THIRD SECTION

Application no. 54443/10 Octavian BLAGA against Romania lodged on 20 September 2010

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Octavian Blaga , is an American and Romanian national, who was born in 1967 and lives in Suwanee , the United States of America (“the U.S. ”). He is represente d before the Court by Mr Arseni Ovidiu Krebelder , a lawyer practising in Remseck , Germany .

A. The circumstances of the case

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

In 1993 the applicant married D.B. They were both American and Romanian citizens and the marriage was concluded in the U.S. in the State of Georgia . They had three children, A.H.B who was born in 1998, and two twins, N.A.B. and P.N.B. who were born in 2000. The parents had joined custody of the children according to the U.S. law. They all lived in the U.S. , in Suwanee .

On 14 August 2008 the applicant signed a notarized authority form allowing his wife to leave the U.S. with their three children for a short holiday to Romania . The authority form was signed by the applicant under the condition that his wife would return the children to the U.S. after the holiday period expired.

The applicant ’ s wife failed to return the children to the U.S. and on 14 October 2008 she brought divorce and custody proceedings against the applicant before the Braşov District Court in Romania .

1. Proceedings conducted before the U.S. Courts

By an injunction of 1 May 2007 the Supreme Court of the Forsyth County in the U.S. ordered the applicant and his wife to refrain from removing their children or from settling their residence outside the jurisdiction of the said court in the absence of an express decision issued by it.

On 19 December 2008 the applicant brought divorce and custody proceedings against his wife before the Supreme Court of the Forsyth County . The proceedings appear to be still pending before the U.S. court.

2. Proceedings under the Hague Convention conducted in Romania

On an unspecified date the applicant submitted a request for the return of his three under age children to the U.S. under Article 3 of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”) with the U.S. Central Authority responsible for the obligations established by the Hague Convention. On 11 December 2008, the U.S. authorities submitted the request to the Romanian Ministry of Justice. The applicant argued that his children had been unlawfully removed from the U.S. territory by his wife in breach of the joint custody held by the spouses at the time of the removal.

On 4 February 2009, the Romanian Ministry of Justice, acting as the Central Authority responsible for the obligations established by the Hague Convention, opened proceedings on behalf of the applicant before the Bucharest County Court.

By a judgment of 16 April 2009 the Bucharest County Court dismissed the applicant ’ s action on the basis of testimonial and document evidence as well as a social investigation report produced by the Braşov Tutelary Authority. The court also heard the three children after they attended counselling sessions organised by the Bucharest Social Assistance and Child Protection Agency. It held that the applicant enjoyed joined custody of the children and had a right to decide in respect of their residence. Moreover, D.B. ’ s failure to return them to the U.S. was unlawful and her argument that the applicant ’ s strict upbringing of the children was a serious risk for their return to the U.S. and would expose them to physical and psychological harm, within the meaning of Article 13 § 1 (b) of the Hague Convention was unfounded. However, by citing the Elisa Perez-Vera Explanatory Report and Article 13 § 2 of the Hague Convention it held that the children ’ s views concerning the essential question of their return or retention were conclusive because they had attained an age and degree of maturity sufficient for their views to be taken into account and were the only reason the court refused to order their return to the U.S. In this context it acknowledged that the twins were less than ten years old at the time, an age considered by Romanian law to be the minimum age for the views of a child to be taken into account. However, A.H.B. was eleven years old and she stated freely and unequivocally her desire to stay in Romania . Consequently, the opinion of the twins could not be ignored by the court given that it was not in the best interest of the children to be separated and that their potential return to the U.S. would generate new and potentially traumatic circumstances for their psychological development.

The applicant and the Romanian Ministry of Justice appealed on points of law ( recurat ) against the judgment. The applicant argued that the County Court had wrongfully interpreted the provisions of the Hague Convention and that its decision interfered with the jurisdiction held by the U.S. courts in respect of custody matters. Also, the court failed to provide any reasons on why it considered all his children sufficiently mature in order to rely on their opinion and argued that allowing A.H.B. to make decisions also for her siblings was inacceptable. The Romanian Ministry of Justice argued on behalf of the applicant that the court had wrongfully assessed the evidence in the file and considered the opinion of an eleven years old sufficient for its decision. Since no evidence in the file suggested that the children ’ s return to the U.S. would expose them to serious harm, the Romanian authorities had, consequently, a duty to return the children to the State of habitual residence.

