EHRM, 12-12-2006, nr. 35853/04

The Court reiterates that the essential object of Article 8 is to protect the individual against arbitrary action by public authorities. There are in addition positive obligations inherent in effective ‘respect’ for family life. 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 Keegan v. Ireland, judgment of 26 May 1994, Series A no. 290, p. 19, § 49; Ignaccolo-Zenide v. Romania, no. 31679/96, § 94, ECHR 2000-I; Iglesias Gil and A.U.I. v. Spain, no. 56673/00, § 49, ECHR 2003-V; and Sylvester v. Austria, no. 36812/97, 40104/98, § 51, 24 April 2003).

In relation to the State's obligation to take positive measures, the Court has repeatedly held that Article 8 includes 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 (see, among other authorities, Ignaccolo-Zenide, cited above, § 94; Iglesias Gil and A.U.I., cited above, § 48; and Nuutinen v. Finland, no. 32842/96, § 127, ECHR 2000-VIII).

In cases concerning the enforcement of decisions in the sphere of family law, the Court has repeatedly held that what is decisive is whether the national authorities have taken all necessary steps to facilitate the execution as can reasonably be demanded in the special circumstances of each case (see Hokkanen v. Finland, judgment of 23 September 1994, Series A no. 299-A, p. 22, § 58; Ignaccolo-Zenide, cited above, § 96; Nuutinen, cited above, § 128; and Sylvester, cited above, § 59).

In cases of this kind the adequacy of a measure is to be judged by the swiftness of its implementation, as the passage of time can have irremediable consequences for relations between the child and the parent who does not live with him or her. The Court notes that Article 11 of the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (to which Albania is not a State Party) requires the judicial or administrative authorities concerned to act expeditiously in proceedings for the return of children and any inaction lasting more than six weeks may give rise to a request for a statement of reasons for the delay (see Ignaccolo-Zenide, cited above, § 102).

The Court has also held that although coercive measures against children are not desirable in this sensitive area, the use of sanctions must not be ruled out in the event of unlawful behaviour by the parent with whom the children live (see Ignaccolo-Zenide, cited above, § 106).

The Court reiterates that the Convention must be applied in accordance with the principles of international law, in particular with those relating to the international protection of human rights (see Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 90, ECHR 2001-II, and Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001-XI). Consequently, the Court considers that the positive obligations that Article 8 of the Convention lays on the Contracting States in the matter of reuniting a parent with his or her children must be interpreted in the light of the Hague Convention of 25 October 1980 (see Ignaccolo-Zenide, cited above, § 95).

The Court notes, firstly, that it is common ground that the relationship between the applicant and his daughter falls within the sphere of family life under Article 8 of the Convention.

The events under consideration in this case, in so far as they give rise to the responsibility of the respondent State, 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.

Notwithstanding that according to the latest developments the custody proceedings in question have been reopened and are still pending, the Court can but note that the custody judgment of 4 February 2004 had been valid and remained unenforced for approximately two years. Accordingly the Court must determine whether the national authorities took necessary and adequate steps to facilitate the enforcement of the judgment at issue.

In the present case the Court observes that the proceedings to enforce the decision in the applicant's favour have been pending since April 2004. It observes at the outset that this situation is not in any way attributable to the applicant, who has approached the national authorities to put an end to it and has regularly taken steps to secure the return of his daughter.

It was only in April 2005, more than one year after the adoption of the custody decision, that the bailiffs requested the police to transmit information to them about the whereabouts of F.M. and her daughter. While these attempts to enforce the decision all took place within a period of four months in 2005, the same diligence cannot be observed in relation to the crucial period immediately following the custody decision. As noted above, it was not until January 2005 that the bailiffs began to investigate the whereabouts of F.M. It is further to be noted that no steps were taken after May 2005.

The Court notes that no satisfactory explanation has put forward to justify those delays. Similarly, no explanation has been provided by the Government for the total inactivity of the authorities once they had ascertained that F.M. was living in Greece. It is to be observed in this connection that both the applicant and F.M.'s family had informed the authorities, including at the custody hearing, that F.M. was living in Athens as an economic migrant.

The Court considers that the Government's argument about the illegal status of F.M. in Greece is speculative. The authorities took no steps to try to ascertain the whereabouts of F.M. and her daughter from the Greek authorities, a possibility provided for by the bilateral agreement between the two countries.

The Government alleged that the failure to enforce the decision in question resulted from the fact that the child was no longer in Albania, a situation which had also been caused in part by the applicant's failure to apply for urgent measures during the custody proceedings.

However, it appears that the applicant's attempts to inform the authorities of the risk of the child's abduction had gone unheeded. The Court considers that the applicant's omission to request an interim measure cannot be taken to absolve the authorities from their obligations in the matter of execution of judgments, since it is they who exercise public authority and have the means at their disposal to overcome problems in the way of execution. Moreover, the applicant could not be blamed for not having addressed requests to the Greek courts since the bilateral agreement on the matter expressively required the involvement of the Ministries of Justice of both countries for the enforcement of custody judgments in their territory (see paragraph 33 above). As noted previously, the Government have not explained to the Court's satisfaction what measures, if any, they took under that agreement to secure the return of the applicant's daughter from Greece or at least to trace the whereabouts of F.M.

The Court further observes that the wide range of legislative measures that have been implemented by the Albanian Government in order to comply with the rule of law as well as European and international treaties, do 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 is no specific remedy to prevent or punish cases of abduction of children from the territory of Albania (see paragraphs 34 et seq. above). At present, Albania is not a State Party to the above-cited Hague Convention and it has not yet implemented the UN Convention on the Rights of the Child of 20 November 1989 (see paragraphs 31 and 32 above).

The Court recalls that the European Convention on Human Rights does not impose on States the obligation to ratify international conventions. However, it does require them to take all necessary measures of their choosing to secure the individual's rights guaranteed by Article 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 Court finds that the Albanian legal system, as it stands, has not provided any alternative framework affording the applicant the practical and effective protection that is required by the State's positive obligation enshrined in Article 8 of the Convention.

In the circumstances of the instant case, notwithstanding the respondent State's margin of appreciation in the matter, the Court concludes that the efforts of the Albanian authorities were neither adequate nor effective to discharge their positive obligation under Article 8.

There has accordingly been a violation of Article 8 of the Convention.