ÎCCJ, decizie (scj.ro #86432)

ÎCCJ, decizie (scj.ro #86432) (Înalta Curte de Casație și Justiție)

COUR EUROPÉENE DES

DROITS DE L’HOMME

EUROPEAN COURT OF

HUMAN RIGHTS

THIRD SECTION

CASE OF

IOSUB CARAS

v.

ROMANIA

(Application no.

7198/04)

JUDGMENT

STRASBOURG

27 July

2006

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 Iosub Caras v.

Romania

,

The European Court of Human Rights (Third Section), sitting as a

Chamber composed of:

Mr

B.M.

Zupančič

,

President

,

Mr

J.

Hedigan

,

Mr

L.

Caflisch

,

Mr

C.

Bîrsan

,

Mrs

A.

Gyulumyan

,

Mr

E.

Myjer

,

Mr

David Thór

Björgvinsson,

judges

,

and Mr

R.

Liddell

,

Section Registrar

,

Having deliberated in private on

6 July 2006

,

Delivers the following judgment, which was adopted on that

date:

PROCEDURE

7198/04) against

Romania

lodged with the Court under Article 34 of the

Convention for the Protection of Human Rights and Fundamental Freedoms (“the

Convention”) by two Israeli and Romanian nationals, Mr Andrei Dorian Iosub

Caras (“the first applicant”) and Iris Iosub Caras (“the second applicant”), on

28 November 2003

.

Nantel, a lawyer practising in Hod Hasharon, Israël. The Romanian Government

(“the Government”) were represented by their Agents, Mrs R. Rizoiu

succeeded by Mrs B. Rămășcanu from the Ministry of

Foreign Affaires.

16

November 2004

, the President of the Third Section decided, under Rule 41 of

the Rules of the Court to give priority to the application.

25 May

2005

the Court (the Third Section) decided to communicate the

complaints concerning the right to respect for family life, access to a court

and the protection of property to the Government. Under the provisions of

Article 29 § 3 of the Convention, it decided to examine the merits of the

application at the same time as its admissibility.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

lives in

Petah Tikva

,

Israel

. The second applicant,

the daughter of the first applicant, was born in 2001. She currently lives in

Romania

.

Romanian and Israeli citizens, have had their permanent residence in

Israel

since

citizenship from birth.

Romania

. On

11 October 2001

, the date

scheduled for the return of the family to

Israel

, only the first

applicant left, while the wife and the second applicant remained in

Romania

.

Subsequently, the first applicant filed for the return of

the child, under the Hague Convention (proceedings described under no. 1

below), while the wife filed for divorce and custody of the child with the

Romanian courts (proceedings described under no. 2 below).

22

November 2001

, upon arrival in

Israel

, the father filed a

request for the return of his child under the Hague Convention of

25 October 1980

on the

civil aspects of international child abduction (“the Hague Convention”). The

request was submitted through the Israeli Ministry of Justice to the Romanian

Ministry of Justice (“the Ministry”) which received it on

26 November 2001

. The first

applicant claimed that his wife was wrongfully retaining their daughter in

Romania

, without

his consent. He also informed the Ministry that he had heard his wife had filed

for divorce with the Romanian courts.

27

November 2001

, he asked the Ministry to apply for a stay in the divorce proceedings

(see

infra

, §§ 12-17), for as long as

the Hague

proceedings

were pending.

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 Sixth Precinct.

Based on the evidence adduced in the case, the district

court found that the retention of the child in

Romania

was

illegal, under Article 3 of the Hague Convention. However, it considered that,

due to the political situation in

Israel

, which had worsened

constantly since September 2000, there was a great risk that the return

would expose the child to physical or psychological harm. Therefore, in a

judgment of

15 April 2002

, the district court

rejected the request for the return of the child under Article 13 (b) of the

Convention.

17 December

2002

, the Bucharest County Court allowed the appeal lodged by the

Ministry and ordered the return of the child on the grounds that the retention

was illegal and that the mother had not proved the grave risk that the child

would be exposed to, if returned to her father.

