European Court of Human Rights

FOURTH SECTION

CASE OF CZAJKOWSKI v. ROMANIA

(Application no. 37024/20)

JUDGMENT
 

STRASBOURG

5 September 2023

This judgment is final but it may be subject to editorial revision.

In the case of Czajkowski v. Romania,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

 Faris Vehabović, President,
 Iulia Antoanella Motoc,
 Branko Lubarda, judges,
and Crina Kaufman, Acting Deputy Section Registrar,

Having regard to:

the application (no. 37024/20) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") on 17 August 2020 by a Polish national, Mr Dawid Czajkowski, born in 1982 and living in Palma de Mallorca ("the applicant") who was represented by Ms M.R. Prisacariu and Ms A. Trifescu, lawyers practising in Iaşi;

the decision to give notice of the application to the Romanian Government ("the Government"), represented by their Agent, Ms O.F. Ezer, of the Ministry of Foreign Affairs;

the decision to give priority to the application (Rule 41 of the Rules of Court);

the decision of the Polish Government not to exercise their right to intervene in the proceedings (Article 36 § 1 of the Convention);

the parties' observations;

the decision to reject the Government's objection to examination of the application by a Committee;

Having deliberated in private on 27 June 2023,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1. BACKGROUND

1.  The applicant married X, a Romanian national, on 6 November 2007 in the United Kingdom. The couple moved to Spain later, where they lived with their sons Y and Z, born in 2009 and 2012.

2.  On 24 April 2018 X left Spain with the children, aged six and nine at the time, and returned to her parents' home in Romania. The applicant lost contact with the children.

3.  On 7 May 2018 X filed for divorce before the Vaslui District Court ("the District Court"). The action was finally dismissed on appeal on 16 June 2022 by the Vaslui County Court, for lack of jurisdiction of the Romanian courts.

4.  On 27 June 2018 the applicant filed for divorce before the first-�instance judge in Palma de Mallorca. At the date of the most recent communication from the parties, on 31 March 2023, to the Court's knowledge, those proceedings were still pending.

2. PROCEEDINGS FOR A RETURN ORDER

5.  On 30 May 2018 the applicant lodged an application with the Bucharest County Court under the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction ("the Hague Convention"), seeking the return of his children to their habitual residence in Spain.

6.  On 10 October 2018 the County Court established that the children legally resided in Spain; however, finding that the applicant had behaved violently towards his children, it dismissed the request, in accordance with Article 13 (b) of the Hague Convention, on the grounds that their return would place them at grave risk.

7.  In a final decision of 30 January 2019 rendered on an appeal lodged by the applicant the Bucharest Court of Appeal ordered the return of the children to Spain, finding that the allegations of "grave risk" had not been convincingly substantiated. Inter alia, the Court of Appeal held that X had not brought any evidence from the Spanish authorities, either child-protection, police or prosecutor, or any other authority in support of her allegation that the children had been at risk of violence from their father. Moreover, X had not argued that the Spanish authorities were ill-equipped to protect women and children from domestic violence.

3. ENFORCEMENT OF THE RETURN ORDER

8.  On 5 March 2019 the District Court allowed a request lodged by the applicant through a bailiff's office and started the enforcement proceedings pursuant to Article 911 of the Code of Civil Procedure ("the CCP").

1. Involvement of the bailiff and the child protection authority

9.  A meeting between the parties was organised on 14 March 2019 in the bailiff's office. The children refused to leave X and go with the applicant. Consequently, the bailiff informed the Vaslui Directorate General for Social Welfare and Child Protection ("the child protection authority") of this. The latter lodged a request with the District Court to start counselling for the children.

10.  On 19 April 2019 a three-�month counselling programme was ordered, with the parents' participation, pursuant to Article 913 of the CCP. The programme started on 5 July 2019.

11.  On 8 October 2019 the psychologist recommended continued counselling for the parents in order to help them establish cooperation in co-�parenting, and recommended that the applicant's exercise of his parental rights be reinstated only progressively.

12.  Subsequently and at the applicant's request, pursuant to Article 913 of the CCP, the bailiff resumed the enforcement proceedings which had been stayed during the three months of counselling. On 6 December 2019, while at the bailiff's office, the children refused once again to leave with their father.

13.  On 23 December 2019 X lodged a request for the stay of the return order, pointing out that after the issuing of the return order, a court had fixed the children's temporary residence with their mother pending the outcome of the divorce proceedings (see paragraph 19 below). On 22 July 2020 the Vaslui District Court dismissed this objection, finding that the return order could not be stayed because of an interim decision. On 28 April 2021 the Vaslui County Court upheld the above findings.

14.  Meanwhile, on 18 December 2020 the applicant asked the child protection authority for help and counselling for the whole family. On 23 December 2020 he was informed that the child protection authority had visited X's home and that "the mother had been informed and advised about complying with the [legal] requirements concerning a child's right to maintain personal relations and contact with his or her father, relatives and any other person with whom the child had developed attachment. At the same time [X] had been informed that a parent was not allowed to prevent contact between children and the other parent, as only a court could decide on such a course of action."

