FOURTH SECTION

DECISION

Application no. 46160/19 Bogdan-Gavrilă BUȘ against Romania

The European Court of Human Rights (Fourth Section), sitting on 19 October 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 22 August 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 Bogdan-Gavrilă Buș, is a Romanian national who was born in 1978 and lives in Prejmer, Braşov County. He was represented before the Court by Ms T. Sorica, a lawyer practising in Brașov.

2. The Romanian Government (“the Government”) were represented by their Agent, Ms O.F. Ezer, of the Ministry of Foreign Affairs.

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4 . By a decision of 14 November 2016, the BraÅŸov District Court upheld a petition for divorce lodged by the applicant, ordered that the children (born in 2004 and 2012) of the applicant and his former wife should reside with their mother, and granted the applicant the right to have contact with his children.

5. On 6 January 2017 the applicant went to collect the children at their home, but they refused to go with him. On 2 February 2017 the applicant returned to the children’s home, accompanied by two police officers. The children again did not wish to go with him.

6. On 6 January 2017 the applicant lodged a criminal complaint against his former spouse with the Dumbrăveni police, accusing her of resisting the enforcement of a court order and of deliberately turning the children against him.

7 . On 19 January 2017 the prosecutor’s office attached to the Mediaş District Court opened an investigation. On 3 May 2017, on the basis of the evidence in the file (notably, several witness statements), the prosecutor’s office decided to end the investigation. It considered that no criminal acts had been committed, as the mother had never been opposed to the applicant maintaining a relationship with his children; rather, it had been the children who had refused to see their father. After the applicant lodged an objection, that decision was upheld firstly by the prosecutor-in-chief from the same prosecutor’s office in a decision of 17 July 2017, and then by the Mediaş District Court in a decision of 11 April 2018.

8 . On 11 November 2017 the applicant sought the assistance of a bailiff in enforcing the contact schedule. The bailiff lodged a request with the Mediaş District Court for permission to start enforcement proceedings; permission was granted by the Mediaş District Court on 14 November 2017. The mother of the children lodged an objection against the enforcement, arguing that the children refused to see their father because of his aggressive behaviour during their time together. Her objection was dismissed on 6 March 2018 by the Mediaş District Court on the grounds that the children’s mother had not proved that they refused to see their father.

9 . On 2 November 2018 the applicant, accompanied by the bailiff, visited his children in their mother’s home. According to the bailiff’s report, the children refused to accompany the applicant. The bailiff thus considered that the enforcement of the contact order had become impossible because of the children’s opposition.

10 . Consequently, on 8 February 2019, acting on behalf of the applicant, the bailiff lodged a request with the Sibiu Directorate General for Social Welfare and Child Protection (“the child ‑ protection authority”) for the commencement of court proceedings in order that the children might be enrolled in a psychological counselling programme, as required in such situations under Article 912 of the CCP (cited in Niţă v. Romania [Committee], no. 30305/16, § 28, 3 July 2018 – see paragraph 26 below).

11 . On 25 February 2019 the child-protection authority lodged a request with the MediaÅŸ District Court for the children to undergo counselling; on 20 March 2019 the court allowed the request and decided that the children should undergo counselling for three months. The court appointed A, a psychologist included in a list of accredited professionals, to counsel the children, and ordered the parents to each pay half of the costs of the counselling programme.

12 . On 16 April 2019 A asked the court to release her from the above ‑ mentioned task, as she was not a specialist in child counselling.

13. On 8 May 2019 the court appointed a new psychologist, B, but on 4 January 2020 the applicant informed the court that B had not started the counselling programme and asked the court to appoint a new counsellor. It appeared that B was also not trained to work with children.

14 . On 12 February 2020 the court appointed a new psychologist, C, who accepted the task.

15. The first session was scheduled to take place on 12 March 2020 but was cancelled owing to the COVID-19 crisis (for details of the COVID ‑ 19 ‑ related restrictions in the respondent State, see TerheÅŸ v. Romania (dec.), no. 49933/20, §§ 4 ‑ 5, 13 April 2021).

16. Dissatisfied with the fact that C had not organised any meeting with the children, the applicant lodged a new request with the court, seeking the appointment of a new psychologist. He furthermore complained that his former spouse was refusing to take the children to any counselling sessions.

17. A hearing took place on 27 May 2020 before the MediaÅŸ District Court After discussions with C, the court found that the latter had been unable to organise any counselling sessions – partly because of the COVID ‑ 19 crisis, but also because the parents had refused to pay the cost of the counselling sessions.

18. When asked by the court if he was willing to pay the total cost of the counselling programme, the applicant said that he was. He requested that C begin the counselling sessions, despite the COVID-19 crisis, as he had been unable to see his children for the previous four years. At the same time, the mother promised to take the children to the counselling sessions.

19 . In a decision rendered on the same day, 27 May 2020, the Mediaş District Court dismissed a request lodged by the applicant for the appointment of a new psychologist, ruled that it was feasible for the counselling programme to proceed during the COVID-19 crisis, and asked C to submit to the court her proposed schedule for the counselling sessions. The court noted that the applicant would pay for all the counselling sessions and ordered the mother to take the children to the psychologist’s office. Lastly, the court decided to hold a hearing on 3 June 2020 with a view to interviewing the children and appraising their position concerning the counselling programme.

20. At the hearing of 3 June 2020 both children expressed their opposition to their having any contact with the applicant.

