| Applicant name | CZAJKOWSKI |
| Applicant type | Natural person |
| Number of applicants | 1 |
| Country | Romania |
| Application no. | 37024/20 |
| Date | 05/09/2023 |
| Judges | Faris Vehabović, President, Iulia Antoanella Motoc, Branko Lubarda |
| Institution | Court |
| Type | Judgment |
| Outcome Art. 8 | Violation |
| Reason | Positive obligation |
| Type of privacy | Relational privacy |
| Keywords | Parental authority; the Hague Convention; return order |
| Facts of the case | The applicant married X, a Romanian national, in 2007 in the United Kingdom. The couple moved to Spain later, where they lived with their sons Y and Z, born in 2009 and 2012. In 2018 X left Spain with the children for Romania and filed for device, but in 2022, that request was rejected by the Romanian court for lack of jurisdiction. Since 2018, the applicant lost contact with the children, and the applicant immediately lodged an application with the Bucharest county court under the Hague Convention, seeking the return of his children to their habitual residence in Spain. The court established that the children legally resided in Spain; however, finding that the applicant had behaved violently towards his children, it dismissed the request, on the grounds that their return would place them at grave risk. On Appela, however, the Bucharest court of appeal ordered the return of the children to Spain, finding that the allegations of “grave risk” had not been convincingly substantiated. X lodged a request for the stay of the return order, pointing out that after the issuing of the return order, a court had fixed the children’s temporary residence with their mother pending the outcome of the divorce proceedings, which, however, a Court dismissed. X was ordered to pay the a daily penalty of 100 Romanian Lei (RON) for the delays in the enforcement of the return order. X was required to pay a total of RON 81,800 (EUR 16,500) and X’s bank accounts were seized. A criminal complaint by applicant against X was dismissed. Applicant also issued court proceedings to establish contact rights. A district court granted shared parental authority, fixed the children’s residence in their mother and set up a detailed contact schedule in favour of the applicant. In appeal, however, that decision was quashed for lack of territorial competence. |
| Analysis | Although the applicant also invokes Articles 6 and 13 ECHR, the ECtHR decides to discuss this cases solely under Article 8 ECHR. As to that provision, the Court states simply that the measures taken so far by the authorities have not been sufficient, timely or adequate to secure the children’s return to Spain, even under the particular circumstances where the children are clearly opposed to going to Spain with their father. The bailiff did little more than organise two meetings between the parties and that the enforcement of the seizure of X’s bank accounts was still pending. The child protection authority provided only limited help to increase the chances for an enforcement. With respect to the interim request for contact rights, however, the ECtHR agrees that the Romanian courts did not have jurisdiction. |
| Other Article violation? | No violation 6 or 13 ECHR |
| Damage awarded | (a) that the respondent State is to pay the applicant, within three months, the following amounts in euros at the rate applicable at the date of settlement: (i) EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 3,950 (three thousand nine hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; |
| Documents | Judgment |