THIRD SECTION

Application no. 59164/09

C . against Romania and Austria lodged on 31 October 2009

STATEMENT OF FACTS

1. The applicant, Ms C . , is a Romanian national, who was born in 1981 and lives in Suceava .

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Background of the case

3. Between 1997 and 2007 the applicant lived with V.I.P. They never married. On 1 June 2003 their son S.I.P. was born.

4. In 2007, as their family was experiencing financial difficulties, the applicant and V.I.P. took the joint decision that the applicant would move to Italy to work there. After the applicant moved to Italy she kept in touch with V.I.P. and her son and sent her son money and clothes.

2. Proceedings before the Romanian authorities

(a) Custody and visiting rights proceedings

5. On an unspecified date V.I.P. brought proceedings against the applicant and the Bistriţa-Năsăud Mayor ’ s Office as Guardianship Authority ( Autoritate Tutelară ) seeking custody of S.I.P. and child allowance. The proceedings were held in the applicant ’ s absence. Although V.I.P. had been aware of her address in Italy he did not inform the court of it. The public summons issued by the court in the applicant ’ s name did not reach the applicant, and she remained unaware of the custody proceedings brought against her.

6. By a judgment of 9 January 2008 the BistriÅ£a-Năsăud District Court allowed V.I.P. ’ s action, awarded custody of the child to him and ordered the applicant to pay a monthly child allowance of 97.5 Romanian lei (RON) (approximately 25 euros (EUR)) starting from 25 September 2007 until the child was of age. By relying on witness statements and the BistriÅ£a-Năsăud Guardianship Authority ’ s social investigation and recommendation, the court held that V.I.P. had been the child ’ s main caregiver since his birth and that he provided the child with the emotional support he required for his development. The applicant did not appeal against the judgment, and there is no evidence in the file that she requested that the legally permissible time ‑ limit for lodging an appeal be reinstated.

7. On 18 February 2008 the applicant brought proceedings against V.I.P. seeking visiting rights.

8. On 22 July 2008, in the course of the proceedings opened on 18 February 2008, the applicant requested the Bistriţa-Năsăud District Court to reschedule the hearing set for 2 October 2008 to an earlier date, given the circumstances of the relationship between her and V.I.P. and the urgency of the matter examined by the court.

9. By a final interlocutory judgment of 24 July 2008 the Bistriţa-Năsăud District Court allowed the applicant ’ s request for an earlier hearing and set a new date of 11 September 2008.

10. By a judgment of 11 September 2008 the Bistriţa-Năsăud District Court allowed the applicant ’ s action in part and granted her visiting rights every other weekend, two weeks during the summer holidays in July or August and every other Easter and Christmas day. Taking into account the best interest of the child, the court held that the full visiting schedule requested by the applicant was excessive, given the young age of the child and his daily routine. It also dismissed V.I.P. ’ s request that her visits be allowed only in his presence. The applicant appealed against the judgment. She argued that the visiting rights established by the court were restrictive and that the court had failed to consider that the child was entitled to know his mother ’ s relatives too.

11. By a judgment of 4 December 2008 the Bistriţa-Năsăud County Court allowed the applicant ’ s appeal in part by taking into account the best interest of the child and the parents ’ needs as well as the fact that they were living in two different States, namely Austria and Italy. It granted her visiting rights for the second week of the Christmas holiday, the first week of the Easter holiday and from 15 July to 15 August. It allowed her to take the child away from his father ’ s home, and upheld the judgment of the lower court in respect of the visiting rights granted to her for every other weekend. The applicant appealed on points of law ( recurs ) against the judgment.

12. By a final judgment of 4 March 2009 the Cluj Court of Appeal dismissed the applicant ’ s appeal on points of law against the judgment of 4 December 2008, on the ground that the full visiting rights requested by the applicant were unjustified and did not consider the best interest of the child, taking into account his age and daily routine.

