Bajrami v. Albania - 35853/04

Bajrami v. Albania - 35853/04

Judgment 12.12.2006 [Section IV]

Article 8

Article 8-1

Respect for family life

No specific remedy for preventing or punishing child abduction from the territory of the respondent State, resulting in non-enforcement of custody award: violation.

Facts: In 1998 the applicant and his wife separated and his wife moved out with their daughter to live with her parents. The applicant only managed to see his daughter once after the separation as his ex-wife and her parents refused to give him access to her. In 2003 he brought divorce proceedings, at the same time requesting the police to cancel his daughter's passport in view of the fact that his wife was planning to take her to Greece without his consent. Despite that request the applicant's wife managed to take her daughter to Greece. Later the applicant was awarded custody of the child but the judgment was not enforced.

Law: The custody judgment had remained unenforced for approximately two years for which no blame could be attributed to the applicant, who regularly took steps to secure the return of his daughter. Under Albanian law there was no specific remedy to prevent or punish cases of abduction of children from the territory of that country. In particular, Albania is not a State Party to the Hague Convention and has not yet implemented the UN Convention on the Rights of the Child, whereas the European Convention on Human Rights requires States to take all necessary measures to secure the reunion of parents with their children in accordance with a final judgment of a domestic court. The Albanian legal system did not provide any alternative framework affording the applicant the practical and effective protection that was required by the State's positive obligation enshrined in Article 8.

Conclusion: violation (unanimously).

Article 41 – EUR 15,000 for non-pecuniary damage.