Resolution of the European Court of Human Rights of September 4, 2018 in the case of Cristian Catalin Ungureanu (Cristian Catalin Ungureanu) v. Romania (application No. 6221/14).
In 2014, the complainant was assisted in preparing an application. Subsequently, the application was communicated to Romania.
In the case, an application is lodged against the applicant for a prolonged lack of communication with his child in connection with the absence of a statutory opportunity to determine the right to see a child before the divorce procedure is completed. The case has violated the requirements of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
In the fall of 2012, the applicant's wife left their common home and filed documents for divorce and full custody of their six-year-old son. The applicant filed a motion for a security injunction, demanding to give him full or joint custody of his son or alternatively the right to see the child until the divorce procedure is completed. In January 2013, the district court, noting that the applicant was not prevented from seeing his son in a new place of residence where the applicant's wife had moved, found that a temporary change in the child’s place of residence would not be in his best interest and that in any case Romanian law did not allow right to visit a child until the divorce ends. This court decision was left unchanged. The applicant could not see his son from June 2013 until November 2016, when the final decision was made in the divorce case, where the mother of the child was given full care, and the applicant had the right to see the child.
QUESTIONS OF RIGHT
Although the Romanian courts did not always reject as inadmissible for consideration on the merits the petition for granting the right to visit a child, presented during the divorce procedure, nothing in the provisions of Romanian law allowed the applicant to expect a different decision. In fact, the norms of the law under consideration, by their nature, excluded the actual circumstances of the case from the jurisdiction of the domestic courts. This factor was prevailing when the courts passed their decisions. Further, the argument that it was the applicant who could not see the child could not be considered an effective verification of the best interests of the child, but was a simple description of the situation that existed at the time of the events in question. Moreover, the Romanian courts did not assess the groundlessness of the situation and did not respond to the petition of the applicant to develop a more structured plan of meetings with the child. Romanian courts left the exercise of the right, which was fundamental both for the applicant and for his child, at the discretion of the applicant's spouse, with whom (at the material time) the applicant had a conflict of interest.
In addition, the divorce procedure lasted more than four years, affecting the relationship of the applicant and his child for about three years and five months. Although the nature of the problem was due to the insufficient quality of Romanian legislation, the duration of the above period led the European Court to conclude that the domestic authorities failed to fulfill their positive obligation under Article 8 of the Convention (see European Court of Justice judgment on M. and M. v. Of Croatia "(M. and M. v. Croatia) of September 3, 2015, application No. 10161/13).
The case was a violation of Article 8 of the Convention (adopted unanimously).
In application of Article 41 of the Convention. The Court awarded the applicant EUR 8,000 in respect of non-pecuniary damage.