13. On 18 August 2009, at the request of the applicant , the BistriÅ£a ‑ Năsăud District Court issued the certificate required for enforcement by the Council Regulation (EC) no. 2201/2003 of 27 November 2003 (“the Council Regulation”), attesting that the judgment of 11 September 2008 was enforceable. It also noted that the child had not been heard during the visiting rights proceedings, on account of his age.

14. On 12 October 2009 the applicant brought proceedings against V.I.P. seeking the immediate return of the minor to Romania , custody of the child, psychological counselling for her and the child in a specialist State-owned centre, child allowance, visiting rights for V.I.P. and rules for travelling abroad accompanied by either parent. She argued, inter alia, that the child ’ s father was denying her contact with her son, and she also relied on the Hague Convention.

15. By a judgment of 27 January 2010 the Bistriţa-Năsăud District Court dismissed the applicant ’ s action of 12 October 2009 on the ground that the Romanian courts lacked competence ratione loci . It decided to examine its competence ratione loci of its own motion, and the court ’ s decision was expressly endorsed by V.I.P. It held that V.I.P. was granted sole custody of the child by the Romanian courts and then moved to Austria , taking his son with him. According to the relevant Romanian legislation the parent who was entrusted with sole custody of the child had the right to take the child out of the country, even without the other parent ’ s consent. Consequently, the child ’ s departure to Austria with his father was in principle lawful. Moreover, after Romania joined the European Union the courts ’ jurisdiction in matters of recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility was regulated by the Council Regulation. According to Article 8 of the said regulation matters of parental responsibility come under the jurisdiction of the courts of the child ’ s European Union country of habitual residence. According to Article 10 of the same regulation the courts of the Member State where the child was habitually resident prior to his wrongful removal retained jurisdiction until the child had acquired habitual residence in another Member State . From February 2008 the applicant ’ s son ’ s habitual residence was in Austria , therefore, regardless of whether his removal from the country had been lawful, competence ratione loci for examining the applicant ’ s action belonged to the Austrian courts. The applicant appealed against the judgment. She argued, inter alia, that the Romanian courts had jurisdiction to examine the merits of her case, as V.I.P. had implicitly accepted their jurisdiction by taking part in the proceedings and submitting observations.

16. By a final judgment of 17 June 2010 the Bistriţa-Năsăud County Court dismissed the applicant ’ s appeal aga inst the judgment of 27 January 2010 as ill-founded.

(b) Criminal proceedings opened by the applicant against V.I.P. and her contact with other relevant authorities

17. On 9 April 2008 the applicant ’ s legal representative opened criminal proceedings against V.I.P. for obstructing the applicant from contacting her son and for unlawful removal as defined by Article 3 of the Hague Convention, because the applicant ’ s son ’ s domicile had been settled in Austria by V.I.P. without the applicant ’ s consent.

18. By an order of 28 January 2009 the Bistriţa-Năsăud Prosecutor ’ s Office dismissed the criminal complaint lodged by the applicant on 9 April 2008 on the ground that no unlawful act had been committed.

19. On 9 May 2009 the applicant informed the Romanian Ministry of Justice, inter alia, that she was unable to enforce the judgment delivered by the Romanian courts granting her visiting rights in respect of her son. Moreover, relying on the Hague Convention, she requested the Romanian Ministry of Justice to take all the necessary steps to have the Austrian authorities acknowledge and enforce the said judgment. She also requested the Romanian authorities to ensure that her son was urgently returned to Romania and to provide her with psychological counselling with him in order to be able to reconnect.

