European Court of Human Rights

 

SECOND SECTION

CASE OF VIOTTO v. THE REPUBLIC OF MOLDOVA

(Application no. 12083/20)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

13 June 2023

 

This judgment is final but it may be subject to editorial revision.

In the case of Viotto v. the Republic of Moldova,

The European Court of Human Rights (Second Section), sitting 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. 12083/20) 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 25 February 2020 by an Italian national, Mr Fabio Viotto (“the applicant”), born in 1974 and living in Motta di Livenza, who was represented by Ms C. Digore, a lawyer practising in Chișinău;

the decision to give notice of the complaint concerning Article 8 of the Convention to the Moldovan Government (“the Government”), represented by their Agent, Mr O. Rotari, and to declare inadmissible the remainder of the application;

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

the parties’ observations;

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

Having deliberated in private on 23 May 2023,

Delivers the following judgment, which was adopted on that date:

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 Italy to the Republic of Moldova by the mother and retained there.

2.  Specifically, the applicant and Ms M. (“the mother”) lived as an unmarried couple in Italy and in 2015 had a child. The family lived in Italy.

I.        Court proceedings in Italy

3.  In 2016 their relationship ended and Ms M. sought exclusive custody of the child. In the course of these proceedings in Italy, on 26 September 2017 Ms M. took the child to the Republic of Moldova and refused to return.

4.  As a result of Ms M.’s conduct and the finding of specialist reports that the applicant was fit to exercise parental authority, on 7 November 2017 the Treviso Tribunal withdrew the mother’s parental authority, granted the applicant full custody of their child and established the child’s residence in Italy. This judgment was upheld by the Venice Court of Appeal by a final decision on 6 May 2019.

5.  On 23 March 2021 the Chișinău District Court granted recognition of the Italian court judgments on the territory of the Republic of Moldova.

II.     Administrative proceedings in the Republic of Moldova

6.  On learning of his child’s removal to the Republic of Moldova the applicant sought the assistance of the Italian Ministry of Justice, which on 14 November 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 Italy. On 16 January 2018 the Moldovan Ministry of Health, Labour and Social Assistance (the national authority designated under the Hague Convention, “the Ministry”) replied that Ms M. had left the territory of the Republic of Moldova on 27 November 2017 and that the child’s whereabouts could not be established.

7.  On 3 April 2018 the Ministry requested that the police verify whether Ms M. and the child lived at a certain address in Chișinău. On 11 April 2018 the police replied that, at the time of the events, Ms M. and the child were not living at the said address.

8.  On 3 April 2018 the Ministry requested that the child protection authority assess whether the child’s return to his father would be in his best interests. The same letter established that the child was living with his mother at the said address in Chișinău. In reply, on 20 April 2018 the child protection authority informed the Ministry that they had been following the child’s case since November 2017 after the authority was summoned in a civil case initiated by Ms M. against the applicant seeking to establish the child’s residence with the mother in the Republic of Moldova. The representatives of the authority visited the address indicated on two occasions in February 2018; on the first occasion Ms M.’s brother had informed them that she was abroad and on the second no one answered the door. The authority managed to reach Ms M. by telephone through her legal representative and agreed on a visit at the said address on 7 March 2018 but on that day the representatives were met by a person claiming to be Ms M.’s father who informed them that Ms M. was avoiding contact with the child protection authority because she did not want to be found and have her child taken away. The authority submitted that they had exhausted all means available for establishing the child’s whereabouts and that they could conduct a best-interests assessment only if a court requested it.

9.  On 12 September 2019 the Ministry reiterated its request to the child protection authority to assess whether the child’s return to his father was in his best interests. The child protection authority replied that in September 2019 two more visits were carried out at the same address as before but no one answered the door. The authority noted that Ms M. had indicated the same address as her residence on the statement of claims lodged against the applicant (see paragraph 8 above).

III.   Court proceedings in the Republic of Moldova

10.  On 25 April 2018 the applicant initiated court proceedings in the Republic of Moldova seeking the return of the child to Italy, relying on the Hague Convention and subsidiarily on the judgments of the Italian courts (see paragraph 4 above). On 6 December 2018 the Chișinău District Court rejected his claims as ill-founded, noting that no abduction had occurred because Ms M. and the child had crossed the border lawfully and no criminal proceedings for abduction had been initiated. The court also relied on the fact that Ms M. and the child were not on the territory of the Republic of Moldova at the time of the proceedings and that the judgment of the Treviso Tribunal was not final. Assessing the best interests of the child, the court noted that he held Moldovan nationality and, while the applicant was not prevented from visiting the child, returning him to the applicant would result in separation from his mother, which would have a negative impact.

