Bajrami v Albania
| Judge | JUDGE BRATZA (PRESIDENT),JUDGES BONELLO,PELLONPAA,TRAJA,GARLICKI,MIJOVIC,AND SIKUTA,MR T L EARLY (SECTION REGISTRAR) |
| Judgment Date | 12 December 2006 |
Human rights – Private and family life – Whether national authority’s inefficiency in failing to take steps to reunite applicant with daughter in compliance with final decision breaching applicant’s right to respect for family life – Whether applicant entitled to just satisfaction in respect of non-pecuniary damage – European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, art 8.
The applicant lived in Kosovo. On 28 April 1993, he married FM, an Albanian national. The couple had a child, and subsequently separated in 1998. FM moved to Vlora, Albania, with the child. On 24 June 2003, the applicant brought divorce proceedings before the Vlora district court, and on 26 June, he requested the police to block the child’s passport in view of the fact that FM was planning to take her to Greece without his consent. FM took the child to Greece on 15 January 2004. On 4 February, the district court decreed the parties’ divorce and granted custody of the child to the applicant. On 19 March, the divorce and custody decisions became final. On 5 April, the district court issued a writ for the enforcement of the judgment of 4 February. On 13 July, the district bailiffs’ office informed the applicant that it was impossible to enforce the judgment as the child was not in Albania. On 15 August 2004 and 13 January 2005, the applicant applied to the Albanian Ministry of Justice to secure the return of his daughter. Between January and May 2005, the bailiffs went to FM’s home on three occasions. In May 2005, the bailffs were informed that FM and her daughter were not living in Athens. In July, the baliffs’ office informed the applicant that in order to comply with the bilateral agreement between Albania and Greece he had to introduce a request and specify the precise address of the child in Greece. The applicant sent numerous requests to the Albanian authorities, the Greek Embassy in Albania and the Ombudsperson of Kosovo in order to obtain assistance in obtaining the enforcement of the custody decision. On 22 August 2006, the government informed the registry that on 31 March, the Court of Appeal had repealed the custody judgment on the ground that FM had not been duly informed of the proceedings. The domestic court decided to send the case to the district court for a fresh examination. The applicant complained to the European Court of Human Rights that the inefficiency of the Albanian authorities in failing to take the necessary measures to reunite him with his daughter in compliance with a final decision had been incompatible with art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950.
Held – The essential object of art 8 was to protect the individual against arbitrary action by public authorities. There were in addition positive obligations inherent in effective ‘respect’ for family life. In relation to the state’s obligation to take positive measures, it had repeatedly been held that art 8 included a parent’s right to the taking of measures with a view to his being reunited with his child, and an obligation on the national authorities to facilitate such reunion. In cases concerning the enforcement of decisions in the sphere of family law, it had been held repeatedly that what was decisive was whether the national authorities had taken all necessary steps to facilitate the execution as could reasonably be demanded in the special circumstances of each case. The adequacy of a measure was to be judged by the swiftness of its implementation, as the passage of time could have irremediable consequences for relations between the child and the parent who did not live with him or her. The Convention had to be applied in accordance with the principles of international law, in particular with those relating to the international protection of human rights. The events in the instant case clearly amounted to an interference with the applicant’s right to respect for his family life, as the failure to enforce the custody decision impaired his enjoyment of his daughter’s company. Accordingly the court had to determine whether the national authorities took the necessary and adequate steps to facilitate the enforcement of the custody judgment of 4 February 2004. It had been valid and remained unenforced for approximately two years. The proceedings to enforce the decision had been pending since April 2004. It had only been in April 2005, more than one year after the adoption of the custody decision, that the bailiffs had requested the police to transmit information to them about the whereabouts of FM and her daughter. While those attempts to enforce the decision all took place within a period of four months in 2005, the same diligence could not be observed in relation to the crucial period immediately following the custody decision. It was not until January 2005 that the bailiffs began to investigate the whereabouts of FM, and no steps had been taken after May 2005. No satisfactory explanation had been put forward to justify those delays. Similarly no explanation had been provided for the total inactivity of the authorities once they had ascertained that FM was living in Greece. The wide range of legislative measures that had been implemented by the Albanian government in order to comply with the rule of law as well as European and international treaties did not include any effective measure for securing the reunion of parents with their children in a situation such as the applicant’s. In particular, there was no specific remedy to prevent or punish cases of abduction of children from the territory of Albania. Albania had not signed up to the Hague Convention and it had not yet implemented the United Nations Convention on the Rights of the Child of 20 November 1989. The European Convention on Human Rights did not impose on states the obligation to ratify international conventions. However, it did require them to take all necessary measures of their choosing to secure the individual’s rights guaranteed by art 8 of the Convention and in particular to secure the reunion of parents with their children in accordance with a final judgment of a domestic court. Irrespective of the non-ratification by Albania of relevant international instruments in this area, the Albanian legal system had not provided any alternative framework affording the applicant the practical and effective protection that was required by the state’s positive obligation enshrined in art 8 of the Convention. In the instant case the efforts of the Albanian authorities had been neither adequate nor effective to discharge their positive obligation under art 8. There had, accordingly, been a violation of art 8 of the Convention; Ignaccolo-Zenide v Romania [2004] ECHR 31679/96 considered.
Cases referred to in judgmentAkdivar v Turkey (1996) 23 EHRR 143, [1996] ECHR 21893/93, ECt HR.
Al-Adsani v UK (2001) 12 BHRC 88, ECt HR.
BC v Slovakia [2006] ECHR 11079/02, ECt HR.
Elsholz v Germany[2000] 3 FCR 385, ECt HR.
Gil and AUI v Spain[2005] 1 FCR 210, ECt HR.
Hentrich v France (1994) 18 EHRR 440, [1994] ECHR 13616/88, ECt HR.
Hokkanen v Finland[1995] 2 FCR 320, [1996] 1 FLR 289, ECt HR.
Ignaccolo-Zenide v Romania [2000] ECHR 31679/96, ECt HR.
Keegan v Ireland (1994) 18 EHRR 342, [1994] ECHR 16969/90, ECt HR.
Kutzner v Germany[2003] 1 FCR 249, ECt HR.
McMichael v UK (1995) 20 EHRR 205, [1995] EHRC 16424/90, ECt HR.
Nuutinen v Finland [2000] ECHR 32842/96, ECt HR.
Perez v France [2004] ECHR 47287/99, ECt HR.
Qufaj Co Shpk v Albania [2004] ECHR 54268/00, ECt HR.
Remli v France (1996) 22 EHRR 253, [1996] ECHR 16839/90, ECt HR.
Streletz, Kessler and Krenz v Germany [2001] ECHR 34044/96, ECt HR.
Sylvester v Austria[2003] 2 FCR 128, ECt HR.
Vernillo v France (1991) 13 EHRR 880, [1991] ECHR 11889/85, ECt HR.
X v Germany App no 7116/75 (1976) 7 DR 91, E Com HR.
ApplicationThe applicant, Agim Bajrami, lodged an application against the Republic of Albania with the European Court of Human Rights, complaining that the inefficiency of the Albanian authorities in failing to take the necessary measures to reunite him with his daughter in compliance with a final decision had been incompatible with art 8 of the European Convention on Human Rights. The facts are set out in the judgment of the court.
12 December 2006. The European Court of Human Rights delivered the following judgment.
PROCEDURE1. The case originated in an...
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