20. On 4 June 2009 the Romanian Ministry of Justice replied to the applicant ’ s letter of 9 May 2009. They informed her that after Romania joined the European Union the courts ’ jurisdiction between Member States in matters of recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility was regulated by the Council Regulation. According to the said regulation the rule was that matters of parental responsibility, including visiting rights, came under the jurisdiction of the courts of the child ’ s European Union country of habitual residence. The Romanian courts preserved their jurisdiction for changing visiting rights from a national to an international level only for three months from the date the applicant ’ s son moved to Austria lawfully. After the three months had expired the courts of the Member State where the child was habitually resident retained jurisdiction for claims concerning inter-country visiting rights. In S.I.P. ’ s case the jurisdiction was therefore retained by the Austrian courts. Moreover, the applicant ’ s son had left Romania lawfully, as according to the relevant legislation in force at the time, the minor accompanied by the parent who was granted full custody of the child by a final court order could leave the country without the other parent ’ s consent. Therefore, in order to change her son ’ s legal status the applicant had to lodge proceedings before the court which retained jurisdiction in order to be able to change her visiting rights or to gain custody of the child. The Romanian Ministry of Justice was unable to represent the applicant or to intervene in the proceedings on her behalf. It was for the applicant and her potential legal representative to litigate the case. In addition they stated that the Austrian court which retained jurisdiction in the applicant ’ s case was the Knittelfeld District Court. Lastly, they informed the applicant that given that she was living in Italy she could notify the Italian Ministry of Justice in order to organise and secure visiting rights between Italy and Austria under the Hague Convention.

21. On 28 September 2009 the applicant brought criminal proceedings against the child ’ s father and other third parties for fraud, obstruction of justice, perjury and destruction of evidence committed during the custody proceedings. She stated that although she had daily contact with the child ’ s father and he was aware of her whereabouts, he failed to inform the court of her correspondence address and she remained unaware of the child custody proceedings he had opened against her. Moreover, he and other third parties had committed perjury by declaring before the Romanian authorities that she had abandoned her son and her family home and that the father was the only parent who was raising and supporting the child. Furthermore, although she obtained a judgment granting her visiting rights she was being prevented by V.I.P. and his new wife from enforcing it.

22. On 5 November 2009 the Bucharest National Authority for Protection of Child Rights informed the applicant through the Child Protection and Social Assistance General Directorate attached to the Bistriţa-Năsăud County Council that, according to the investigation carried out by the Romanian Embassy in Vienna and the social investigation carried out by the Austrian authorities, her son had left Romania lawfully with his father in February 2008. The child ’ s father had had a final court judgment granting him full custody of the child. Her son was residing legally in Austria with his father and his new family. The home they all lived in was large and clean. The child was attending kindergarten. His father ’ s family was very attached to the child and the child was able to develop well, surrounded by a loving family atmosphere. The applicant had a court judgment granting her visiting rights twice a month, thus the child was given the opportunity to have contact with his mother.

23. On 17 November 2009 the appl icant was heard by the BistriÅ£a ‑ Năsăud Police Department in respect of the criminal investigation opened following her complaint of 28 September 2009. She insisted that the Romanian authorities hear V.I.P., however her request to have V.I.P. heard in Austria was allegedly refused. The proceedings appear to be still pending before the domestic authorities.

24. On 27 November 2009 the applicant appealed agai nst the BistriÅ£a ‑ Năsăud Prosecutor ’ s Office order of 28 January 2009 before the prosecutor at the next level. She argued, inter alia, that her chosen legal representative had failed to notify her of the prosecutor ’ s order prior to 17 November 2009. Consequently she requested that her appeal be considered as having been lodged in due time and be allowed.

25. By a final order of 14 December 2009 the prosecutor at the next level attached to the Bistriţa-Năsăud Prosecutor ’ s Office dismissed the applicant ’ s appeal against the order of 28 January 2009 as time-barred. It held, inter alia, that the relevant rules of criminal procedure did not apply in respect of appeals lodged against prosecutors ’ orders that criminal investigations should not be opened in respect of the possibility for a party to be reinstated within the appeal time-limit once it had expired. In addition, the applicant could lodge a new criminal complaint against the child ’ s father for obstructing her contact rights with the minor. It does not appear from the evidence in the file that the applicant appealed against the order before the domestic courts.