By a final judgment of 24 June 2009 the Bucharest Court of Appeal allowed the applicant ’ s appeal on points of law, quashed the judgment of 16 April 2009 and ordered a retrial. It held on its own motion that the interlocutory judgment of 13 April 2009 adjourning the date of the decision was missing from the file. Therefore, the appellate court was unable to determine whether the applicant ’ s right to a fair trial and of access to court had been observed by the judicial authorities.

By a judgment of 24 November 2009, following a second set of proceedings, the Bucharest County Court dismissed the applicant ’ s action. It acknowledged that the applicant shared the custody of his children, that their removal from the U.S. had been unlawful and that their return to the said country would not expose them to physical and psychological harm within the meaning of Article 13 § 1 (b) of the Hague Convention. However, the children ’ s view were considered conclusive for the court to dismiss the applicant ’ s action as they had adapted very well to their life in Romania and had expressed their free and unequivocal wish to stay in the country.

The applicant and the Romanian Ministry of Justice appealed on points of law ( recurat ) against the judgment. They argued inter alia that the County Court failed to acknowledge that by unlawfully removing the children from the U.S. , their mother had breached the U.S. laws. Moreover, the court ignored the U.S. legislation and the decisions of the U.S. courts and had wrongfully considered the children ’ s views conclusive given that they did not attain an age and a degree of maturity sufficient for their views to be taken into account. Moreover, the courts had wrongfully interpreted the provisions of the Hague Convention and of the domestic legislation.

On 12 February 2010, by relying on Article 11 of the Hague Convention, the applicant lodged a request for a statement for the delay of the proceedings lodged by him for the return of the children with the Bucharest County Court. He argued that the repeated delays caused by the Romanian authorities in examining his case breached his right to a trial within a reasonable time guaranteed by Article 6 of the European Convention on Human Rights.

On 25 February 2010 the Bucharest County Court acknowledged the applicant ’ s request of 12 February 2010 and informed him that the judgment delivered by the said court on 24 November 2009 was communicated to the parties on 23 February 2010.

By a final judgment of 25 March 2010 the Bucharest Court of Appeal dismissed the applicant ’ s appeal on points of law. It acknowledged that the applicant had joint custody of the children and that their removal from the U.S. had been unlawful, but upheld the decision of the County Court to refuse the return of the children to the U.S. It held that the provisions of the Hague Convention as interpreted also by the Elisa Perez-Vera Explanatory Report suggested that the best interest of the child was at the heart of the unlawful removal principles regulated by the said Convention and the exceptions thereto. Consequently, the decision of the lower court to refuse the return of the children to the U.S. by relying on Article 13 § 2 of the Hague Convention after it declared the removal unlawful was not contradictory. Moreover, the children had been heard by the first-instance court in the presence of a psychologist and after prior counselling sessions. They all freely and unequivocal stated that they refused to return to the U.S. The children showed a sufficient degree of maturity in expressing their opinions as they understood their situation and made logical assessments which were not plagued by contradictions concerning their relationship with their parents, their future perspectives in the two countries and their views on family life. In this context, the argument that the two twins were not ten years old at the time and their opinions could not be relevant for the case was unfounded. In addition, the lower court ’ s reliance on Article 13 § 2 of the Hague Convention was also justified by A.H.B. ’ s clear refusal to return to the U.S. According to the evidence and the psychology reports available to the file the connection between the three siblings was very strong. Consequently, an assessment that the two twins did not show a sufficient degree of maturity in expressing their opinions would not serve the best interest of the children. A separation of the siblings would be traumatic and would impact their future psychological development as confirmed by the expert reports. Furthermore, there was no evidence in the file to support the applicant ’ s argument that his wife denied him access to his children. In addition the present case did not concern custody rights; consequently the court dismissed the applicant ’ s argument that according to the domestic legislation it could not attach more weight to the children ’ s statements than to those of the parent exercising his parental rights. Lastly, it considered that the first-instance court had correctly interpreted the provisions of the Hague Convention.

3. Divorce and custody proceedings conducted in Romania

By an interlocutory judgment of 20 February 2009 the Braşov District Court allowed the applicant ’ s request seeking the suspension of the custody and divorce proceedings pending the outcome of the Hague Convention proceedings for the return of his children to the U.S. and ordered the suspension of the trial.

By an interlocutory judgment of 18 June 2010 the BraÅŸov District Court reopened the divorce and custody proceedings and allowed the parties to submit evidence.

