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You are here: BAILII >> Databases >> European Court of Human Rights >> RABAN v. ROMANIA - 25437/08 [2010] ECHR 1625 (26 October 2010) URL: http://www.bailii.org/eu/cases/ECHR/2010/1625.html Cite as: [2010] ECHR 1625 |
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THIRD SECTION
(Application no. 25437/08)
JUDGMENT
STRASBOURG
26 October 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Raban v. Romania,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Josep Casadevall,
President,
Elisabet Fura,
Corneliu
Bîrsan,
Boštjan M. Zupančič,
Egbert
Myjer,
Ineta Ziemele,
Luis López Guerra,
judges,
and Santiago Quesada,
Section Registrar,
Having deliberated in private on 5 October 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
The Dutch Government, to whom a copy of the application was transmitted under Rule 44 § 1 (a) of the Rules of Court, did not exercise their right to intervene in the proceedings.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
However, they never returned to Israel; on 3 November 2006, A.R.'s mother informed the first applicant that A.R. and the children would remain in Romania.
A. Proceedings for the return of the children lodged under the Hague Convention
On 14 February 2007 the Ministry, acting as the Central Authority for the purpose of the Hague Convention, instituted proceedings on behalf of the first applicant before the Bucharest District Court of the Fourth Precinct.
The defence raised by A.R. under Article 13 § 1 b) of the Hague Convention was also dismissed by the court; it considered that the “state of insecurity” invoked and the “general threat of terrorist attacks” arising in Israel had not proved to be an obstacle to the family living in Israel for more than five years prior to the children's removal, and could not be regarded as having developed to a dangerous degree at that time. The court ordered that the children be returned to their habitual residence in Israel no later than three weeks after the judgment became final.
The majority's decision was based on two conclusions: firstly, that Article 3 of the Hague Convention was not applicable to the case, in so far as the children, Romanian citizens, had left Israel and remained in Romania upon the agreement of the parents; secondly, that in any event, the exception provided for by Article 13 1 b) of the Convention was substantiated, as it had been proved that, if returned to Israel, the children would risk exposure to physical or psychological harm.
The court further held that the first applicant had not proved that he had maintained contact with his children; in the file there was only evidence of one visit paid by the first applicant to his children, on 3 October 2007; the phone calls allegedly made by the first applicant to his children in Romania had been made from the house of the first applicant's mother, which was interpreted as meaning that the conversations had been between the children and their paternal grandmother.
Hence, the agreement between the spouses regarding the children remaining in Romania proved to be real and such an agreement could by no means be regarded as breaching Article 3 of the Hague Convention.
In a dissenting opinion to the judgment, Judge H.M. underlined that the above-mentioned documents “did not actually refer specifically to Bat Hefer, but to other regions of Israel”.
B. Divorce and custody proceedings lodged under Romanian law
He also lodged counterclaims asking the courts to either grant him full custody of the two children, or to order their return to their habitual residence in Israel.
Based on the conclusions of a social enquiry report on the children's concrete situation, which held that they were well taken care of and benefited from a good standard of living, and taking into consideration their ages (5 and 4, at that time), the court awarded custody of the children to the mother. The court found that it was in their best interest to remain with their mother, her care and presence being a psychological factor which was absolutely essential for their intellectual, moral and physical development.
In the absence of any proof regarding the first applicant's employment and/or income, the court referred to the national minimum wage scale and ordered him to pay monthly maintenance in the amount of 90 RON in respect of each child, starting on 6 March 2007 and until they reached the age of majority.
Neither the first applicant, nor A.R. have lodged any appeals against this judgment, which thus became final and enforceable.
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW
The Hague Convention was ratified by Romania by Law no. 100 of 16 September 1992.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 AND 8 OF THE CONVENTION
Article 6 § 1
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Article 8
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
A. Admissibility
The Court notes that the complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
Merits
1. The parties' submissions
Moreover, on 19 December 2008 the domestic courts allowed the divorce claim lodged by A.R., giving her full custody of the two children (the second and third applicants).
The interference had a legal basis in the Hague Convention, namely in Article 13 § 1 b). The legitimate aim of the measure was the protection of the minors' rights and interests, in so far as, when giving the impugned judgment, the appellate court took into account the actual standard of living the children would have had if they returned to Israel to live with their father (see, mutatis mutandis, Bianchi v. Switzerland, no. 7548/04, §§ 78, 80, 22 June 2006).
The measure imposed was proportionate and necessary in a democratic society, with a view also to the fact that the Bucharest Court of Appeal found Article 3 of the Hague Convention not to be applicable to the circumstances of the case.
Furthermore, Article 12 of the Hague Convention provided that the courts could look into arguments regarding children's settlement in a new environment only if one year had passed between the date of the alleged abduction and the commencement of the proceedings under the Hague Convention. The applicant, however, had lodged his claims within one year of the abduction, which meant that the respective defence argument used by the domestic courts and by the Government was inadmissible.
Moreover, the applicant contended that under Article 17 of the Hague Convention, a subsequent custody decision could not constitute grounds for refusing a return, nor could the economic circumstances of the petitioner be such a ground.
2. The Court's assessment
(a) General principles
(i) The Convention cannot be interpreted in a vacuum, but, in accordance with Article 31 § 3 (c) of the Vienna Convention on the Law of Treaties (1969), account is to be taken of any relevant rules of international law applicable to the Contracting Parties (Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 90, ECHR 2001 II).
