PARTLY DI SSENTING OPINION OF JUDGE LÓPEZ GUERRA JOINED BY JUDGE MOTOC

I agree with the Chamber ’ s finding concerning the violation of Article 6 § 1 of the Convention based on the excessive length of the divorce and custody proceedings instituted against the applicant by his wife (point 3 of the operative provisions ). However, I do not share the Chamber ’ s opinion concerning a violation of Article 8 of the Convention on the basis of the provisions of the Hague Convention (point 2). As I see it, the Chamber ’ s reasoning and final decision on the issue deal with matters which should be left to the consideration of the domestic courts, which were in a much better position to assess directly the individual characteristics of this case.

Indeed, from a substantive point of view this Court is not in a position to criticize the Romanian courts ’ interpretation and application of Article 13 § 2 of the Hague Convention in this case. Accepting that there was an interference in the applicant ’ s right to family life, it is clear that such interference was based on law, since the Hague Convention, which entered into force in Romania in September 1992 ( see paragraph 72 of the judgment ), must be considered as a part of that country ’ s domestic law. The Romanian courts applied that law , taking the evidence that they examined into account in an immediate and direct way. They relied on different types of evidence: a private report ( paragraph 15), an official report prepared by the Brasov Guardianship Authority ( paragraph 17) and testimony by the applicant ’ s children ( paragraph 20). As a result, the Romanian courts (the Bucharest County Court initially, and the Bucharest Appeals Court in a final decision) ruled that the best interests of the children would be better protected if the applicant ’ s action w ere dismissed, and the children were allowed to remain in Romania. The reasoning of both the County Court and the Court of Appeal was extended and detailed ( see paragraphs 20 and 31), and explicitly assessed the credibility and reliability of the children ’ s testimony, given their youth (nine-year old twins and an eleven-year old sister). Furthermore, it must be s tated that this is also the approach followed by Council Regulation (EC) 2201/2003, concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibilities, Art icle 11 of which states that “When applying Articles 12 and 13 of the Hague Convention, it shall be e nsured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity”.

Based on that evidence , the Romanian Courts concluded that Article 13 § 2 of the Hague Convention, which provid es that children should not be returned to a requesting State if the competent authorities find “that the child objects to being returned and has attained the age and degree of maturity at which it is appropriate to take account of his views”, and as interpreted in Elisa Pérez Vera ’ s E xplanatory R eport, was applicable in this case. They concluded that the return of the children would be detriment al to their psychological equilibrium, and would have subjected them to pressures which could have affected negatively their future development ( see paragraph 34).

In such a delicate matter I do not see how this Court, without having any direct means to assess the circumstances and testimonies of the children and parties, can substitute its own opinion for the decisions of the courts which examined the case, furthermore declaring that this Court “is not entirely convinced that the domestic courts had sufficiently balanced the applicant ’ s interests of a right to family life against the competing interests of the other parties [to] the case” ( see paragraph 81). On the contrary, the facts of the case show that the Romanian courts did indeed carefully assess the balance of interests at stake. It is always possible to propose or suggest additional and alternative elements to those present in the domestic courts ’ rulings. But the question here was whether those courts took the relevant facts of the case into account (such as the psychological reports and the testimonies of the children) and whether, in view of those facts, they reached a decision and explained it in a rational and non-arbitrary way. S ince they did, and since this Court lacks any means for directly assessing those elements, I do not believe that this Court can deem the Romanian courts ’ determination of what constituted the best interest of the children as “unsatisfactory”.

The second reason given in the Chamber ’ s judgment to support its finding of a violation of Article 8 is the time which elapsed from the date on which the applicant lodged his request for the return of the children to the date on which the final decision was adopted ( see paragraph 83). But here, once again, I do not find that the duration of the proceedings violated that Convention provision. The entire proceedings lasted eleven months. Yet the initial judgment of the Bucharest County Court was given less than two months after the Romanian Minister of Justice instituted proceedings on behalf of the applicant. Moreover, the substantive content of that judgment , dismissing the applicant ’ s petition , was ultimately upheld by the Bucharest Court of Appeal after the applicant ’ s two appeals. Given this circumstance and the importance of the matter , the length of the proceedings was not excessively long. Furthermore, the proceedings were further extended by the fact that the Romanian legal system allowed the applicant to resort to internal remedies to defend his position against the initial decision denying his petition.

Since the task of this Court is to apply and interpret the provisions of the European Convention on Human Rights (Art icle 32 § 1), it has repeatedly stated that States ’ obligations are to be interpreted in harmony with the general principles of international law and that, in connection with Article 8, particular weight must be attached to the provisions of the Hague Convention. In view of Article 11 of the Hague Convention , a provision which stat es that “the judicial and administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children”, and for the reasons set out above , the Chamber ought to have ruled that the Romanian Courts acted with the required rigo u r and expedience , and thus fulfilled their obligations under Article 8 of the Convention.