Deak v. Romania and the United Kingdom, Application No. 19055/05, (2008) 47 E.H.R.R. 50

INCADAT legal file Hague parental abduction

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European Convention on Human Rights (ECHR)
Article 8 Right to Family Life The father alleged that his right to family life under Article 8 of the Convention had been breached because the Romanian authorities had failed to take adequate steps to secure the enforcement of his access award. Furthermore the Romanian authorities were wrong to have allowed the mother to take the child out of the country, and, they had failed to assist him in the proceedings before the English courts. The father also argued that the United Kingdom authorities had failed to assist him adequately in retaining contact with the child or to ensure the child’s return to Romania. They had erred in issuing a visa to the child without his consent, and later in not sending him back to Romania after the expiry of his visa. Additionally the United Kingdom authorities had obstructed his contacts with the child as well as his entry into the country. Finally, the excessively long proceedings before the English courts had also infringed his Article 8 rights. The Court noted that under Article 19 ECHR its duty was to ensure the observance of the engagements undertaken by the Contracting States to the Convention, as interpreted in the light of the requirements of the Hague Convention. However, it was is not its function to deal with errors of fact or law allegedly committed by a national court, unless and in so far as they may have infringed rights and freedoms protected by the Convention. In the instant case the Court noted that there was no appearance of arbitrariness in the proceedings in either Romania or the United Kingdom. The Court held that it could not be maintained that either the alleged failure of the Romanian authorities to prevent the removal of the child to the United Kingdom, or, the fact that the United Kingdom authorities had issued a visa for the child and subsequently refused to order the return of the child to Romania, in itself breached the applicant’s rights under Article 8 of the Convention. Furthermore, with regard to the applicant’s complaint that the Romanian authorities had failed to assist the applicant in the proceedings before the English courts, the Court did not consider that any such obligation could be inferred from Article 8. Reviewing the evidence the Court also found that neither State had failed to take adequate steps to secure the exercise of the father’s right of access. Article 6(1) Right to a Fair Hearing The father alleged a breach of his rights under Article 6 § 1 of the Convention on two grounds: first, there had been a breach of the principle of equality of arms by the United Kingdom courts because he had not been allowed to have any information concerning his son, which put him in a position of procedural inequality vis-?-vis mother; second, the proceedings before both the Romanian and the United Kingdom courts had been excessively long. The Court found that the first complaint was unsubstantiated and therefore inadmissible. As to the second limb, the Court recalled that the reasonableness of the length of proceedings was to be examined in the light of the criteria laid down in the Court’s case-law, in particular the complexity of the case, the conduct of the applicant and that of the relevant authorities. The importance of what was at stake for the applicant in the litigation had to be taken into account. It was essential that custody cases be dealt with speedily although a delay at some stage might be tolerated if the overall duration of the proceedings was not excessive. The Court noted that the proceedings before the United Kingdom courts had commenced on 6 February 2003 and ended on 16 November 2006. The length of the proceedings had depended to a large extent, at least initially, on the conclusion of the Romanian proceedings. The Court held that it could not find any lengthy periods of inactivity on the part of the English courts which were imputable to them. The proceedings before the Romanian courts had commenced on 11 June 2003 and ended on 9 June 2005. Thus, the period to be taken into consideration was approximately two years. The Court noted that according to Article 11 of the Hague Convention any delay in the proceedings exceeding six weeks gave an applicant a right to request from the competent authorities a statement of the reasons for the delay. It was for this reason that the proceedings under the Hague Convention required special expediency. Against this background, the Court noted several factors of concern. First several adjournments had been ordered at the beginning of the proceedings, notwithstanding the urgent nature of the matter. Moreover, it took six months for the first instance court to examine the case without, however, giving a decision on the merits. In addition, although the courts twice agreed to speed up the proceedings, they subsequently had to adjourn the advanced hearings because they had failed to ensure that the observations were submitted earlier than the day before the hearing. Consequently, on both occasions the speeding up did not have the desired effect. Most importantly, however, the Court noted that between August 2004 and May 2005 there had been no developments in the proceedings before the Romanian courts. The Court rejected an explanation that this was due to the workload of the Romanian Court of Cassation. Further it held that even if this had been the reason, Article 6 § 1 imposed on Contracting States the duty to organise their judicial systems in such a way that their courts could meet Convention requirements, including the obligation to hear cases within a reasonable time. In such circumstances, and bearing in mind the urgency of the matter, the Court concluded that the length of the proceedings in Romania did not satisfy the ?reasonable time” requirement. Accordingly, whilst there had been no violation of Article 6 § 1 of the Convention in respect of the United Kingdom, there had been a breach of that provision in respect of Romania. Damages The Court awarded the applicant €1,000 in respect of non-pecuniary damage and €300 costs.