2. Penalties

15.  On 1 July 2020 the District Court, acting on a request lodged by the applicant in accordance with Article 913 of the CCP, ordered X to pay the latter a daily penalty of 100 Romanian Lei (RON) for the delays in the enforcement of the return order.

16.  As the return order remained unenforced, at the applicant's request the District Court set the sums due to him in delay penalties from 1 July 2020 to 27 September 2022, which amounted to a total of RON 81,800 (EUR 16,500) (decisions of 26 February and 25 June 2021, 22 February and 27 September 2022). X's bank accounts were seized. At the date of the most recent communication from the parties (see paragraph 4 above), to the Court's knowledge, the enforcement was still pending.

3. Criminal complaint

17.  On 26 October 2020, based on a police report indicating that the children refused to leave with their father, the prosecutor's office attached to the Vaslui District Court dismissed as unfounded the criminal complaint lodged by the applicant against X on 6 April 2019 for non-compliance with the return order. The prosecutor's decision was upheld by the District Court in a final decision of 3 June 2021. Both authorities concluded that X had not committed any act capable of engaging her criminal responsibility.

4. INTERIM ORDER FOR CONTACT RIGHTS (ORDONANŢĂ PREŞEDENŢIALĂ)

18.  While the divorce proceedings were pending (see paragraph 2 above), the applicant and X brought separate court proceedings with the Romanian courts seeking interim orders setting the children's residence and contact rights, X on 20 September 2018, and the applicant on 25 March 2019. The proceedings were examined jointly by the Vaslui District Court. While arguing that the Romanian courts lacked jurisdiction to adjudicate the application for divorce given that a court had established that the children's residence was in Spain (see paragraph 7 above), the applicant argued that Article 20 of 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") allowed the Romanian courts to retain jurisdiction concerning his interim request for contact with the children.

19.  On 6 December 2019 the Vaslui District Court granted shared parental authority, fixed the children's residence in their mother, in Romania, and set up a detailed contact schedule in favour of the applicant.

20.  On 3 March 2020 the Vaslui County Court quashed that decision and established that it lacked jurisdiction ratione loci to examine the requests brought by the parents. That ruling was upheld on 30 April 2020 by a final judgment of the Iaşi Court of Appeal which, relying on Article 20 of the Brussels II bis Regulation, found that the parties had failed to show any practical reason preventing them from bringing their respective requests before the Spanish courts.

5. CURRENT SITUATION

21.  At the date of the most recent communication from the parties (see paragraph 4 above), to the Court's knowledge, the return order was still unenforced.

THE COURT'S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

22.  The applicant complained about the non-enforcement of the return order (see paragraphs 26-33 below), as well as about the Romanian courts' refusal to establish interim contact rights between him and his children (see paragraphs 34-�37 below). Although he relied on Articles 6, 8 and 13 of the Convention, the complaint falls under Article 8 (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018; Petrov and X v. Russia, no. 23608/16, §§ 92-�102, 23 October 2018; and Brualla Gómez de la Torre v. Spain, 19 December 1997, § 41, Reports of Judgments and Decisions 1997-VIII).

23.  The general principles concerning the domestic courts' orders and their implementation in respect of custody and/or contacts between parents and their children, including a return order issued under the Hague Convention, and a repeated and consistent refusal of a child to see a parent, have been summarised, inter alia, in Sommerfeld v. Germany [GC] (no. 31871/96, §§ 64-65, ECHR 2003-�VIII (extracts)) with further references, Shaw v. Hungary (no. 6457/09, §§ 63-68, 26 July 2011), Strumia v. Italy (no. 53377/13, §§ 110-�11, 23 June 2016, and I.M. and Others v. Italy, no. 25426/20, §§ 106-08, 10 November 2022).

24.  Thus, Article 8 requires that the domestic authorities should strike a fair balance between the interests of the child and those of the parents and that, in the balancing process, particular importance should be attached to the best interests of the child, which, depending on their nature and seriousness, may override those of the parents. In particular, a parent cannot be entitled under Article 8 to have such measures taken as would harm the child's health and development (Petrov and X v. Russia, cited above, § 100).

25.  Moreover, the obligation of the national authorities to take measures to facilitate meetings between a parent and his or her child is not absolute, especially where the two are still strangers to one another. Such access may not be possible immediately and may require preparatory measures being taken to this effect. The nature and extent of such preparation will depend on the circumstances of each case, but the understanding and cooperation of all concerned will always be an important ingredient. Whilst national authorities must do their utmost to facilitate such cooperation, any obligation to apply coercion in this area must be limited since the interests as well as the rights and freedoms of all concerned must be taken into account, and more particularly the best interests of the child and his or her rights under Article 8 of the Convention. Where contacts with the parent might appear to threaten those interests or interfere with those rights, it is for the national authorities to strike a fair balance between them. What is decisive is whether the national authorities have taken all necessary steps to facilitate access as can reasonably be demanded in the special circumstances of each case (Nuutinen v. Finland, no. 32842/96, § 128, ECHR 2000-VIII).