11.  The applicant appealed against this judgment. He submitted that the child had been abducted because neither he, nor the Italian child protection judge, had approved the child’s change of residence from Italy to the Republic of Moldova. He also referred to evidence in the file, such as the certificate of 26 April 2018 of the Moldovan Border Police Inspectorate, the statements of Ms M.’s legal representative and other documents, which attested to the child’s presence on the territory of the Republic of Moldova from 27 September 2017 onwards, including the mother’s statements before the prosecutor that the child was attending pre-school. He argued that the court had failed to assess the reasons why the Italian courts had deprived Ms M. of parental authority and to examine the case without delay.

12.  On 18 April 2019 the Chișinău Court of Appeal rejected the applicant’s appeal, reiterating the reasons of the first-instance court. The applicant appealed against this judgment noting, among other things, that on 6 May 2019 the Italian court judgment had become final (see paragraph 4 above). He also relied on Article 8 of the Convention and on the Court’s case‑law concerning the international abduction of children.

13.  On 2 October 2019 the Supreme Court of Justice rejected by a final decision the applicant’s appeal on points of law as ill-founded.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

14.  The applicant complains under Article 8 of the Convention of the failure of the Moldovan authorities to assist him in being reunited with his child swiftly after the latter had been taken from Italy to the Republic of Moldova by his mother and retained there.

15.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

16.  The relevant principles regarding the right to respect for family life under Article 8 of the Convention in cases concerning the return of a child under the Hague Convention are summarised in X v. Latvia ([GC], no. 27853/09, §§ 92-108, ECHR 2013) and have recently been reiterated in Michnea v. Romania (no. 10395/19, §§ 35-39, 7 July 2020). In all decisions concerning children, their best interests must be paramount. The same philosophy is inherent in the Hague Convention, which associates this interest with restoration of the status quo by means of a decision ordering the child’s immediate return to his or her country of habitual residence in the event of unlawful abduction, while taking account of the fact that non-return may sometimes prove justified for objective reasons that correspond to the child’s interests. Notwithstanding the State’s margin of appreciation, the Court must satisfy itself that the decision-making process leading to the adoption of the impugned measures by the domestic courts was fair and allowed those concerned to present their case fully, and that the best interests of the child were defended (Michnea, cited above, §§ 36 and 38).

17.  The Court observes that it is undisputed that the Moldovan courts’ decision denying the return of the applicant’s child to Italy constituted an interference with the applicant’s right to respect for his family life. Assuming that the interference was “in accordance with the law” and pursued one or more legitimate aims, the Court will examine whether it was “necessary in a democratic society”.

18.  In examining the fairness of the decision-making process leading to the adoption of the impugned measures by the domestic courts, and in particular the specific reasons given by these courts for their decisions, the Court notes from the outset the lack of coordination between the authorities in establishing the child’s whereabouts and the lack of effective action to track the mother at an address which she herself had indicated as hers in parallel court proceedings. In particular, when contacted by their Italian counterpart in November 2017, the Moldovan authorities had relied on the alleged departure of Ms M. from the territory of the Republic of Moldova on 27 November 2017 (see paragraph 6 above) and had taken no further action. However, it became known later that the child had been on the country’s territory continuously since September 2017 (see paragraph 11 above). The Government did not provide any evidence that the authorities had made any genuine attempt to find the child after having received the request from their Italian counterpart, other than several visits and telephone calls by the child protection officers, or that they had been unable to take any effective action due to the child’s location in a region outside its effective control (see paragraphs 7-9 above).

19.  Furthermore, in examining the reasons for the domestic courts to consider the Hague Convention not to be applicable for lack of a wrongful child abduction (see Article 3 a) of the Hague Convention), the Court notes that the child was born in Italy and lived and attended nursery there before his removal in 2017 to the Republic of Moldova. Prior to removal the applicant and Ms M. exercised joint custody and proceedings were pending to award exclusive custody to one of the parents. As a result of those proceedings, the applicant had been granted full custody.

20.  The domestic courts failed to establish Italy as the child’s habitual residence prior to removal and focused merely on his integration in the Republic of Moldova after the removal. This does not sit well with the purpose of the Hague Convention, which is primarily to safeguard children’s best interests by restoring the status quo and ensuring their immediate return to their country of habitual residence in the event of unlawful abduction. The domestic courts did not attach any weight to the fact that the child had been removed from Italy without the applicant’s consent, which breached his rights protected by law and interfered with their normal exercise, merely noting that the child had lawfully crossed the border with proper travel documents and in legally designated areas. Therefore, it appears that the provisions of the applicable law were in the present case interpreted and applied in such a way as to render meaningless the applicant’s lack of consent to the child’s departure to the Republic of Moldova and subsequent stay there.