3. Proceedings before the Austrian authorities

26. On 28 February 2008 the Knittelfeld Administrative Authority issued a certificate attesting that the applicant ’ s son had his main domicile registered in Austria , in the town of Knittelfeld .

27. On 12 November 2008 the Knittelfeld Prefect ’ s Office produced a social investigation report in respect of the child ’ s living conditions at his home in Austria . The social workers who produced the report heard the child, his father and his stepmother. According to the report the child arrived in Austria with his father in February 2008. In March 2008 the child ’ s father married another Romanian national who was living in Austria . They all lived in a large and clean home. The child attended kindergarten and was well taken care of by the family. According to V.I.P. ’ s statements, the child ’ s mother left them in February 2007 and they did not have contact with her for more than a year, although V.I.P. tried to find her. He raised the child on his own and on 9 January 2008 he was granted full custody of the child by the Romanian courts. Afterwards, V.I.P. left Romania with his son and settled in Austria . V.I.P. remarried, and the child ’ s mother contacted him soon afterwards because she wanted to see the child. She was allowed to see the child on his birthday and spent a day in his company, but the boy did not recognise his mother any more. She then did not contact them for some time, but in August 2008 she was granted visiting rights twice a month at the child ’ s place of residence. She never took advantage of that right, but contacted her son by telephone weekly. She never expressed the desire to take the child to her home. The report concluded that the child was well integrated into his family and was being well taken care of. He had the opportunity to develop well. Although his mother could contact him, their connection was very weak because of their prior relationship. For the child, the father was the main caregiver.

(a) The proceedings regarding the applicant ’ s visiting rights

28. On 11 March 2009 V.I.P. requested the Knittelfeld District Court to allow the applicant to visit her son only at a child protection centre and under the supervision of third parties until a stronger mother-child bond had been established. He informed the Austrian authorities that the mother had been granted visiting rights by the Romanian courts and that she had notified him that between 21 and 22 March 2009 she would take the child away from V.I.P. ’ s home. In a written submission to the court V.I.P. also acknowledged that he had been informed of his right not to allow the mother to visit her child or to take him away against his son ’ s will.

29. According to the applicant, on 11 March 2009 the Knittelfeld District Court issued a temporary injunction on the basis of V.I.P. ’ s statement and without providing any other evidence prohibiting the applicant from contacting her son.

30. On 23 March 2009 the applicant was heard by Judge E.W., but she allegedly refused to accept any of the relevant evidence, translated into German and notarised, presented by the applicant in respect of the visiting rights granted by the Romanian courts. Judge E.W. allegedly informed the applicant that V.I.P. had asked for the applicant only to be allowed to see her son for one hour every two weeks at the Knittelfeld Child Protection Centre. On the same date the applicant contacted the Knittelfeld Child Protection Centre and was allegedly informed that they could set up a meeting between her and her son within a month.

31. On 7 May 2009 the applicant contacted the Knittelfeld Child Protection Centre to enquire about the first meeting with her son. She was allegedly told that the meeting could not be set up because the centre had no Romanian-speaking staff members, and that they would notify the Knittelfeld District Court so that an alternative solution could be found. To date no meeting has been set up between the applicant and her son.

32. On 14 September 2009 the applicant submitted a request to the Knittelfeld District Court to have the judgments delivered by the Romanian courts enforced.

33. On 26 May 2010, the applicant sent that request, with a number of other documents, to the President of the Leoben Regional Court and requested enforcement of her visiting rights. On 11 June 2010 the President of the Leoben Regional Court informed the applicant that as an administrative organ of the judiciary she had no jurisdiction in the matter and had thus forwarded the written request and the other documents to the Knittelfeld District Court, as the court with jurisdiction.

34. On 30 June 2010 the applicant again submitted a request to the Knittelfeld District Court to have the judgments delivered by the Romanian courts enforced. On 5 July 2010, she applied for legal aid.