21 February 2003

, the

mother filed an appeal against this decision, allowed by the Bucharest Court of

Appeal in a final decision of

5 June 2003

.

The court rejected the request for return on the ground

that, since the date of the commencement of the Hague proceedings, another

Romanian court had ruled on the divorce of the parents and had granted sole

custody of the child to the mother, in a final decision of 18 September 2002.

It also considered that, bearing in mind the child’s age,

namely two years and four months, her return would be against her interests in

so far as she had effectively been living in

Romania

, with her

mother, since she was 7 months old. Lastly, on the basis of witness

testimony, the court found it proved that the father had consented initially to

remain in

Romania

and to establish there the domicile for the

whole family.

Therefore, the court found that the child had legally

resided in

Romania

since

12 September 2001

.

10 October

2001

, the first applicant’s wife filed for divorce, custody of their

daughter and maintenance before the Bucharest District Court of the Sixth

Precinct.

hearing, the first applicant had been correctly summoned at his address in

Israel

through

the Ministry, as required by the Code of Civil Procedure. The first applicant

was not present at any of the four hearings held in the case.

18 September

2002

, as rectified on

6 November 2002

, the

district court granted divorce on the grounds of fault by the first applicant,

awarded the custody of the child to the mother and ordered the first applicant to

pay monthly maintenance of 824 American dollars for his daughter.

11

December 2002

the district court sent the judgment to the first applicant’s

address.

judgment became final.

he had not received any of the summonses sent to him or the judgment of

18 September

2002

. It appears that he did not appeal at any point against the

judgment.

II.  RELEVANT DOMESTIC AND INTERNATIONAL LAW

International Child Abduction

Article

3

“The removal or the retention of a

child is to be considered wrongful where

a) it

is in breach of rights of custody attributed to a person, an institution or any

other body, either jointly or alone, under the law of the State in which the

child was habitually resident immediately before the removal or retention; and

b) at

the time of removal or retention those rights were actually exercised, either

jointly or alone, or would have been so exercised but for the removal or

retention. (...)”

Article

7

“Central

Authorities shall co-operate with each other and promote co-operation amongst

the competent authorities in their respective States to secure the prompt

return of children and to achieve the other objects of this Convention.

In

particular, either directly or through any intermediary, they shall take all

appropriate measures -

a)  to

discover the whereabouts of a child who has been wrongfully removed or

retained;

b)  to

prevent further harm to the child or prejudice to interested parties by taking

or causing to be taken provisional measures;

c)  to

secure the voluntary return of the child or to bring about an amicable

resolution of the issues;

d)  to

exchange, where desirable, information relating to the social background of the

child;

e)  to

provide information of a general character as to the law of their State in

connection with the application of the Convention;

f)  to

initiate or facilitate the institution of judicial or administrative

proceedings with a view to obtaining the return of the child and, in a proper

case, to make arrangements for organizing o

r s

ecuring the effective exercise of

rights of access;

g)  where

the circumstances so require, to provide or facilitate the provision of legal

aid and advice, including the participation of legal counsel and advisers;

h)  to

provide such administrative arrangements as may be necessary and appropriate to

secure the safe return of the child;

i)  to

keep other each other informed with respect to the operation of this Convention

and, as far as possible, to eliminate any obstacles to its application.”

Article

11

“The

judicial or administrative authorities of Contracting States shall act

expeditiously in proceedings for the return of children.

If the

judicial or administrative authority concerned has not reached a decision

within six weeks from the date of commencement of the proceedings, the applicant

or the Central Authority of the requested State, on its own initiative or if

asked by the Central Authority of the requesting State, shall have the right to

request a statement of the reasons for the delay. If a reply is received by the

Central Authority of the requested State, that Authority shall transmit the

reply to the Central Authority of the requesting State, or to the applicant, as

the case may be.”

Article

12

“Where

a child has been wrongfully removed or retained in terms of Article 3 and, at

the date of the commencement of the proceedings before the judicial or

administrative authority of the Contracting State where the child is, a period

of less than one year has elapsed from the date of the wrongful removal or

retention, the authority concerned shall order the return of the child

forthwith.

