Iosub Caras and another v Romania
| Judge | JUDGE ZUPANCIC (PRESIDENT),JUDGES HEDIGAN,CAFLISCH,BIRSAN,GYULUMYAN,MYJER AND THOR BJORGVINSSON,MR R LIDDELL (SECTION REGISTRAR) |
| Judgment Date | 27 July 2006 |
Human rights – Private and family life – Custody proceedings – First applicant bringing proceedings under Hague Convention on the Civil Aspects of International Child Abduction – Romanian authorities failing to notify divorce court of Hague Convention proceedings – Whether violation of right to family life – Whether applicants entitled to just satisfaction for non-pecuniary loss – European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, art 8.
The first applicant and his wife (the mother) were both dual Romanian and Israeli nationals. Israel was their permanent place of residence since 1997. Their child, the second applicant, was born in Israel. In September 2001, the family visited Romania. Only the first applicant returned to Israel. The mother and child remained in Romania. The first applicant subsequently filed a request in Israel for the return of the child under the Hague Convention on the Civil Aspects of International Child Abduction. That request was submitted to the Romanian Ministry of Justice. Meanwhile, the mother issued divorce proceedings in Romania. The first applicant asked the ministry to ask for a stay in the divorce proceedings. In January 2002, the ministry, acting on the applicant’s behalf, instituted proceedings in the Romanian court. The court found that the retention of the child in Romania was illegal under the Hague Convention, but went on to find that due to the political situation in Israel, there was a great risk that the return of the child would expose her to physical or psychological harm. The court therefore rejected the request for the return of the child. In December 2002, the ministry’s appeal against that decision was allowed, and the return of the child was ordered. The mother appealed against that decision. That appeal was allowed in June 2003, on the basis that a different Romanian court had, in the divorce proceedings, granted the mother sole custody of the child. The child therefore remained in Romania. The applicants complained to the European Convention on Human Rights, inter alia, that their right to family life had been violated contrary to art 8 of the European Convention on Human Rights. In particular, it was said that the Romanian courts had ignored the Hague Convention scheme in so far as arts 16 and 17 of that Convention provided that no decision on the merits of the custody matter could be taken when the Hague Convention proceedings were pending. The applicant also sought just satisfaction for non-pecuniary loss pursuant to art 41 of the Convention.
Held – The positive obligations on contracting states imposed by art 8 included taking measures to ensure a parent’s unification with his child. In the instant case, by failing to inform the divorce courts of the existence of the Hague Convention proceedings the authorities had deprived the Hague Convention of its very purpose; namely to prevent a decision on the merits of the right to custody being taken in the state of refuge. Moreover, it was of concern that the domestic court had based its ruling in the Hague Convention proceedings, inter alia, on the fact that custody rights had been decided on their merits in the divorce proceedings. Further, the time which it had taken the domestic court to determine the Hague Convention proceedings had failed to meet the urgency of the situation. There had, accordingly, been a violation of art 8 of the Convention.
Cases referred to in judgmentCernecki v Austria App no 31061/96 (11 July 2000, unreported), ECt HR.
De Diego Nafria v Spain [2002] ECHR 46833/99, ECt HR.
Edwards v UK (2002) 35 EHRR 487, ECt HR.
Garcia Ruiz v Spain [1999] ECHR 30544/96, ECt HR.
Gil and AUI v Spain[2005] 1 FCR 210, ECt HR.
Glod v Romania [2003] ECHR 41134/98, ECt HR.
Hansen v Turkey[2003] 3 FCR 97, ECt HR.
Ignaccolo-Zenide v Romania [2000] ECHR 31679/96, ECt HR.
Maire v Portugal [2003] ECHR 48206/99, ECt HR.
McMichael v UK[1995] 2 FCR 718, ECt HR.
Monory v Romania and Hungary [2005] ECHR 71099/01, ECt HR.
Nuutinen v Finland [2000] ECHR 32842/96, ECt HR.
Scozzari v Italy[2000] 3 FCR 430, [2000] 2 FLR 771, ECt HR.
Sylvester v Austria[2003] 2 FCR 128, ECt HR.
W v UK (1987) 10 EHRR 29, [1987] ECHR 9749/82, ECt HR.
Winterwerp v Netherlands (1979) 2 EHRR 387, [1979] ECHR 6301/73, ECt HR.
ApplicationThe applicants, Andrei Dorian Iosub Caras and Iris Iosub Caras lodged an application with the European Court of Human Rights against Romania, concerning the right to respect for family life, access to a court and the protection of property to the government. The facts are set out in the judgment of the court.
27 July 2006. The European Court of Human Rights (Third Section) delivered the following judgment.
PROCEDURE1. The case originated in an application (no 7198/04) against Romania lodged with the court under art 34 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (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.
2. The applicants were represented by Mr A Nantel, a lawyer practising in Hod Hasharon, Israel. The Romanian government (the government) were represented by their agents, Mrs R Rizoiu succeeded by Mrs B Ramascanu from the Ministry of Foreign Affaires.
3. On 16 November 2004, the President of the third section decided, under r 41 of the rules of the court to give priority to the application.
4. On 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 art 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 case5. The first applicant was born in 1972 and lives in Petah Tikva, Israel. The second applicant, the daughter of the first applicant, was born in 2001. She currently lives in Romania.
6. The first applicant and his wife, both Romanian and Israeli citizens, have had their permanent residence in Israel since 1997. Their child Iris was born there, in 2001, and acquired Israeli citizenship from birth.
7. In September 2001, the family visited 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).
1. Proceedings for the return of the child8. On 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.
9. On 27 November 2001, he asked the Ministry to apply for a stay in the divorce proceedings (see infra, at paras 12–17), for as long as the Hague proceedings were pending.
10. On 11 January 2002, 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 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 art 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 art 13(b) of the Convention.
11. On 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.
12. On 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 seven 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.
2. Divorce and custody proceedings13. On 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.
14. The court found that, except for the first hearing, the first applicant had been correctly summoned at his address in Israel...
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