BÎRSAN proti Moldavsku

SECOND SECTION

DECISION

Application no. 52981/20
Nicolae BÎRSAN
against the Republic of Moldova

The European Court of Human Rights (Second Section), sitting on 14 March 2023 as a Committee composed of:

Jovan Ilievski, President,
Lorraine Schembri Orland,
Diana Sârcu, judges,
and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 52981/20) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 24 November 2020 by a Canadian and Romanian national, Mr Nicolae Bîrsan (“the applicant”), who was born in 1969 and lives in Timișoara and who was represented by Ms I. Rădescu, a lawyer practising in Bucharest;

the decision to give notice of the application to the Moldovan Government (“the Government”), represented by their then Agent, Mr O. Rotari;

the decision to give priority to the application (Rule 41 of the Rules of Court);

the parties’ observations;

noting that the Romanian Government did not make use of their right under Article 36 § 1 of the Convention to intervene in the proceedings;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The present case concerns the alleged failure of the Moldovan authorities to assist the applicant in being reunited with his child after the latter had been taken from Romania to the Republic of Moldova by the mother and kept there with limited parental contact rights.

2. Specifically, the applicant and Ms. B. (“the mother”) lived as a married couple in Romania and in 2016 had a child. On 7 January 2017 the mother took the child with her to the Republic of Moldova and refused to return the child.

3. The applicant sought the assistance of the Romanian Ministry of Justice, which on 16 March 2017 made a formal request under the Hague Convention on the Civil Aspects of International Child Abduction (hereinafter “the Hague Convention”) to the Moldovan authorities to return the child to Romania and to secure the applicant’s contact with the child, under Articles 7 and 21 of that Convention.

4. On 5 April 2017 the Municipal Department for Child Protection (“child-protection authority”) informed the Moldovan Ministry of Health, Labour and Social Assistance (the national Central Authority designated under the Hague Convention, “the Ministry”) that the child had been located and that following an assessment of his situation in the care of the mother and his age (eleven months), a return to Romania was not considered to be in his best interests.

5. Three sets of parallel proceedings ensued before the Moldovan courts: (i) proceedings concerning the return of the child under the Hague Convention, (ii) proceedings concerning the divorce of the applicant and Ms B., and (iii) proceedings concerning the determination of the child’s domicile with the mother. While these cases were pending, on 2 August 2017 the child-protection authority approved a contact schedule, which allowed the applicant to see his child in the mother’s presence on certain days.

6. On 29 May 2017 the Ministry initiated proceedings requesting the court to decide on the child’s return to Romania in application of the Hague Convention. The Ministry provided the court with the best interests assessment made by the child-protection authority. The applicant and Ms B. had the procedural standing of respondents in these proceedings. On 2 November 2017 the Buiucani District Court rejected the request to return the child to Romania, concluding that it was in his best interests to remain in the Republic of Moldova with his mother. The applicant and the Ministry appealed against this judgment. However, on 5 June 2018 the Chișinău Court of Appeal rejected the appeals as time-barred. On 10 July 2018 the Supreme Court of Justice dismissed the applicant’s appeal on points of law, noting that he had failed to comply with the thirty-day time-limit for submitting his appeal against the first-instance court judgment.

7. On 27 February 2017 Ms. B initiated court proceedings against the applicant seeking their divorce and the determination of the child’s domicile in the Republic of Moldova. The proceedings were subsequently disjoined. On 5 June 2018 the Centru District Court granted their divorce; this decision was subsequently upheld and became final.

8. In the course of the disjoined proceedings concerning the determination of the child’s domicile in the Republic of Moldova, on 23 February 2018 the applicant sought an interim measure intended to provide a different contact schedule, arguing that the schedule approved on 2 August 2017 was not convenient and sufficient. On 26 February 2018 the Centru District Court refused to grant the applicant’s request noting that parental contact rights were not the subject matter of the proceedings and that the formal decision on contact rights approved on 2 August 2017 (see paragraph 5 above) could be challenged in court separately. On 3 May 2018 the Chișinău Court of Appeal upheld this decision.