The

judicial or administrative authority, even where the proceedings have been

commenced after the expiration of the period of one year referred to in the

preceding paragraph, shall also order the return of the child, unless it is

demonstrated that the child is now settled in its new environment.

Where

the judicial or administrative authority in the requested State has reason to

believe that the child has been taken to another State, it may stay the

proceedings or dismiss the application for the return of the child.”

Article

13

“Notwithstanding

the provisions of the preceding Article, the judicial or administrative

authority of the requested State is not bound to order the return of the child

if the person, institution or other body which opposes its return establishes

that

a)  the

person, institution or other body having the care of the person of the child

was not actually exercising the custody rights at the time of removal or

retention, or had consented to o

r s

ubsequently acquiesced in the removal of retention; or

b)  there

is a grave risk that his or her return would expose the child to physical or

psychological harm or otherwise place the child in an intolerable situation.

The

judicial or administrative authority may also refuse to order the return of the

child if it finds that the child objects to being returned and has attained an

age and degree of maturity at which it is appropriate to take account of its

views.

In

considering the circumstances referred to in this Article, the judicial and

administrative authorities shall take into account the information relating to

the social background of the child provided by the Central Authority or other

competent authority of the child’s habitual residence.”

Article

16

“After

receiving notice of a wrongful removal or retention of a child in the sense of

Article 3, the judicial or administrative authorities of the Contracting State

to which the child has been removed or in which it has been retained shall not

decide on the merits of rights of custody until it has been determined that the

child is not to be returned under this Convention or unless an application

under the Convention is not lodged within a reasonable time following receipt

of the notice.”

Article

17

“The

sole fact that a decision relating to custody has been given in or is entitled

to recognition in the requested State shall not be a ground for refusing to return

a child under this Convention, but the judicial or administrative authorities

of the requested State may take account of the reasons for that decision in

applying this Convention.”

Article

18

“The

provisions of this Chapter do not limit the power of a judicial or

administrative authority to order the return of the child at any time.”

Abduction Convention drafted by Elisa Pérez-Vera in 1980

Paragraph 121 of the Explanatory Report on the 1980 Hague

Convention comments on Article 16 of the Hague Convention as follows:

“This

article, so as to promote the realisation of the Convention’s objectives

regarding the return of the child, seeks to prevent a decision on the merits of

the right to custody being taken in the State of refuge.”

Article

87 § 8

“Unless

otherwise provided in a treaty, international convention o

r s

pecial law, persons who are abroad and

whose home address abroad is known shall be summoned to appear by registered

mail. Article 114

1

(4) applies accordingly...

In all

cases in which those who are abroad have a known representative in

Romania

, the latte

r s

hall be summoned...”

Article

114

1

“Persons

resident abroad... shall be informed [through the summons] of the obligation to

establish residence in

Romania

for the purpose of service of procedural acts. If they do not

comply with this requirement, service shall be effected by registered mail, the

proof that the letter was presented to a Romanian post office being sufficient

evidence that the summoning procedure was respected.”

Article

614

“The

parties [in divorce proceedings] shall be present before the courts ruling on

the merits, except where one of the spouses... resides abroad; in the latte

r s

ituation the parties may participate

through a representative.”

THE LAW

I.  PRELIMINARY OBJECTION

applicant was not entitled to lodge the application on behalf of the second

applicant, as he did not have custody of his daughter.

and recalled that he had lost custody of his child as a result of court

proceedings that had contravened the Hague Convention and recalled that prior

to the retention of the child, the two parents had had joint custody of their

child. Neither of them had superior parental rights over their daughter.

person who is not entitled under domestic law to represent another may

nevertheless, in certain circumstances, act before the Court in the name of the

other person. In particular, minors can apply to the Court even, or indeed

especially, if they are represented by a parent who is in conflict with the

authorities and criticises their decisions and conduct as not being consistent

with the rights guaranteed by the Convention. In such cases, the standing as

the natural parent suffices to afford him or her the necessary power to apply

to the Court on the child’s behalf, too, in order to protect the child’s

interests (see

Scozzari

and Giunta v. Italy

[GC], nos. 39221/98

and 41963/98, § 138, ECHR 2000-VIII,

Iglesias Gil et Urcera Iglesias v.