21 . The counselling programme started on 18 June 2020. During the three-month programme, the applicant allegedly behaved inappropriately and aggressively towards C and the children, and tried to coerce them into allowing him to be present during the sessions. The court intervened and affirmed that C was free to decide how to organise the counselling.

22 . On 2 October 2020 C submitted her report, and on 6 October 2020 she submitted her final conclusions.

23 . In a hearing of 7 October 2020, the court interviewed the children in private and then held an open discussion with them and the two parents in order to reach agreement regarding how to organise the schedule for contact between the children and the applicant. The children continued to refuse to have any contact with their father, whom they perceived as being aggressive and not interested in them. They informed the court that that was their own decision and that it had not in any way been influenced by their mother.

24 . The court advised the parties to try to resolve their differences and to maintain a balanced emotional relationship. It asked the parents to resume the contact between the applicant and the children according to a schedule, agreed by them all, that would take into account the children’s needs and interests.

25. In a decision rendered on the same day, 7 October 2020, the court terminated the counselling programme. The parties and the child ‑ protection authority were notified of that decision.

26 . The relevant provisions of the Code of Civil Procedure (“the CCP”) concerning the procedure for the enforcement of court orders concerning minors is set out in Niţă (cited above, §§ 27-30).

COMPLAINT

27. The applicant complained of receiving inadequate assistance from the State authorities in respect of his attempts to maintain contact with his children after his divorce and to prevent their mother from alienating them from him. He relied on Article 6 § 1 of the Convention.

THE LAW

28. The applicant complained of the poor quality of the State’s assistance in respect of his efforts to exercise his right to maintain contact with his children.

29. Having regard to the substance of the applicant’s complaint, the Court, which is master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, ECHR 2018), will examine the application from the standpoint of Article 8 of the Convention, which reads as follows:

“1. Everyone has the right to respect for his private and family life, ...

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.”

30 . The Government argued that the applicant had failed to exhaust the available domestic remedies, as he had lodged his application with the Court while the domestic proceedings had still been pending. The domestic proceedings had proved effective, and the relevant authorities – specifically the child-protection authority, the bailiffs service and the courts – had taken specific measures to assist the applicant without undue delay.

31. The applicant did not make any submission regarding these points within the time-limits set by the Court to that effect.

32. 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).

33. At the outset, the Court notes that the Government raised an objection of inadmissibility in respect of the case because of the non ‑ exhaustion of domestic remedies (see paragraph 30 above). However, it considers that it is not necessary to examine it because the application is in any case inadmissible on other grounds.

34. The Court notes that the applicant, who was granted custody rights, was unable to see his children after his divorce.

35. The applicant fully used the mechanism provided for by law (which was at his disposal) in order to try to secure the enforcement of the contact schedule he was assisted by a bailiff, who started enforcement proceedings without delay (see paragraph 8 above), accompanied him to see the children (see paragraph 9 above) and initiated the procedure for the provision of psychological counselling to the children as soon as he had noted their opposition to maintaining contact with their father (see paragraph 10 above).

36. The Court cannot but note that the applicant waited for one year before seeking the enforcement of the contact schedule: from 14 November 2016 (the date of the divorce and the custody decision – see paragraph 4 above) until 11 November 2017 (the date on which he contacted the bailiff– see paragraph 8 above). The lapse of such a period of time, during which the applicant apparently did not see his children, and which is not imputable to the authorities, must have had a negative impact on the relations between the applicant and his children, and it must have rendered the enforcement of the contact schedule more difficult (see K.B. and Others v. Croatia , cited above, § 142 in fine ).

37. Furthermore, the applicant’s allegations that he had been hindered in exercising his contact rights were also examined by the prosecutor’s office (see paragraph 7 above). The fact that, after the prosecutor’s office had carried out its investigation, both it and the court reached conclusions that were unfavourable to the applicant is not indicative of a deficiency in the system, in so far as the investigation appears to have been thorough and comprehensive.

38. The Court also notes that the domestic courts examined all requests related to the applicant’s contact rights in a timely and efficient manner. The Mediaş District Court allowed the request for the opening of enforcement proceedings within three days of the date on which that request was lodged (see paragraph 8 above); moreover, it ordered the commencement of psychological counselling less than a month after the date on which the request for such counselling was lodged (see paragraph 11 above).

39. Admittedly, it was fifteen months before the counselling programme effectively started (see paragraphs 11 and 21 above). However, during that time the MediaÅŸ District Court did not sit idly by; rather, it closely monitored the situation and intervened in the process as soon as it became necessary. For instance, it swiftly decided to change psychologists until an appropriate counsellor was found for the children (see paragraphs 12 ‑ 14 above); it appraised the feasibility of starting the psychological counselling during the COVID-19 crisis (see paragraph 19 above); and it interviewed the children – both before the start of the programme and after its completion – in order to be able to assess their attitude towards counselling and their needs. Moreover, at the end of the counselling sessions the MediaÅŸ District Court interviewed all the parties concerned and advised them on how to proceed in order to further the best interests of the children (see paragraphs 23 ‑ 24 above).

40. Moreover, the Court notes that, under the applicable law, nothing at the present time is stopping the applicant from resuming the enforcement proceedings (see Article 912 § 4 of the CCP, cited in Niţă v. Romania [Committee], no. 30305/16, § 28, 3 July 2018).

41. 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.

42. 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.

43. 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 18 November 2021.

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Ilse Freiwirth Gabriele Kucsko-Stadlmayer Deputy Registrar President