9. On 12 March 2019 the Centru District Court upheld Ms. B.’s claim and determined the child’s domicile with her in the Republic of Moldova; it further ordered the applicant to pay child maintenance. On 25 March 2020 the Supreme Court of Justice finally upheld the appellate decision, which reduced the amount of alimony but left unchanged the part of the judgment concerning the child’s domicile.

THE COURT’S ASSESSMENT

10. The applicant complained under Article 8 of the Convention about the failure of the Moldovan authorities to assist him in being reunited with his child swiftly after the latter had been taken from Romania to the Republic of Moldova by the mother and retained there and to ensure his parental contact rights.

11. The Government submitted that the applicant had not raised these complaints in substance before the domestic courts and therefore had not exhausted domestic remedies. In particular, the applicant had failed to appeal in time against the judgment of the Buiucani District Court of 2 November 2017, which had refused the return of his child to Romania under the Hague Convention. As to the contact rights, the Government noted that the applicant had never appealed or requested the adjustment of the contact schedule approved by the child-protection authority on 2 August 2017, although this venue had been and remained open to him. The applicant’s request for an adjustment of that schedule in the form of interim measures in proceedings concerning the divorce and the determination of the child’s domicile was procedurally incorrect.

12. The applicant argued that it had been for the Ministry to appeal against the judgment of 2 November 2017 and provided the correspondence between the Romanian Ministry of Justice and the Moldovan Ministry to this effect. The applicant did not comment on the possibility to request the adjustment of the contact schedule of 2 August 2017 but considered that his request for interim measures was an adequate venue. He also submitted the correspondence between the Romanian Ministry of Justice and the Moldovan Ministry concerning contact rights under Article 21 of the Hague Convention.

13. The general principles concerning the exhaustion of domestic remedies and the principle of subsidiarity have been summarised in Vučković and Others v. Serbia ((preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014). The Court stresses, in particular, that the principle of subsidiarity is one of the fundamental principles on which the Convention system is based. In order to enforce the principle of subsidiarity, applicants are required to make use of effective remedies at domestic level (see, among other authorities, Vučković and Others, cited above, § 69).

14. In the present case, the applicant indeed failed to appeal within the statutory time-limit against the Buiucani District Court judgment of 2 November 2017, which had refused the return of the child to Romania under the Hague Convention (see paragraph 6 above). Given his procedural standing of respondent in those proceedings, the applicant could personally lodge an appeal against that judgment, which he did but outside the statutory time-limit. This fact is not affected by the Ministry’s separate right to appeal and their subsequent failure to submit an appeal within the applicable time-limit.

15. In respect of contact rights, the applicant was clearly aware of the contact schedule approved by the child-protection authority on 2 August 2017 (see paragraph 5 above). The Court also notes the correspondence between the Moldovan Ministry and the Romanian Ministry of Justice between July and September 2020 referring to the contact schedule established on 2 August 2017 as a measure meant to secure the applicant’s visiting rights under Article 21 of the Hague Convention. Although the applicant was unsatisfied with this arrangement, he failed to seek its adjustment by submitting the relevant request to the child‑protection authority and, eventually, to a court, under Section 64 (2) of the Family Code. This venue was and remains open to him to date. The applicant has not explained why this remedy would have been inadequate or ineffective in his case. At the same time, his request for interim measures in another set of proceedings was ineffective to attain that aim.

16. In the absence of domestic proceedings addressing in substance his parental contact rights, either concerning the arrangement for visits as such (days and duration of the visit) or their respect by the mother, to proceed with the examination of this complaint would be contrary to the subsidiary character of the Convention machinery.

17. Therefore, this application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 6 April 2023.

Dorothee von Arnim Jovan Ilievski
Deputy Registrar President