Spain

(dec.), no. 56673/00, 5 March 2002 and

Sylvester v. Austria

(dec.), nos. 36812/97 and 40104/98 (joined), 26 September 2002).

especially as the first applicant also contested the way in which the Romanian

courts had decided on the custody rights, which, in his view, had violated his

Article 8 rights.

first applicant has standing to act on his daughter’s behalf.

II.  ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

respect for their family life, as provided in Article 8 § 1 of the Convention,

had been violated by the courts that had dealt with both the Hague Convention and

the divorce proceedings. In particular, they claimed that the courts had

ignored the provisions of Articles 16 and 17 of the Hague Convention. According

to these Articles no decision on the merits of the custody matter could have been

taken as long as

the Hague

proceedings were pending and, at the same

time, the courts should not have been bound by a custody decision when

assessing the request for the return of the child. Furthermore, the authorities

had not acted expeditiously in the Hague proceedings.

In so far as the custody and divorce proceedings were concerned,

the first applicant contested the fact that he had been deprived of his

guardianship and visiting rights and of any possibility to participate in the

education of his daughter. The absence of any legal documents attesting to the

divorce had made it impossible for him to update the civil register, with the

risk of being accused of bigamy should he have tried to remarry. He considered

that the amount of alimony had been arbitrarily fixed by the courts. He could

not pay it and, therefore, risked being imprisoned for non respect of his

obligations, should he visit

Romania

. This prohibited him

from seeing his daughter and his parents who were still living in

Romania

.

Lastly, the first applicant complained, on behalf of his

daughter, of a violation of the child’s Article 8 rights by reason of the fact

that the two sets of proceedings that took place before the Romanian courts

deprived her of the right to see her father and her paternal grandparents and

thus to establish normal relations with them.

Article 8 reads as follows:

“1.  Everyone

has the right to respect for his private and family life, his home and his

correspondence.

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.”

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.

with the applicants’ family life caused by the Hague proceedings was in

accordance with the law, namely Article 13 (b) of the Hague Convention, and

recalled that, on the one hand, the right to return of the child was not

absolute and that, on the other hand, the domestic courts enjoyed wide margins

of appreciation when called upon to interpret and apply the domestic law. They

relied on authorities such as

Winterwerp v. the Netherlands

(judgment

of

24 October 1979

, Series A no. 33, p. 20, § 46),

Iglesias

Gil and A.U.I. v. Spain

(no. 56673/00, § 61, ECHR 2003‑V)

and

De Diego Nafría v. Spain

(no. 46833/99, § 39,

14 March

2002

).

Lastly, in so far as the divorce proceedings were concerned,

they claimed that according to Romanian law, it was in the child’s interest

that, in case of divorce, one of the parents was entrusted with the child’s

custody. However, the other parent, in this case the first applicant, preserved

the right to have personal ties with the child and to watch over her education.

They concluded that no breach of Article 8 had occurred in the

case.

particular they considered that the interference with their family life had not

been in accordance with the law or necessary in a democratic society. In their

view, the authorities had not acted expeditiously for the return of the child

and for the stay of the divorce proceedings, violating thus their obligations

under Article 7 of the Hague Convention.

ground that the relationship between the applicants comes within the sphere of

family life under Article 8 of the Convention.

parent and child of each other’s company constitutes a fundamental element of

family life and domestic measures hindering such enjoyment amount to an

interference with the right protected by Article 8 (see

Monory v.

Romania and Hungary

, no. 71099/01, § 70, 5 April 2005)

.

case, in so far as they give rise to the responsibility of the respondent

State, amounted to an interference with the applicants’ right to respect for their

family life, as it restricted the enjoyment of each other’s company.

there has been a breach of the applicants’ right to respect for their family

life.

Hague Convention

Court reiterates that, although the essential object of Article 8 is to protect

the individual against arbitrary action by the public authorities, there are in

addition positive obligations inherent in effective “respect” for family life.