35. On 22 September 2010 the Knittelfeld District Court held an oral hearing. The child ’ s father was present, as was an interpreter for the applicant. The applicant was not present at the hearing. Thereupon, on 23 September 2010, the same court dismissed the applicant ’ s request for visiting rights. It stated firstly that it interpreted the applicant ’ s request for enforcement of the judgments delivered by the Romanian courts as a request for visiting rights, since the judgments rendered in Romania without hearing the child ’ s father, who had custody of the child, could not be enforced in Austria . It also stated that the applicant had been duly summoned to the hearing, however, she had not presented herself at the court and had also not offered apologies. The child ’ s father had stated that the applicant had also not contacted him or the child in recent months. Therefore, the court assumed that the applicant was not interested in pursuing her request for visiting rights.

36. The applicant lodged an appeal against that decision, stating that she had never received a summons. She objected to Judge E.W. and stated that she wanted the enforcement of the Romanian decisions and was not requesting a new decision on visiting rights in Austria . She further stated that the child ’ s father had taken an active part in the proceedings in Romania , and had been represented by a lawyer.

37. On 29 March 2011 the Leoben Regional Court stayed the appeal proceedings while waiting for a decision on the objection.

38. On 13 April 2011 the Knittelfeld District Court dismissed the applicant ’ s objection to Judge E.W. as unfounded. Judge E.W. had stated that she did not see any reason to excuse herself from the proceedings. She had only met the applicant once and had stated in that meeting that she counselled the parents to find an extrajudicial solution for contact with the child. She also had no personal relationship with the child ’ s father. The court found that the applicant had not given any specific reasons for her objection to the judge. The applicant did not lodge an appeal against that decision.

39. On 17 June 2011 the Leoben Regional Court allowed the applicant ’ s appeal and quashed the decision of 23 September 2010. It found that the summons to the applicant had been sent to the wrong address in Romania . The proceedings had to be continued at the same level of jurisdiction with a hearing with the applicant to establish if the applicant was requesting enforcement of the judgments delivered by the Romanian courts or wanted to apply for visiting rights in Austria .

40. On 9 November 2011 the applicant appeared at the Knittelfeld District Court. She informed the court of an address in Italy to which court documents could be sent. The record of the hearing indicates that the applicant stated that she did not recognise the jurisdiction of the Austrian courts; she only wanted the court to enforce the Romanian decisions. The proceedings seem still to be pending.

(b) The proceedings regarding child support

41. On 12 May 2009 V.I.P. brought proceedings against the applicant before the Knittelfeld District Court, seeking child support starting from 1 August 2008 until the child was able to support himself.

42. On 20 May 2009 the Knittelfeld District Court issued a temporary injunction against the applicant, ordering her to pay child support of EUR 105 pending the outcome of the child support proceedings opened by V.I.P. against the applicant on 12 May 2009.

43. On an unspecified date the applicant contested the proceedings brought by V.I.P. against her on 12 May 2009. She argued, inter alia, that the Austrian courts did not have jurisdiction to decide in respect of child support pending the outcome of the court proceedings opened by her before the Romanian courts. She also contested the lawfulness of the evidence obtained by the Austrian authorities in respect of her case and the lawfulness of her son ’ s being domiciled in Austria . On 11 December 2009 the Leoben District Court rejected the applicant ’ s appeal as lodged out of time.