1. Enforcement of the return order

26.  The Court notes that this complaint is not manifestly ill-�founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible.

27.  Although the courts ordered the children's return to Spain on 30 January 2019 (see paragraph 7 above), that decision remained unenforced at least until 31 March 2023 (see paragraph 21 above), despite the applicant having actively pursued enforcement proceedings and having sought assistance from various authorities (see paragraphs 8, 12, 14, and 15-�16 above).

28.  The Court considers that the measures taken so far by the authorities have not been sufficient, timely or adequate to secure the children's return to Spain, even under the particular circumstances where the children are clearly opposed to going to Spain with their father.

29.  It appears that the bailiff did little more than organise two meetings between the parties (see paragraphs 9 and 12 above). Thus, the bailiff failed to seek further actions against the children's mother, although options were available such as, a fine which could be set pursuant to Article 188 of the CCP in case of X's opposition to the enforcement proceedings, and the assistance of police and child protection experts during the enforcement acts, without putting pressure or acting with violence towards the children, as provided for by Article 911 of the CCP (see also Raw and Others v. France, no. 10131/11, § 93, 7 March 2013, and Kuppinger v. Germany, no. 62198/11, § 107, 15 January 2015).

30.  The enforcement of the ordered against X, which lead to the seizure of her bank accounts, was apparently still pending in March 2023 (see paragraphs 15-�16 above).

31.  Admittedly, both the bailiff and the child protection authority acted promptly to secure psychological counselling for the family (see paragraphs 10-�11 above) pursuant to Article 913 of the CCP, which was necessary against the background of the children's continuous refusal to leave with their father (paragraphs 9, 12 and 17 above). However, the Court finds that under these particularly difficult circumstances, the child protection authority provided only limited help to increase the chances for an enforcement (see paragraph 14 above). It does not appear that the domestic authorities attempted to identify the causes of the children's resistance and address them accordingly. The Court recalls that Article 8 of the Convention requires of the authorities that they take measures to reconcile the conflicting interests, keeping in mind the best interests of the child as a primary consideration. Only after such measures have been exhausted are the domestic authorities to be considered to have complied with their positive obligations under Article 8 of the Convention (K.B. and Others v. Croatia, no. 36216/13, § 144, 14 March 2017).

32.  In sum, it appears that, notwithstanding the urgency inherent in matters concerning relations between parents and their children (see Ignaccolo-Zenide v. Romania, no. 31679/96, § 102, ECHR 2000-I, and Sylvester v. Austria, nos. 36812/97 and 40104/98, §§ 66-69, 24 April 2003), the domestic authorities did not take sufficient and adequate steps, as could reasonably be demanded in the circumstances of this case, to speedily enforce the return order, thus allowing it to remain ineffective for more than four years (see paragraphs 7 and 21 above). It does not appear in the current case that more adequate steps to facilitate cooperation, compared with those already taken, would have threaten the best interests of the children or interfered with their rights. Therefore, the Court finds that no relevant and sufficient reasons were adduced to justify the non-enforcement of the return order for such a long period (see Nuutinen, cited above, § 128 and Sommerfeld, cited above, § 65).

33.  There has accordingly been a violation of Article 8 of the Convention in this respect.

2. Interim request for contact rights

34.  It is noted that at the time when the interim request for contact rights was being examined by the Vaslui County Court (see paragraph 20 above), the Bucharest County Court had already ordered the return of the children to Spain (see paragraph 7 above), thus effectively terminating the Romanian courts' jurisdiction over child custody and other related matters (see Sylvester, cited above, § 45).

35.  Furthermore, nothing indicates that the applicant, who had already initiated divorce proceedings before the Spanish courts (see paragraph 4 above), was unable to address those courts with a request for contact rights.

36.  The Romanian courts thus gave relevant and sufficient reasons for rejecting the interim action (see paragraph 20 above).

37.  Accordingly, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

38.  The applicant claimed EUR 42,500 in respect of pecuniary damage (loss of income and costs for multiple trips to Romania), EUR 850,000 in respect of non-pecuniary damage and EUR 21,396.98 in respect of costs and expenses incurred before the Romanian and Spanish courts and before the Court.

39.  The Government contested the claims.

40.  The Court observes that the applicant did not substantiate the pecuniary damage alleged; it therefore rejects this claim. However, it awards him EUR 7,500 in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicant.

41.  Having regard to the documents in its possession, the Court considers it reasonable to award EUR 3,950 covering costs under all heads, plus any tax that may be chargeable to the applicant.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint concerning the non-enforcement of the court decision ordering the return of the applicant's children to their habitual residence in Spain admissible, and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 8 of the Convention in respect of the non-enforcement of the return order;
3. Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts in euros at the rate applicable at the date of settlement:

(i)  EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 3,950 (three thousand nine hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 5 September 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Crina Kaufman Faris Vehabović
 Acting Deputy Registrar President