However, the boundaries between the State’s positive and negative obligations

under this provision do not lend themselves to precise definition. The

applicable principles are nonetheless similar. In both contexts regard must be

had to the fair balance that has to be struck between the competing interests

of the individual and of the community as a whole, and in both contexts the

State enjoys a certain margin of appreciation

(see

Ignaccolo-Zenide

v. Romania

, no. 31679/96, § 94, ECHR 2000‑I

,

Iglesias Gil

and A.U.I.

, cited above, § 48 and

Sylvester v. Austria

,

no. 36812/97, 40104/98, § 51, 24 April 2003).

33.

The positive obligations imposed on States by

Article 8 include taking measures to ensure a parent’s reunification with his

or her child (see

Ignaccolo-Zenide

, cited above, § 94, and

Nuutinen

v. Finland

, no. 32842/96, § 127, ECHR 2000‑VIII). The Court has

already interpreted these positive obligations in the light of the Hague

Convention, Article 7 of which contains a non-exhaustive list of measures to be

taken by States in order to secure the prompt return of the child, including

the institution of judicial proceedings (see

Ignaccolo‑Zenide,

cited above, § 95). The same interpretation can be followed in the present

case in so far as, at the material time, Romania was party to the Hague

Convention (see

Monory

, cited above, § 73).

authorities have the obligation to take all necessary measures to prevent

further harm to the child or prejudice to the interested parties.

However, in the present case, although the authorities had

knowledge of the existence of the divorce proceedings before the Romanian

courts, they did nothing to defer the judgment until the Hague proceedings

would be finalised, contrary to Article 16 of the Hague Convention.

inform the district court dealing with the divorce and custody proceedings of

the Hague proceedings. However, the Court recalls that no law obliges him to do

so. Moreover, it was reasonable for him to expect the Ministry to take action

for at least the following two reasons: first, the Ministry was deemed to take

all measures, including extra judicial, on his behalf, to secure the respect of

the Hague Convention and, second, he expressly asked the Ministry to take the

necessary steps for a stay of the divorce proceedings (see paragraph 9 above).

On this point, the Court recalls that the Ministry acted both as

Central Authority under the Hague Convention and as the authority responsible for

the international summons procedure in the divorce proceedings. It therefore

had knowledge of and to a certain extent participated in both sets of

proceedings. Bearing in mind that the Hague Convention is an international

instrument binding on States, it is primarily for the States and not for the

private individuals to regulate their behaviour in such a way as to ensure

respect for this Convention.

existence of the Hague proceedings, the authorities, in particular the

Ministry, deprived the Hague Convention of its very purpose, that is to prevent

a decision on the merits of the right to custody being taken in the State of

refuge (see Article 16 of the Hague Convention and the annotation in the Explanatory

Report).

that the domestic courts ruling on

the Hague

proceedings based

their judgment, among other arguments, on the fact that the custody rights had

been decided on the merits, while

the Hague

proceedings were

still pending.

This was not the sole argument that led the national

jurisdiction to refuse to order the return of the child. The other arguments

put forward by the courts, namely the child’s best interest and the evidence

that the applicant had consented initially to remain in

Romania

, constitute

an interpretation of the facts and evidence adduced in the case that does not

appear to be arbitrary. With the Government, the Court recalls that it is not

within the province of the European Court to substitute its own assessment of

the facts for that of the domestic courts and, as a general rule, it is for

these courts to assess the evidence before them (see,

mutatis mutandis

,

Edwards v.

the United Kingdom

, judgment of 16 December 1992, Series A

no. 247‑B, pp. 34-35, § 34; and

García Ruiz v. Spain

[GC], no.

