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- 06/05/2026
- Preliminary Chamber Ruling no. 239
- Other
Case details
Court identification
Other
Any reference identifying the case
Preliminary Chamber Ruling no. 239
Date of ruling
06/05/2026
Parties involved
Parent A v. Parent B
Relevant national law applied
Article 379(1) Romanian Criminal Code (Non-compliance with measures concerning the custody of a minor)
Convention provision(s)
Not applicable
Status of decision
Final decision
Publication link
Outcome
The preliminary chamber judge found the complaint procedurally admissible, but dismissed it as unfounded and upheld the prosecutor’s order closing the case concerning the alleged offence under Article 379(1) of the Romanian Criminal Code. The judge considered that the case turned primarily on the absence of an objective element of typicity, but did not change the legal basis of the closure order because of the principle of non reformatio in peius.
Abstract
The case concerned a criminal complaint filed by a father after the mother travelled with the parties' two minor children from Romania to the Republic of Moldova. The father had given notarised consent for travel for a limited period, initially until mid-April 2024 and, according to his account, later extended verbally until May 2024. The mother subsequently informed him that she would not return to Romania with the children and that she intended to initiate divorce proceedings.
The father alleged that the mother had blocked contact with him and with his relatives, had retained the children abroad without his consent, and had thereby committed the offence of non-compliance with measures concerning custody of a minor under Article 379(1) of the Romanian Criminal Code. He argued that Article 379(1) contains an autonomous hypothesis covering retention of a minor by one parent without the consent of the other parent, without the need for a prior custody or residence judgment.
Moldovan courts had issued and later extended a protection order against the father, prohibiting contact with the mother and the children and imposing distance restrictions. There were also Moldovan criminal proceedings concerning alleged domestic violence and parallel civil proceedings concerning divorce and parental responsibility. The father had also attempted to activate the 1980 Hague Convention mechanism in the Republic of Moldova, but had been directed toward the competent civil court in light of the pending protection measures and related proceedings.
The prosecution closed the case, initially relying on the absence of the subjective element of the offence. It reasoned that the children's initial travel abroad had taken place with the father's consent and that the mother's later conduct was connected with protection orders issued by Moldovan courts. The superior prosecutor maintained the classification order and added that the mother, as the parent with whom the children lived in fact, could not be treated as the active subject of the offence under Article 379(1) in the circumstances described.
The preliminary chamber judge confirmed the classification but focused primarily on objective typicity. The court held that Article 379(1) presupposes retention beyond a period fixed by a court judgment or by a notarised act, or contrary to a prior legally determined residence framework. Where parents no longer live together and disagree about the children's residence, the appropriate legal route is a civil action to determine residence and parental responsibility. The criminal offence sanctions non-compliance with such a legally determined framework, not the absence of agreement itself.