44. By a judgment of 8 January 2010 the Knittelfeld District Court allowed V.I.P. ’ s action brought against the applicant on 12 May 2009. It ordered the applicant to pay monthly child support of EUR 50 from 1 August 2008 until the child was able to support himself, on the ground that the applicant had sufficient income to pay that level of support. It also quashed the temporary injunction delive red by the same court on 20 May 2009 ordering the applicant to pay EUR 105 in monthly child allowance. It also held that according to Article 1 of the Hague Statute Austrian law applied to the present case, because the child ’ s habitual permanent residence was in Austria . The applicant appealed on points of law ( Rekurs ) against the judgment, inter alia, on the ground that the court had assessed the evidence incorrectly and she had fulfilled her responsibility to pay child support from 1 August 2008 to the date of the judgment, so she could only be ordered to pay child support from the date of the court ’ s judgment. Moreover, the applicant alleged that the court had failed to consider the best interest of the child, as he did not have contact with his mother; the court had also not taken into account the parties ’ nationality when determining the lawful domicile of the child.

45. On 13 April 2010 the Knittelfeld District Court awarded the applicant legal aid in that she was not required to pay court or interpreting costs for the child support proceedings.

46. On 28 September 2010 the Leoben Regional Court rejected the applicant ’ s appeal as lodged out of time.

(c) Other proceedings

47. On an unspecified date the applicant lodged a criminal complaint against V.I.P. with the Graz Police Department for unlawful residence in Austria . She argued that V.I.P. was living and working unlawfully in Austria , he had removed her son from Romania without her consent, and in spite of all the actions she had brought before the Romanian authorities to have her son returned to Romania they had failed to assist her. Those proceedings appear still to be pending.

48. By a letter of 26 April 2010 the applicant informed the Court that she was still unable to visit her son.

B. Relevant domestic and international law

49. The relevant Romanian legal provisions are set out in the Court ’ s judgments in the cases of Lafargue v. Romania (no. 37284/02, §§ 64-69, 13 July 2006), and Costreie v. Romania (no. 31703/05 , §§ 55-58, 13 October 2009). The role and responsibilities of the Romanian local public authorities in respect of social assistance and child protection, as well as the relevant provisions of the Child Protection Act (no. 272/2004), are described in the judgment in the case of Amanalachioai v. Romania , (no. 4023/04, §§ 56 and 59, 26 May 2009).

50. The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, ratified by Romania and Austria , provides, in so far as relevant, as follows:

Article 1

The objects of the present Convention are – ...

b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.

Article 4

“The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights...”

Article 6

“A Contracting State shall designate a Central Authority to discharge the duties which are imposed by the Convention upon such authorities ...”

Article 7

“Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective State to secure the prompt return of children and to achieve the other objects of this Convention.

In particular, either directly or through any intermediary, they shall take all appropriate measures ..

f) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access; ...”

Article 21

“An application to make arrangements for organising or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child.

The Central Authorities are bound by the obligations of co-operation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of those rights may be subject. The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights.

The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organising or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject.“

Article 25

“Nationals of the Contracting States and persons who are habitually resident within those States shall be entitled in matters concerned with the application of this Convention to legal aid and advice in any other Contracting State on the same conditions as if they themselves were nationals of and habitually resident in that State.”

51. Another relevant document is 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.

COMPLAINTS

52. The applicant complained under Article 1 of the Convention in respect of Romania and Austria , without providing additional details.

53. The applicant complained under Article 6 of the Convention in respect of Romania that her right to a fair trial had been breached in respect of the proceedings which ended by the final judgment of 9 January 2008 in so far as the domestic court had awarded custody of her son to V.I.P. on the basis of unverified witness statements, by summoning her at her Romanian address and without carrying out an investigation to determine her and her son ’ s true circumstances. Moreover, the proceedings which ended by the final judgment of 17 June 2010 had been excessively lengthy.

54. Relying on the same Article of the Convention, the applicant complained in respect of Austria that the Knittelfeld District Court had disregarded her rights and those of her child, had heard only V.I.P. and had failed to provide additional evidence in the proceedings initiated by V.I.P. against her on 11 March 2009. Moreover, the court had disregarded her right to take part in the proceedings, had failed to notify her of the procedural steps taken in the course of the proceedings, and had acted outside its jurisdiction, as if it were an appeal court, in proceedings concerning her visiting rights that had been attended by both parents.

