PARTLY DISSENTING OPINION OF JUDGE SAJÓ

1. While I agree with my colleagues in respect of the responsibility of Bulgaria, to my regret I have to dissent in so far as the finding of a violation concerns Romania.

2. The custody proceedings in Romania lasted sixteen months and the judgment of the court of first instance was quashed because the respondent was not properly summoned. The applicant had failed to provide the proper address for the respondent. The second stage of the custody proceedings lasted twenty-three months at two levels of jurisdiction. Some of the delays in that procedure were caused by the applicant (improper authorisation to bring the child to a hearing from Bulgaria to Romania), and translation needs added to some extent to the length of the proceedings. The litigation concerned full custody: the mother already had custody and was entitled, in principle, to maintain relations with her child. Moreover, she failed to use the appropriate legal means to have her rights effectively protected (she did not avail herself of the recourse available under the Hague Convention). Given these considerations I see no reason for special celerity in this case. Otherwise, proceedings lasting slightly less than two years at two levels of jurisdiction cannot be considered excessive, especially given that the child and the father were abroad and some of documents needed translation.

3. In its finding of excessive length, the Court relies on Eberhard and M. v. Slovenia (nos. 8673/05 and 9733/05, 1 December 2009). That case does not lend much support to the conclusions of the present judgment. First, the stake (the intensity of the interference by a private party in parental rights) was higher: it concerned an application for custody and a denial of contact. In the present case the applicant had custody (shared) and there was no issue of denial of contact (except that the applicant should have attempted that in Bulgaria). The Slovenian court proceedings at issue lasted for more than four years and six months and this cannot be considered comparable to a period of less than two years. Finally the father in the present case, contrary to the mother in Eberhard , did not delay the proceedings.

4. I find it particularly troubling that the Court found against the Romanian authorities to the effect that they did their utmost to secure respect for the father ’ s procedural rights while allegedly totally disregarding the best interests of the child. The best interests of the child cannot become a talismanic trump-right. This Court is not in a position to determine what the best interests of the child would have been. It has no factual grounds on which to say that the child would have been better served if not separated from the primary caregiver, even in disregard of due process. De facto , during the proceedings which started two years after the abduction, the grandparents were the primary caregivers and it cannot be held, in the name of the best interests of the child, that the respondent in the first set of proceedings should not have been duly summoned. The best interests of the child must be determined in harmony with parental rights and cannot be a ground to disregard the rule of law.