(ii) The positive obligations that Article 8 of the Convention imposes on the States with respect to reuniting parents with their children must therefore be interpreted in the light of the Convention on the Rights of the Child of 20 November 1989 and the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (Maire v. Portugal, no. 48206/99, § 72, ECHR 2003 VII and Ignaccolo-Zenide v. Romania, no. 31679/96, § 95, ECHR 2000 I).
(iii) the Court is competent to review the procedure followed by the domestic courts, in particular to ascertain whether those courts, in applying and interpreting the provisions of the Hague Convention, have secured the guarantees of the Convention and especially those of Article 8 (see, to that effect, Bianchi, cited above, § 92 and Carlson v. Switzerland, no. 49492/06, § 73, 6 November 2008).
(iv) In this area the decisive issue is whether a fair balance between the competing interests at stake – those of the child, of the two parents, and of public order – has been struck, within the margin of appreciation afforded to States in such matters (see Maumousseau and Washington v. France, no. 39388/05, § 62, ECHR 2007 XIII), bearing in mind, however, that the child's best interests must be the primary consideration (see, to that effect, Gnahoré v. France, no. 40031/98, § 59, ECHR 2000 IX).
(v) “The child's interests” are primarily considered to be the following two: to have his or her ties with his or her family maintained, unless it is proved that such ties are undesirable, and to have his or her development in a sound environment ensured (see, among many other authorities, Elsholz v. Germany [GC], no. 25735/94, § 50, ECHR 2000 VIII, and Maršálek v. the Czech Republic, no. 8153/04, § 71, 4 April 2006). The child's best interests, from a personal development perspective, will depend on a variety of individual circumstances, in particular his age and level of maturity, the presence or absence of his parents and his environment and experiences.
(vi) A child's return cannot be ordered automatically or mechanically when the Hague Convention is applicable, as is indicated by the recognition in that instrument of a number of exceptions to the obligation to return the child (see in particular Articles 12, 13 and 20), based on considerations concerning the actual person of the child and its environment, thus showing that it is for the court hearing the case to adopt an in concreto approach to it (see Maumousseau and Washington, cited above, § 72).
(vii) The task to assess those best interests in each individual case is thus primarily one for the domestic authorities, which often have the benefit of direct contact with the persons concerned. To that end they enjoy a certain margin of appreciation, which remains subject, however, to a European supervision whereby the Court reviews under the Convention the decisions that those authorities have taken in the exercise of that power (see, for example, Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299 A, and Kutzner v. Germany, no. 46544/99, §§ 65-66, ECHR 2002 I; see also Tiemann v. France and Germany (dec.), nos. 47457/99 and 47458/99, ECHR 2000 IV; Bianchi, cited above, § 92; and Carlson, cited above, § 69).
(vii) In addition, the Court must ensure that the decision-making process leading to the adoption of the impugned measures by the domestic court was fair and allowed those concerned to present their case fully (see Tiemann, cited above, and Eskinazi and Chelouche v. Turkey (dec.), no. 14600/05, ECHR 2005 XIII (extracts)). To that end the Court must ascertain whether the domestic courts conducted an in-depth examination of the entire family situation and of a whole series of factors, in particular of a factual, emotional, psychological, material and medical nature, and made a balanced and reasonable assessment of the respective interests of each person, with a constant concern for determining what the best solution would be for the abducted child in the context of an application for his return to his country of origin (see Maumousseau and Washington, cited above, § 74).
29. Moreover, as already stated in Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 164, ECHR 2009 ...:
“in line with the principle of subsidiarity, it is best for the facts of cases to be investigated and issues to be resolved in so far as possible at the domestic level. It is in the interests of the applicant, and the efficacy of the Convention system, that the domestic authorities, who are best placed to do so, act to put right any alleged breaches of the Convention”.
(b) Application of the general principles to the present case
In the present case, the children were born and raised in Israel, which should therefore be regarded as their “habitual residence” for the purposes of the Hague Convention. The first applicant and his wife exercised jointly, under Israeli law, parental responsibility and rights of custody over their children.
However, based on the evidence freely adduced in the domestic case-file, the appellate court found it to be proved that the first applicant had given his consent for the children's removal to and retention in Romania until the improvement of his financial situation, which rendered Article 3 of the Hague Convention inapplicable in such circumstances (see paragraph 12 above).
Evidence was included in the file on behalf of both parties to the proceedings. Relying on the documents submitted by the parties, on the psychological evaluation of the children, and on the testimonial statements in the file, the domestic court evaluated the factual circumstances of the case; it found that the father in fact gave his consent to the relocation, in so far as his financial situation was perilous; the court also found that the children were very well integrated into their new social environment and that they were well taken care of by their mother, it also having been established that the first applicant had not visited his children but on one occasion (paragraph 12) and that he had not sent them any money for support.
These findings were reiterated, mutatis mutandis, in the subsequent proceedings regarding divorce and custody matters (see the conclusions of the domestic court summarized in paragraph 19 above), and in this context it is to be noted that the first applicant has not in any way challenged the findings of the domestic court, nor has he formulated any civil action concerning his visiting rights or rights to have personal relations with his children.
No such clear evidence of arbitrariness appears in the present case; on the contrary, the appellate court has examined the case and given a judgment paying particular consideration to the principle of the paramount interests of the children– who were very young (3 and 2 respectively) at the time of their departure from Israel, and who now appeared to be very well integrated in the new environment (see, mutatis mutandis, Neulinger and Shuruk cited above, §§ 145, 148).
The Court finds therefore no imperative reason to depart from the domestic court's findings in the case (see also Iosub Caras, cited above, §37).
FOR THESE REASONS, THE COURT UNANIMOUSLY
Done in English, and notified in writing on 26 October 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