55. The applicant complained under Article 8 of the Convention in respect of Romania that the authorities had failed to cooperate to protect her right to family life and to prevent a limitation of her rights, although they had examined the matters concerning custody of her son and her visiting rights. They had ignored her parental rights and the minor ’ s best interest and had protected V.I.P. ’ s freedom of movement. They had failed to cooperate with the Austrian State and had failed to notify her of the change of her son ’ s habitual residence to Austria .

56. By citing the same Article of the Convention the applicant complained in respect of Austria that the interference of the authorities with her family life was unlawful. They had supported V.I.P. in limiting her contact rights in respect of her son, and had prevented her from contacting her son for more than two hours in a two-year period. They had also failed to notify her of the change of her son ’ s habitual residence to Austria .

57. The applicant complained under Article 13 of the Convention in respect of Austria of a breach of her right to an effective remedy in so far as the President of the Knittelfeld District Court had referred her case to Judge E.W. although that judge had mishandled her case. Moreover, she had not been able to lodge an appeal against the injunction ordered by the Knittelfeld District Court on 11 March 2009, because she had never been notified of the said decision in writing.

58. The applicant complained under Articles 14 and 1 of Protocol No.12 to the Convention in respect of Austria that she had been discriminated against by the authorities in comparison with V.I.P., and that they had breached her right of access to court on account, inter alia, of her nationality, place of residence, financial situation and inability to speak German. For the reasons previously stated they had failed to hear her, to accept the notarised German translations of the relevant documents presented by her, and to address her with respect when informing her that she did not have visiting rights under Austrian law. Furthermore, they had failed to help her to have contact with her son on his first day at school. Lastly, the Knittelfeld Police Department had refused to accept a criminal complaint lodged against V.I.P. and to record incidents she had been involved in.

59. The applicant complained under Article 17 of the Convention in respect of Romania that the child had been settled in Austria without her being heard on the matter.

60. Relying on the same Article of the Convention, the applicant complained in respect of Austria that the Knittelfeld District Court had unlawfully decided to restrict her contact rights without initiating a preliminary investigation of the case, without hearing the child and without considering his best interest. Moreover, the child had been settled in Austria without her being heard on the matter. Furthermore, she reiterated her complaint that she had been discriminated against in comparison with V.I.P. because the authorities had breached her right of access to court.

61. The applicant complained under Article 18 of the Convention in respect of Romania that the authorities had failed to protect the child ’ s best interest and to ensure enforcement of the mother ’ s parental rights. They had failed to cooperate with the Austrian State in respect of the proceedings and notifications lodged by her. The inaction of the said authorities had caused her both pecuniary and non-pecuniary damage, and had contributed to her estrangement from her son.

62. By citing the same Article of the Convention in respect of Austria the applicant complained that the authorities had restricted her parental rights and denied her access to court. Moreover, she had been denied the opportunity to re-establish normal contact with her son. The Austrian authorities had failed to cooperate with the Romanian State in respect of the proceedings and notifications lodged by her. The inaction of the said authorities had caused her pecuniary and non-pecuniary damage and had contributed to her estrangement from her son.

QUESTIONS TO THE PARTIES

1. Has there been a violation of Article 8 of t he Convention in respect of Romania ? In particular, has the applicant suffered a breach of her right to respect for her family life as a result of failur e of the Romanian authorities to ensure and assist her with the enforcement of her rights of contact granted by the final judgment of 4 March 2009?

2. Has there been a violation of the applicant ’ s right to respect for her family life , contrary to Article 8 of the Convention in respect of the proceedings opened by her in Austria ? In particular, have the Austrian authorities acted diligently with regard to the proceedings concerning the applicant ’ s visiting rights?

The Austrian Government are further requested to inform the Court on the status of the proceedings opened in Austria in respect of the applicant ’ s visiting rights and to supplement the facts of the case if necessary.