30544/96, § 28, ECHR 1999‑I).

of children with their parents, the adequacy of a measure is also to be judged

by the swiftness of its implementation, such cases requiring urgent handling,

as the passage of time can have irremediable consequences for the relations

between the children and the parent who does not live with them (see

Ignaccolo‑Zenide

,

cited above, § 102, and

Nuutinen

, cited above, § 110). Indeed, Article

11 of the Hague Convention imposes a six-week time-limit for the required

decision, failing which the decision body may be requested to give reasons for

the delay. Despite this recognised urgency, in the instant case a period of

more than eighteen months elapsed from the date on which the first applicant

lodged his request for the return of the child to the date of the final

decision. No satisfactory explanation was put forward by the Government for

this delay.

courts to adopt the final decision in the present case failed to meet the

urgency of the situation.

paragraphs 36 and 39 above, and notwithstanding the respondent States’ margin

of appreciation in the matter, the Court concludes that the Romanian

authorities failed to fulfil their positive obligations under Article 8 of the

Convention.

There has accordingly been a violation of that Article on

this account.

is a dispute between the parties as to whether the summoning procedure was

respected in the instant case. While the first applicant claimed that none of

the summonses had reached him, the Government contended that the documents had

been correctly sent to his address in

Israel

.

However, the Court has already held that whilst Article 8

contains no explicit procedural requirements, the decision-making process

leading to measures of interference must be fair and such as to afford due

respect to the interests safeguarded by Article 8:

“[W]hat

... has to be determined is whether, having regard to the particular

circumstances of the case and notably the serious nature of the decisions to be

taken, the parents have been involved in the decision-making process, seen as a

whole, to a degree sufficient to provide them with the requisite protection of

their interests. If they have not, there will have been a failure to respect

their family life and the interference resulting from the decision will not be

capable of being regarded as “necessary” within the meaning of Article 8.” (see

the ... W. v. the United Kingdom judgment [of 8 July 1987, Series A no.

121-A], pp. 28 and 29, §§ 62 and 64,

McMichael v. the United

Kingdom

,

judgment of 24 February 1995, Series A no. 307‑B, p. 55, § 87

and

Ignaccolo‑Zenide

, cited above, § 99).

The facts of the present case indicate that, although he had

knowledge, to a certain extent, of the existence of the divorce and custody

proceedings, the first applicant did not participate at all in these

proceedings and that the judgment of

18 September

2002

was never brought to his knowledge. Moreover, it seems very

unlikely, under Article 114

1

of the Code of Civil Procedure, that it

would have been possible for him to obtain a reopening of the case before the

national courts.

to resolve this matter as it has already found a violation of Article 8 in so

far as the respondent State’s positive obligations are concerned (see paragraph

40 above).

already found in the case (paragraph 40 above), the Court considers that it is

not necessary to examine the other aspects of the complaint raised by the applicants,

namely: lack of visiting rights and access of the daughter to her paternal

grandparents, impossibility for the first applicant to return to Romania and to

resolve his marital status in Israel.

III.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE

CONVENTION

a fair trial guaranteed by Article 6 § 1 of the Convention had been

infringed by the district court’s ruling on the divorce and custody matters, in

so far as he had not been legally summoned to participate in the proceedings

and the decision adopted had never been served on him.

On behalf of his daughter he also complained that the two sets

of proceedings that had taken place before the Romanian courts had deprived her

of her right to see her father and her paternal grandparents and thus to

establish normal relations with them.

relevant:

“In

the determination of his civil rights and obligations ..., everyone is entitled

to a fair ... hearing ... by [a] ... tribunal...”

considered that the first applicant had been legally served with the summonses

long before the hearings had taken place. Furthermore, they considered that the

fact that he had mentioned the divorce proceedings when he had filed the

application under the Hague Convention proved that he had been well aware of

their existence. In any event, the absence of a summons would not have

prohibited the applicant’s active participation in the proceedings.

the one examined above and must therefore likewise be declared admissible.

48

.  It

further reiterates the difference in the nature of the interests protected by

Articles 6 and 8 of the Convention. While Article 6 affords a procedural

safeguard, namely the “right to a court” in the determination of one’s “civil

rights and obligations”, Article 8 serves the wider purpose of ensuring proper

respect for,

inter alia

, family life.

The difference

between the purpose pursued by the respective safeguards afforded by Articles 6

and 8 may, in the light of the particular circumstances, justify the

examination of the same set of facts under both Articles (see for instance

McMichael

,

cited above, p. 57, § 91 and

Sylvester

, cited above, § 76).

