FOURTH SECTION
DECISION
Application no. 79482/17
Florian-Dinu TOIA
against Romania
The European Court of Human Rights (Fourth Section), sitting on 28 March 2023 as a Committee composed of:
Faris Vehabović, President,
Branko Lubarda,
Ana Maria Guerra Martins, judges,
and Valentin Nicolescu, Acting Deputy Section Registrar,
Having regard to:
the application (no. 79482/17) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 8 November 2017 by a Romanian national, Mr Florian-Dinu Toia, who was born in 1974 and lives in Oradea (“the applicant”), and who was represented by Mr A. Stancu, a lawyer practising in Oradea;
the decision to give notice of the complaint concerning contact rights between the applicant and his underage daughter to the Romanian Government (“the Government”), represented by their Agent, Ms O.F. Ezer, of the Ministry of Foreign Affairs, and to declare inadmissible the remainder of the application;
the decision to give priority to the application (Rule 41 of the Rules of Court);
the parties’ observations;
the decision to reject the Government’s objection to examination of the application by a Committee;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The application concerns non-enforcement of court decisions setting the contact schedule between the applicant and his daughter (Y), born in 2006, who remained with her mother (X) following the parents’ separation in 2007.
2. On 20 September 2010 the Bihor County Court granted the applicant the right to take Y with him every other weekend, from Friday at 4 p.m. to Sunday at 6 p.m. and also for the whole month of July and five days around both Christmas and Easter. That contact schedule was upheld, with slight modifications, by the Oradea Court of Appeal in a final decision of 15 December 2010.
3. On 4 April 2011 the applicant started enforcement proceedings through the offices of a bailiff. On several occasions he went to X’s home, accompanied by a bailiff and sometimes also by the police. He was unable to see Y, either because X and Y were not at home or because Y refused to see him (for the latter, see the bailiff’s report of 5 June 2011).
4. The bailiff also seized X’s accounts in order to obtain payment of the enforcement costs.
5. On 8 October 2012 the applicant sought the assistance of the Bihor Directorate General for Social Welfare and Child Protection (“the child protection authority”) to see his child. In reply, on 13 February 2013, the child protection authority invited both parents separately to attend counselling to help them understand and respond to their child’s emotional needs. The applicant attended the sessions, but X refused to do the same.
6. It appears that on 27 November 2014 the bailiff ended the enforcement proceedings.
7. On 28 November 2011, 1 February 2013 and 26 January 2015 the applicant lodged criminal complaints against X with the prosecutor’s office attached to the Oradea District Court. On each occasion, the prosecutor eventually decided not to prosecute her as the evidence showed that X had not opposed contact and that enforcement had failed because Y refused to see the applicant (decisions of 4 May 2012, 1 April 2014 and 3 November 2015). The District Court upheld the prosecutor’s decisions.
8. The child protection authority assessed Y on two occasions, at the prosecutor’s request, and found that she had been affected by her father’s absence and his “mistakes” in their interactions and by the mother’s negative attitude towards those interactions (reports of 19 April 2012 and 29 June 2015). It advised the parents to leave the child out of their ongoing conflict and to seek counselling for themselves. It also advised X to stop negatively influencing Y and to create an appropriate emotional setting for the applicant’s visits.
9. A new criminal complaint lodged by the applicant against X was examined by the Oradea District Court (decision of 31 January 2017) and Oradea Court of Appeal (final decision of 16 May 2017). The courts found, based on the evidence adduced, that X had not opposed contact between the applicant and Y or manipulated the child against the applicant in any way, and that the lack of contact had been caused exclusively by Y’s refusal to see her father. In addition, the Oradea Court of Appeal invited the applicant to seek counselling, as a necessary first step towards reuniting with Y.
10. The applicant complained, under Article 8 of the Convention, that he was unable to see Y despite the court order of 15 December 2010 in his favour.
THE COURT’S ASSESSMENT
11. The relevant principles regarding the State’s positive obligations under Article 8 of the Convention in cases concerning the enforcement of contact rights are summarised in the case of K.B. and Others v. Croatia (no. 36216/13, §§ 142-44, 14 March 2017). The Court’s task consists of examining whether the domestic authorities took all necessary steps that could reasonably be demanded in the specific circumstances to facilitate contact between the applicant and his child.
12. It notes that the applicant was unable to maintain contact with Y, mainly because she refused to see him and was affected by the parents’ attitude (see paragraphs 3 and 8 above).
13. As for the authorities’ actions, the Court observes that the domestic courts and the prosecutor’s office examined the applicant’s allegations of hindrance of his contact rights (see paragraphs 7 and 9 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.
14. The bailiff also assisted the applicant and availed himself of the system put at his disposal by domestic law (for an overview of the applicable law before 15 February 2013, see Boştină v. Romania, no. 612/13, §§ 41‑44, 22 March 2016, with further references, and for the applicable law since 15 February 2013, see Niţă v. Romania [Committee], no. 30305/16, §§ 27‑30, 3 July 2018): he accompanied the applicant to X’s home, either alone or with the assistance of police, and seized X’s accounts (see paragraphs 3-4 above). The applicant, for his part, did not complain about the bailiff’s performance, in particular about the activity which took place after February 2013 when the law specified in detail the authorities’ obligations in terms of enforcement of decisions concerning parental rights, or of the fact that the bailiff ended the enforcement proceedings in 2014 (see paragraph 6 above). In this regards, for instance, he did not complain, once this option became available, in February 2013, that the bailiff had failed to inform the child protection authority of Y’s manifest refusal to see the applicant, information which would have allowed that authority to seek mandatory counselling for Y, as envisaged by the domestic law.
15. The representatives of the child protection authorities offered the applicant support and counselling (see paragraph 5 above), thus fulfilling their role of facilitating contact and negotiating solutions with a view to promoting the child’s best interests. Moreover, the authority’s counsellors assessed the family and advised the parents to seek counselling (see paragraph 8 above). The child protection authority thus acted efficiently and within the scope of its power.
16. In their responses to the applicant’s requests for assistance, the authorities took into account the situation as a whole, including the fact that the child refused to see her father, but without neglecting the important role played by the parents’ own inability to manage the situation properly (see paragraphs 3, 5, 7 and 8 above). Moreover, the authorities acted diligently and no particular delays can be observed in their activity in the present case (see K.B. and Others v. Croatia, cited above, § 142 in fine).
17. Lastly, the Court observes that the applicant did not take any steps after 2014 towards rebuilding his relationship with Y (see paragraphs 6 and 14 in fine, above). It seems that he did not ask for the enforcement to continue or to restart after the bailiff ended the proceedings on 27 November 2014. Moreover, there is no indication that he accepted the Court of Appeal’s recommendation to undergo counselling (see paragraph 9 above, in fine). These options provided for by the domestic system would have helped him reconcile with Y and for that reason the applicant should have used them diligently.
18. The Court reiterates 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 references), and 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, given the specific circumstances of the case.
19. Consequently, 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.
20. Accordingly, 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 20 April 2023.
Valentin Nicolescu Faris Vehabović
Acting Deputy Registrar President