his case must be consistent with the requirements of a fair trial within the meaning of paragraph 1 of that Article, including the principle of equality of arms. As regards litigation involving opposing private interests, equality of arms implies that each party must be afforded a reasonable opportunity to present his case - including his evidence - under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (see Dombo Beheer v. the Netherlands, 27 October 1993, §§ 31-33, Series A no. 274).
57. The Court observes in respect of the present case that both in the proceedings before the County Court and before the Court of Appeal the applicant was represented by a lawyer and was placed in a position enabling her to put forward all her arguments and to present evidence in favour of obtaining custody of the child. She had the opportunity to present both written and oral submissions and documentary evidence, and to call witnesses and cross-examine witnesses against her.
58. It is true that no social investigation was carried out at her home in Italy, contrary to the wishes expressed by the applicant before both the County Court and the Court of Appeal, on the ground that the applicant did not have a home in that country. However the applicant had the opportunity to and did submit evidence in respect of her living conditions, her income and her employment status which was taken into account by the domestic courts when delivering their judgment. Moreover, notwithstanding the restrictive interpretation given by the Court of Appeal to the concept of home, the material conditions offered by the parents do not appear to have been the leading factor in the domestic courts’ decision to award custody to the child’s father.
59. At the same time, the Court observes that there is no evidence in the file that the applicant raised at any stage of the proceedings before the County Court the issue of a psychological expert report or of the list of her son’s mobile phone conversations. Moreover, although it appears that she did not have the opportunity to question G.E. directly before the County Court, she was allowed to submit written comments in respect of G.E.’s statement. Furthermore, G.E.’s statement was only one of a number of elements on the basis of which the County Court assessed the case and the emotional connection between the applicant and her son.
60. In respect of the applicant’s allegation that the Court of Appeal failed to provide reasons for dismissing the applicant’s request for further evidence to be obtained, the Court observes that while courts are obliged to give reasons for their decisions, Article 6 § 1 cannot be understood as requiring a detailed answer to every argument (see Ruiz Torija v. Spain, 9 December 1994, § 29, Series A no. 303-A; Jahnke and Lenoble v. France (dec.), no. 40490/98, ECHR 2000-IX; and Perez v. France [GC], no. 47287/99, § 80, ECHR 2004-I). The extent to which this duty to give reasons applies may vary according to the nature of the decision and can only be determined in the light of the circumstances of the case (see Ruiz Torija, cited above, § 29).
61. In the present case, the Court notes that the Court of Appeal touched on all the appeal points raised by the applicant (see paragraph 34 above) and dismissed them by taking into account the factual situation of the parties and the best interests of the child.
62. In this connection, the Court reiterates that it is the domestic courts which are best placed for assessing the relevance of evidence to the issues in a case (see, amongst many authorities, Vidal v. Belgium, 22 April 1992, § 32, Series A no. 235-B; Edwards v. the United Kingdom, 16 December 1992, § 34, Series A no. 247-B). In the circumstances of the present case, the Court is satisfied that the domestic courts examined the applicant’s request to have additional evidence adduced and gave reasons for their refusal, which, in the Court’s view, were not tainted by arbitrariness. For these reasons, the refusal to obtain the evidence proposed by the applicant did not amount to a disproportionate restriction on her ability to present arguments in support of her case in the proceedings. The Court therefore finds that in the circumstances of the present case the national courts can altogether be taken to have reached their decisions on a sufficient evidential basis.
63. Lastly, the Court notes that the applicant stated in her letter of 7 October 2007, without providing any objective reasons, that she had been unable to exercise her rights guaranteed by Section 44 of the Romanian Family Code to bring a new set of proceedings against her ex-husband seeking the re-examination of her custody and access rights.
64. Having regard to the foregoing and to the respondent State’s margin of appreciation, the Court is satisfied that the Romanian courts’ procedural approach was reasonable in the circumstances and provided sufficient material to reach a reasoned decision on the questions of custody and access in this particular case.
It follows that this part of the application must be dismissed as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
B. Complaint under Article 6 of the Convention
65. The applicant complained under Article 6 of the Convention that the domestic courts’ refusal to order a social investigation to be carried out at her home, as well as their unreasoned refusal to hear the witnesses proposed by her, to order a psychological expert report and to obtain as evidence a list of the phone conversations between her and her son rendered the custody proceedings unfair and breached the equality of arms principle.
66. The relevant Convention provision reads as follows:
Article 6 § 1
“ In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law...”
67. The Government submitted that the custody proceedings had been fair. They argued that the deciding factor in the domestic courts’ decision to award custody of the child to his father was the emotional bond between father and son. Consequently, the absence of a social investigation at the applicant’s home in Italy did not influence the decision. Moreover, the applicant was allowed to submit evidence concerning her income, employment and living conditions and she did so. Furthermore, none of the domestic courts awarded custody of the minor to the applicant’s former husband on account of the moral and material conditions offered by the applicant.
68. In respect of the alleged refusal of the domestic courts to administer the evidence requested by the applicant, the Government also argued that the proceedings had been fair. They submitted that the Prahova County Court had allowed all the evidence requested by the applicant with the exception of the social investigation at her home in Italy. At the hearings of 17 February and 23 June 2005 the County Court had allowed the applicant to submit written and testimonial evidence, heard the applicant’s husband and two witnesses on behalf of the applicant, S.T. and S.G., and allowed the applicant’s request for an additional question to be asked of her husband. Lastly, on 23 June 2005 the applicant expressly stated that she did not wish any further evidence to be attached to the file. However, before the Court of Appeal the applicant asked for the first time for new evidence to be allowed, which included the opinion of a psychologist, the hearing of the witness G.E., and a list of the phone calls received by her son.
69. In the Government’s opinion the applicant’s requests, in particular the request for the psychologist’s opinion and the hearing of the witness G.E., breached the provisions of Section 305 of the Romanian Code of Civil Procedure, which allows only written evidence to be administered before the appeal court. Lastly, at the hearing of 29 September 2005 the applicant, who was represented by a lawyer, failed to reiterate her request during the oral presentation of the appeal points, focusing on other issues.
70. The applicant reiterated her comments submitted in respect of her complaint under Article 8 of the Convention.
71. The Court notes that this complaint is closely linked to the one examined under Article 8 of the Convention. It follows that this part of the application must likewise be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Santiago QuesadaJosep Casadevall
RegistrarPresident
Full & Egal Universal Law Academy