49

.  However,

in the instant case, the Court finds that the lack of respect for the

applicants’ family life resulting from the non-involvement of the first

applicant in the divorce and custody proceedings is at the heart of their

complaint. Therefore, having regard to its above findings under Article 8 (see

paragraph

40 above) and notwithstanding certain misgivings as to the

conformity of Article 114

1

of the Code of Civil Procedure with the

access to court requirement of Article 6 § 1, the Court considers that it is

not necessary to examine the facts also under Article 6 (see

Sylvester

,

cited above, § 77).

IV.  ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1

Convention, the first applicant complained of the procedure by which the

alimony had been fixed, of the amount of alimony and of the fact that his

daughter had never received it. He also contended that the second applicant can

no longer receive benefits under the Israeli law.

“Every

natural or legal person is entitled to the peaceful enjoyment of his

possessions. No one shall be deprived of his possessions except in the public

interest and subject to the conditions provided for by law and by the general

principles of international law.

The

preceding provisions shall not, however, in any way impair the right of a State

to enforce such laws as it deems necessary to control the use of property in

accordance with the general interest or to secure the payment of taxes or other

contributions or penalties.”

with the first applicant’s right to peaceful enjoyment of his possessions had

occurred, in so far as Romanian law established a duty on the parents to

provide for their underage children. Lastly, they recalled that the second applicant,

through her legal guardian, had not requested the exequatur for the enforcement

in

Israel

of the judgment of

18 September

2002

.

the one examined under Article 8 above and must therefore likewise be declared

admissible.

paragraph 40 above) and in view of the fact that the alleged violation of

Article 1 of Protocol No. 1 is the direct outcome of the proceedings that gave

rise to the breach of Article 8 of the Convention, the Court considers that it

is not necessary to examine whether, in this case, there has also been a

violation of Article 1 (see,

mutatis mutandis

,

Sylvester

, cited

above, § 77; and

Glod v. Romania

, no. 41134/98, § 46,

16 September 2003

).

V.  ALLEGED VIOLATION OF ARTICLE 5 OF PROTOCOL NO. 7

aspects that caused a violation of his Article 8 rights also infringed the

equality between spouses requirement of Article 5 of Protocol No. 7 to the

Convention, which reads:

“Spouses

shall enjoy equality of rights and responsibilities of a private law character

between them, and in their relations with their children, as to marriage,

during marriage and in the event of its dissolution. This Article shall not

prevent States from taking such measures as are necessary in the interests of

the children.”

that Article 5 of Protocol No. 7 essentially imposes a positive obligation on

States to provide a satisfactory legal framework under which spouses have equal

rights and obligations concerning such matters as their relations with their

children (see

Cernecki v. Austria

, (dec.), no. 31061/96,

11 July

2000

).

question the legislative framework. His criticism only concerns the way in

which the national courts applied it. The Court finds no indication that the

law in question violates the equality clause provided for in Article 5 of

Protocol No. 7 (see also

Monory v. Romania

(dec.), no. 71099/01,

17 February 2004

).

ill-founded and must be rejected in accordance with Article 35 §§ 3

and 4 of the Convention.

VI.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

“If the Court finds that there has been

a violation of the Convention or the Protocols thereto, and if the internal law

of the High Contracting Party concerned allows only partial reparation to be

made, the Court shall, if necessary, afford just satisfaction to the injured

party.”

A.  Damage

in respect of non‑pecuniary damage, divided as follows: EUR 200,000

for violation of his civil status, EUR 500,000 for the impossibility to

exercise his parental rights and duties, EUR 195,000 for failure of the

Romanian courts to grant him visiting rights, EUR 180,000 for the impossibility

for him to preserve normal contact with his parents, EUR 80,000 in damages for

the abduction of the child and the need to reconstruct the father-daughter

relationship, EUR 200,000 for the anguish, distress, depression, loss of joy of

life and faith in the family life.

