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- 01/11/2017
- Preliminary Chamber Ruling no. 838
- Other
Case details
Court identification
Other
Any reference identifying the case
Preliminary Chamber Ruling no. 838
Date of ruling
01/11/2017
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 allowed the applicant’s complaint, set aside the prosecutor’s decisions to discontinue the proceedings, and referred the case back to the prosecutor for a criminal investigation to be opened against the respondent mother under Article 379(1) of the Romanian Criminal Code.
Abstract
The ruling concerns a complaint under Article 379(1) of the Romanian Criminal Code, following the alleged retention in Romania of two children whose habitual residence had been in Italy. The children had travelled to Romania for the summer holiday with the father’s consent but were not returned to Italy at the end of the authorised period. The father argued that, from that point onward, the children’s stay in Romania had become an unlawful retention.
The father pursued both foreign and Romanian civil remedies. In Italy, civil proceedings concerning separation and parental authority resulted in an order placing parental authority and the children’s residence with the father. In Romania, the father also brought return proceedings under the 1980 Hague Convention. The Bucharest County Court allowed the return request, and the Bucharest Court of Appeal dismissed the mother’s appeal, so that the return order became final and enforceable.
After the return order became final, the father sought voluntary compliance and then initiated enforcement. The bailiff summoned the mother to hand over the children and their travel documents on 20 January 2017, but she did not appear. The father then filed a prior criminal complaint under Article 379(1) of the Romanian Criminal Code.
The prosecutor issued a discontinuance decision on the ground that the prior complaint had been lodged out of time, treating the relevant starting point as either the initial retention of the children after the summer of 2015 or the earlier civil decisions. The preliminary chamber judge rejected that approach. The court held that Article 379(1) of the Romanian Criminal Code is a continuing offence and that, in this case, the applicant did not have certainty that the mother would also refuse to comply with the enforceable Romanian return order until the failed enforcement attempt of 20 January 2017.
On that basis, the court held that the prior complaint had been filed within the statutory time limit. It set aside the prosecutor’s decisions and sent the case back for criminal investigation in relation to Article 379(1). The ruling did not decide criminal liability on the merits; it resolved the procedural issue of the timeliness of the prior complaint and required the prosecution to continue the investigation.