21.  The finding that the habitual residence had been in Italy and the existence of shared custody at the time - and exclusive custody of the applicant in the course of proceedings (see paragraph 4 above) - would normally have been sufficient to reach the conclusion that the Hague Convention was applicable and that the child’s removal from Italy without the applicant’s consent had been wrongful in terms of that Convention. This would then have triggered the duty to return the child to Italy under Article 12 of the Hague Convention, unless one of the exceptions provided for by Article 13 of that Convention was met. No such assessment was made by the domestic courts, insofar as the Hague Convention was found not to be applicable in the case.

22.  Equally important, the Court finds no indication in the domestic courts’ decisions that the best interests of the child were appropriately assessed, determined and taken into account in making its assessment of the family situation, as required by Article 8 of the Convention. On the contrary, the correspondence of the child protection authority indicates that the authorities had not had the chance to make any assessment because the mother had prevented their contact with the child (see paragraphs 8 and 9 above). Contrary to the Italian courts, which had relied on specialist reports, the Moldovan courts’ assessment that the child’s separation from the mother outweighed the negative impact of the child’s separation from his father does not appear to rely on any specialist evaluation. While the courts referred to the applicant’s right to visit the child, they never assessed how the applicant could have exercised this right when Ms M. was hiding the child.

23.  In addition, the Court notes that the court proceedings seeking the child’s return were initiated by the applicant after no action had been taken by the Moldovan authorities for over five months since the request for return had been issued by the Italian authorities (compare with Crețoi v. the Republic of Moldova [Committee], no. 49960/19, § 10, 14 December 2021, where the Ministry had initiated proceedings with a view to the child’s return). The domestic courts rendered the final decision after a year and a half. Even though the six-week time-limit in Article 11, paragraph 2, of the Hague Convention - which applies both to first-instance and appellate proceedings - is non-obligatory, the Court considers that exceeding that time‑limit by more than sixty-nine weeks cannot be viewed as being in compliance with the procedural requirements implicit in Article 8 (compare Adžić v. Croatia, no. 22643/14, § 93, 12 March 2015). This is particularly the case when the first‑instance court proceedings unfolded at a slow pace: the first mediation hearing took place seven weeks after the case was introduced, with subsequent hearings being scheduled at intervals from four to seven weeks, including for reasons due to the judge’s annual leave schedule.

24.  Consequently, the Court finds that the applicant suffered a disproportionate interference with his right to respect for his family life, in that the decision-making process under domestic law did not satisfy the procedural requirements inherent in Article 8 of the Convention.

25.  Lastly, the Court observes that there is no basis for the present judgment as such to be interpreted as requiring the respondent State to return the child to Italy (see, mutatis mutandis, Adžić v. Croatia (no. 2), no. 19601/16, § 96, 2 May 2019, and the cases cited therein). After a five‑year separation, the child and the applicant would need assistance in rebuilding their relationship and it would be in the child’s best interest for the authorities to consider transitional and preparatory measures before making any change in the child’s situation (see, mutatis mutandis, T.A. and Others v. the Republic of Moldova, no. 25450/20, § 62, 30 November 2021, and the cases cited therein).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

26.  The applicant claimed 50,000 euros (EUR) in respect of non‑pecuniary damage and EUR 4,286.36 in respect of costs and expenses, including EUR 1,653.11 for travel expenses from Italy to the Republic of Moldova to attend court hearings, EUR 568 for translation and legalisation costs of documents in domestic proceedings, EUR 2,000 in lawyer’s fees for representation before the Court and EUR 65.25 in translation costs in the proceedings before the Court. The applicant submitted travel, translation and legalisation invoices, timesheets and invoices for legal services before the Court.

27.  The Government submitted that the applicant’s claims were excessive. Moreover, they argued that there was no causal link between the proceedings before the Court and the applicant’s travel to the Republic of Moldova.

28.  The Court awards the applicant EUR 4,500 in respect of non‑pecuniary damage, plus any tax that may be chargeable.

29.  Having regard to the documents in its possession, the Court considers it reasonable to award EUR 4,000 covering costs under all heads, plus any tax that may be chargeable to the applicant.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the application admissible;

2.      Holds that there has been a violation of Article 8 of the Convention;

3.      Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 4,500 (four thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 4,000 (four thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 13 June 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

       Dorothee von Arnim                                                Jovan Ilievski
          Deputy Registrar                                                      President