He further claimed under this head, on behalf of his daughter,

EUR 1,364,382, in particular: EUR 300,000 in damages for loss of the

Israeli medical care, EUR 9,382 for the monthly allowances that she should

have received from the Israeli state, EUR 500,000 for the infringement of

the right to enjoy the family life, EUR 195,000 for failure of the

Romanian courts to establish visiting rights for her father, EUR 80,000 for the

impossibility to see her paternal grandparents, EUR 180,000 of psychological

damages, EUR 100,000 for the anguish, distress, depression, loss of joy of life

and faith in the family life.

and excessive. In their view, there was no causal link between the alleged violations

and the damages claimed. They considered that the finding of a violation could constitute

in itself sufficient just satisfaction for any non-pecuniary damage which the

applicants may have suffered.

applicants suffered distress as a result of the impossibility to enjoy each

other’s company. It considers that, in so far as the first applicant is

concerned, sufficient just satisfaction would not be provided solely by a

finding of a violation. Having regard to the sums awarded in comparable cases (see

Ignaccolo-Zenide

, §117;

Sylvester

, § 84;

Iglesias Gil and

A.U.I.

, § 67, and

Monory,

Sophia Gudrun

Hansen v. Turkey

, no. 36141/97, § 115, 23 September 2003, as well

as

Maire v. Portugal

,

no. 48206/99, § 82,

ECHR 2003‑VII

), and making an assessment on an equitable basis as

required by Article 41, the Court awards the first applicant EUR 20,000 under

this head.

As to the second applicant, the Court considers that the finding

of a violation provides sufficient just satisfaction for any non-pecuniary

damage she may have suffered as a result of the violation of her Article 8

rights (see

Sylvester

, cited above, § 80).

Lastly, the Court considers that the remainder of the claims for

compensation under Article 41 of the Convention are unsubstantiated.

B.  Costs and expenses

for the costs and expenses incurred before the domestic courts and before the

Court, namely EUR 61,500 for the costs incurred with doctors, psychologists,

groups of support, EUR 60,000 in legal fees for lawyers and EUR 20,000 for

plane tickets, phone calls and telecommunications. On behalf of his daughter,

he asked the Court to award a reasonable sum in legal fees for lawyers, leaving

the exact amount at the Court’s discretion.

did not justify the expenses.

applicant is entitled to reimbursement of his costs and expenses only in so far

as it has been shown that these have been actually and necessarily incurred and

were reasonable as to quantum. The applicants submitted the claims without any

supporting documents except for a letter of

2 August

2005

, in which the representative asked the first applicant to pay

EUR 47,000 and 6,750 Swiss francs in respect of the application submitted to

the Court. However, no bill was submitted to the Court concerning these sums or

any othe

r s

um that the first applicant might have paid or have to

pay. Therefore the full claim cannot be awarded. Nevertheless, the Court accepts

that the first applicant must have incurred some legal costs and expenses.

Accordingly, regard being had to the information in its possession, the above

criteria and the awards made by the Court in similar cases, it considers it

reasonable to make an award of EUR 1,500 in this respect to the first

applicant.

C.  Default interest

default interest should be based on the marginal lending rate of the European

Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.

Declares

the complaints concerning the

right to respect for family life, access to court and the peaceful enjoyment of

possessions admissible and the remainder of the application inadmissible;

2.

Holds

that there has been a violation of

Article 8 of the Convention;

3.

Holds

that there is no need to examine the

complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No.

1;

4.

Holds

(a)  that the respondent State is to pay the first

applicant, within three months from the date on which the judgment becomes

final in accordance with Article 44 § 2 of the Convention, EUR 20,000

(twenty thousand euros) in respect of non-pecuniary damage and EUR 1,500

(one thousand five hundred euros) in respect of costs and expenses, plus any

tax that may be chargeable;

(b)  that from the expiry of the above-mentioned three

months until settlement simple interest shall be payable on the above amounts

at a rate equal to the marginal lending rate of the European Central Bank

during the default period plus three percentage points;

5.

Dismisses

the remainder of the applicants’

claim for just satisfaction.

Done in English, and notified in writing on

27 July 2006

, pursuant

to Rule 77 §§ 2 and 3 of the Rules of Court.

Roderick

Liddell

Boštjan

M.

Zupančič

Section Registrar                                                                   President