At the hearing of 2 September 2011 the applicant raised a preliminary objection arguing that according to the Hague Convention the Romanian courts did not retain jurisdiction in respect of divorce and custody proceedings as a similar action was pending before the U.S. courts. In addition, the children ’ s habitual residence prior to their unlawful removal was in the U.S. Consequently, the courts in the U.S. retained jurisdiction in respect of child custody matters. Lastly, the U.S. courts had issued an injunction forbidding the removal of the children from their jurisdiction. By an interlocutory judgment delivered the same day the Braşov District Court dismissed the applicant ’ s preliminary objection. It held that according to the relevant domestic legislation the Romanian courts held jurisdiction in respect of proceedings concerning divorce and custody matters opened by Romanian citizens living abroad. The applicant, his wife and their children were Romanian citizens and their civil status papers had been registered in Romania . In addition the Romanian courts had dismissed the applicant ’ s action seeking the return to the U.S. of his unlawfully removed children. Also, the children had been residing in Romania with their mother since September 2008 and were well adapted to their new living situation. Consequently, under the Hague Convention the U.S. courts stopped retaining jurisdiction from the moment the children ’ s habitual residence was settled in Romania , that is after the Romanian courts dismissed the applicant ’ s request for the return of his children.

By an interlocutory judgment of 30 September 2011 the BraÅŸov District Court ordered that the separate set of proceedings opened by D.B. against the applicant seeking an injunction for the applicant to agree to the children being issued a Romanian passport and to them leaving Romania was joined to the divorce and custody proceedings.

By an interlocutory judgment of 21 November 2011 the Braşov District Court dismissed the applicant ’ s preliminary objection concerning the Romanian courts ’ lack of jurisdiction in respect of the proceedings regarding the injunction requested by D.B. on the ground that the said proceedings were subsidiary to the divorce and custody proceedings and the court had already judged the Romanian courts to have jurisdiction in matrimonial and custody matters. In addition the court reiterated its arguments relied on in the interlocutory judgment of 2 September 2011. In addition it dismissed the applicant ’ s action seeking the suspension of the proceedings before the Romanian courts pending the outcome of the divorce proceedings opened by the applicant against D.B. before the U.S. courts. It held that the court has already judged that the Romanian courts held jurisdiction in respect of the proceedings the applicant was party to and the Supreme Court of the Forsyth County in the U.S. was aware of the said decision.

The proceedings are still pending before the first instance court.

B. Relevant domestic and international law

Excerpts from the relevant parts of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction are given in Karrer v. Romania (no. 16965/10, § 20, 21 February 2012).

COMPLAINTS

1. Relying on Article 6 of the Convention, the applicant complains of the unfairness of the Hague Convention proceedings, in so far as the interlocutory judgment of 13 April 2009 was missing from the file and the domestic authorities failed to send him a copy of the final judgment of 25 March 2010. He also claims in this respect that the proceedings were excessively lengthy and that the courts failed to provide sufficient reasons for ignoring the injunctions delivered by the U.S. courts and the documents submitted by the U.S. authorities.

2. Relying on Articles 8, 14, 17, 18, 1 of Protocol No. 12 and 5 of Protocol No. 7 to the Convention the applicant complains that by dismissing the Hague Convention proceedings the Romanian courts have breached his right to family life, have discriminated him and placed him at a substantial disadvantage vis-à-vis his wife. In particular, they wrongfully interpreted the provisions of the Hague Convention and relied exclusively on the children ’ s opinion to deny him their return to the U.S. Also, they failed to provide sufficient reasons for ignoring the injunctions delivered by the U.S. courts and the documents submitted by the U.S. authorities. In addition, the length of the proceedings prevented him from exercising his parental rights as the children remained under their mother ’ s control. He incurred much higher legal costs compared to the children ’ s mother and the jurisdiction on custody matters was de facto transferred to the courts in the State of refuge in breach of the Hague Convention ’ s provisions.

3. Lastly, the applicant complains under Article 6 of the Convention about the length of the divorce and custody proceedings.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicant ’ s right to respect for his family life, within the meaning of Article 8 § 1 of the Convention following the Hague Convention proceedings conducted before the Romanian courts which ended by the final judgment of 25 March 2010?

If so, was that interference in accordance with the law and necessary within the meaning of Article 8 § 2?

2. Was the length of the custody and divorce proceedings brought against the applicant on 14 October 2008 by his wife in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?