DISSENTING OPINION OF JUDGE ZIEMELE

1. I could not join the majority in its finding of no violation of Article 8 in this case. In my view the main question was whether the Romanian State has established an appropriate and effective system of institutions and procedures for the protection of the right to family life. I have serious doubts as to the existence of such a system.

2. I agree with the majority that the positive obligation under Article 8 in cases about implementing the visiting rights of one of the parents is not one of result but one of means. This does not, however, mean that the Court should not examine the effectiveness of the relevant institutions and available procedures. On the contrary, the underlying principle of the Convention that human rights should be respected not only in theory but also in practice requires the Court to examine these procedures and to see whether they form a coherent system able to provide protection not only in theory but also in practice.

3. It is quite obvious on the facts of the case that the execution of a judgment granting the applicant visiting rights through a common enforcement procedure via the bailiff did not work. On the contrary, it turned out to take time, which in cases involving a child usually plays against the interests of the child and the estranged parent. It was also costly for the applicant. I note that the bailiff can only act at the applicant ' s request and that he submitted such a request several times. The fact that none of the applicant ' s attempts to see the child in the presence of the bailiff materialised shows that such a procedure, at least if applied alone, is ill-suited for the complex matters surrounding family problems.

4. The majority reproached the applicant for not using the assistance of the social services and for giving up using the bailiff ' s services. The Court has held in its case-law concerning the obligation to return a child that “the understanding and cooperation of all concerned are always an important ingredient” ( Ignaccolo-Zenide v. Romania , no. 31679/96, § 94 , ECHR 2000 ‑ I ). “ In addition, when difficulties appear, mainly as a result of a refusal by the parent with whom the child lives to comply with the decision [ ... ], the appropriate authorities should then impose adequate sanctions in respect of this lack of cooperation and, whilst coercive measures against children are not desirable in this sensitive area, the use of sanctions must not be ruled out in the event of manifestly unlawful behaviour by the parent with whom the child lives” ( Maumousseau and Washington v. France , no. 39388/05, § 83, ECHR 2007 ‑ XIII ). These principles are equally applicable where the enforcement of a judgment granting visiting rights is concerned.

5. I note that in similar cases against Romania it has been established that the social services have not been particularly effective in facilitating the execution of a judgment either ( Amanalachioai v. Romania , no. 4023/04, § 95, 26 May 2009). It seems that what is missing is indeed a certain co-operation between the various institutions with the aim of achieving the execution of a court ' s judgment in Article 8 cases. The lack of a coherent system of institutions and procedures is not the fault of the applicant. I could agree with the majority that in the absence of relevant attempts on the part of the applicant to involve these services in dealing with his problem, the Court is placed in a difficult position, since it has to engage in a degree of speculation as to whether the ineffectiveness and lack of diligence it has established on other occasions can be said to apply in the case before it here. But even then, I would see more a problem of exhaustion of domestic remedies than a clear case of non-violation of Article 8.